Considering Copyright: the Attorney-General’s Department’s review of copyright enforcement issues

On 9 December 2022, the Attorney-General’s Department commenced a consultation process into its review of Australia’s copyright enforcement regime. The Department is seeking feedback from all members of the public, however, it is particularly interested in the views of copyright owners and users, as well as online services providers and other third-party intermediaries.

The Department has released an issues paper outlining specific questions and themes it wishes to address in the course of its review process. The Department’s broad purposes for undertaking the review are to:

• understand current and emerging enforcement priorities and challenges;
• gather views on whether the copyright enforcement regime remains effective and proportionate; and
• seek feedback on whether existing enforcement mechanisms should be strengthened and how this can be done without imposing unreasonable burdens.

Addressing current and emerging copyright infringement challenges

A major focus of the issues paper is the changing technological landscape and its impact on the effectiveness of a regime that pre-dates the digital age. The paper notes that technological advancements and the onset of the COVID-19 pandemic have contributed to increased demand for online content and the provision of this content though various digital platforms. As a result, an emerging concern is the proportion of online users seeking to access content in a way that may infringe copyright.

The issues paper refers to the impact of online content distribution on the ability to monitor infringement globally and the jurisdictional difficulties in attempting to pursue infringing activity outside of Australia. On the consumer end, the paper notes that online users may have trouble distinguishing between lawful and unlawful ways of accessing and using copyrighted materials. The Department is therefore seeking feedback on the nature and scale of copyright infringement challenges faced by industry actors in Australia. Information on emerging methods of copyright infringement is also being sought, along with data on the scale and economic impact of infringement. Observations on the perceived drivers of copyright infringement is also of interest to the Department.

The effectiveness of the copyright enforcement framework

The Department seeks feedback on how, and to what extent, various industry-driven and statute-based enforcement mechanisms are used to address infringement, and how these existing mechanisms may be improved.

Industry-driven mechanisms

Industry-driven mechanisms involve copyright owners, users and service providers engaging with each other, outside the legal system to address infringing activities. Current industry-driven mechanisms include:

• copyright owners issuing direct takedown notices;
• collaborating with other industry participants to identify and takedown infringing material;
• utilising industry-developed tools (such as automated content recognition) to identify and control online use of material by third parties; and
• negotiating commercial arrangements with infringers, allowing continued use of content with authorisation.

The Department seeks feedback on whether these industry-driven mechanisms are being used appropriately (or at all) and the factors that drive actors to utilise specific actions. The costs, benefits and risks of these mechanisms, as well as ways in which industry participants can collaborate to more effectively prevent infringement are also topics of interest.

Statute-based mechanisms

The issues paper also invites comment on infringement mechanisms available under the Copyright Act 1968 (Cth), including the website blocking scheme, authorisation liability and the safe harbour scheme.

The current website blocking scheme allows copyright owners to apply to the Federal Court for an injunction under section 115A of the Copyright Act 1968 (Cth). Such injunctions require carriage services providers to block access to overseas websites available to Australian consumers, which have the primary purpose or effect of infringing copyright. Copyright owners may also request that a search engine provider take reasonable steps not to provide search results for the infringing online location.

The issues paper notes that according to data, the website blocking scheme has been well-utilised since its introduction and has had a positive effect in reducing consumer access to infringing content. However, the Department now seeks industry feedback on whether the website blocking system, its application process and resultant injunctions are truly effective. Input on ways to amend the scheme to address the rise of technologies allowing users to navigate around site blocks (for example, though virtual private networks (VPNs)) is also sought. Whether amendments of this nature would have broader or unintended consequences is also a consideration. This is because users may be accessing tools, including custom domain name system (DNS) services, which allow blocked domain addresses to be found, for the legitimate purposes of improving internet speed and security.

The Department also seeks feedback on current authorisation liability provisions, which hold parties who have authorised another to perform infringing acts legally responsible. The paper recognises that the authorisation liability scheme was enacted prior to the digital age and the online space has increased the range and complexity of circumstances in which a party may be found to have authorised infringement. For example, an online service provider may be found by a court to have authorised the conduct of a person who merely uses their platform to upload infringing material. As such, the Department wishes to consider whether there is sufficient clarity around the circumstances in which someone will be classed as an authorised user, given the courts’ interpretation of this concept to date.

The safe harbour scheme is also a subject of the issues paper. The scheme applies to carriage service providers and some online service providers operating in the public sector. It does not extend to digital platforms. The scheme protects providers against financial liability for some forms of direct infringement. It also limits the remedies that can be taken against providers when the infringement is not something they could have controlled or initiated, despite it occurring through their system. To be eligible for the safe harbour scheme, the provider must comply with certain conditions, such as the scheme’s statutory notice and takedown procedure. This procedure is enshrined in the Copyright Regulations 2017 and outlines a standardised means of making and dealing with reports of infringement. The Department seeks feedback on whether the safe harbour scheme and the statutory notice and takedown procedure is effective in both combatting infringement and protecting the legitimate interests of service providers.

Use of the legal system and law enforcement in relation to copyright infringement

The Department seeks feedback on the ability of parties to effectively access and use the legal system, as well as interact with law enforcement bodies to enforce copyright. The issues paper notes that whilst the Federal Court has an “expedited claims process” which allows parties to seek faster and more informal hearings, there are still significant resource costs in seeking legal advice and pursuing infringement matters. Input is therefore requested on implementing an approach taken by overseas jurisdictions (including the United States and the United Kingdom), whereby tailored mechanisms to streamline consideration of low-value copyright matters have been introduced. To improve accessibility, these mechanisms typically do not require legal representation, require only basic documentation to be filed, involve short hearing times and can occur via video conference. Feedback is also sought on factors that influence a party’s decision to bring certain types of copyright infringement actions, barriers to accessing the legal system in general and experiences of the courts or law enforcement once engaged.

The Department generally seeks feedback on whether the current civil and criminal penalties that copyright owners may seek to remedy infringements are effective and suitable. The Department also seeks specific feedback on whether copyright owners are aware of the option to engage with the Australian Border Force (ABF) via the Notice of Objection Scheme. Copyright owners (or objectors) are entitled to apply for a Notice of Objection, which once approved, allows the ABF to seize imported goods suspected of infringing copyright. If the importer makes a claim for the goods to be released, the objector will be notified and will have 10 working days to either commence legal action or consent to the release.