Australia is our location for the latest clampdown on content piracy, as the country’s government floats new legislation that would significantly expand the ability of rights holders to challenge sites that host their work without permission.
The Copyright Amendment (Online Infringement) Act 2015 proposes measures that would require carriers to block sites that are found to infringe on IP, or those who facilitate such infringement, with “flagrancy” or “disregard.” Such language clearly targets willful piracy, while offering a mechanism to flag infringement to services that are unwittingly being used to get around the law.
There has been some push back against the ability of plaintiffs to bring an unlimited number of blocking requests before the Australian courts to take action against them, but there are a number of checks and balances within the bill to ensure only legitimate complaints make it through.
First and foremost, the courts in which cases will be brought have significant room to interpret each claim on its own merits, or lack thereof. The legislation mentions “reasonable steps” in many sections, and grants judges the ability to “limit the duration of, or rescind or vary an injunction.” That provides a lot of space to send warnings, set expiration dates on penalties, and hear appeals based on improved behavior by infringing sites.
That last point is crucial, as a key part of intellectual property enforcement should be the ability for sites to realize their mistakes and rehabilitate to become legitimate content providers. As we’ve seen with the US Trade Representative’s “Most Notorious Markets” initiative, the mere act of flagging a site’s infringing activity can be enough to prompt a change. When attached to a court order and the threat of operations being curtailed, the law starts to give rights holders some legal bite, where in many cases they have only the bark of flagging piracy and hoping intermediaries will take care of the rest.
In Australia and around the world piracy really comes down to two camps, those who intentionally host infringing content for their own profit, and those who run a service that is abused by others to host said content. For the former, the examples of Megaupload and The Pirate Bay are the path that lies ahead, being pursued across the globe until illegal operations are shut down.
For those who lie in the more gray area of intermediary, there must be a process that raises the question of a piracy problem and requires the operation to act promptly to remedy it. Stamping out piracy on any platform, in Australia or hosted further afield, sets the stage for online carriers to run a completely legitimate service that operates on the right side of copyright law and attracts reliable investment on that basis.
When infringement is flagged but a service still opts to look the other way, or fight legal action, that’s where the line is crossed between being “unwitting,” and moves into the “flagrant” piracy that Australia’s new legislation will take aim at, should it pass into law. In that case, the number of block requests is of little concern.
What really matters is how any service accused of infringement makes its case, and how quickly it acts to remedy the piracy problem, if and when the court rules that one exists. Creators have neither the time, nor the inclination to spend filing for the removal of content from legitimate sites. For any situations where such examples slip through, it’s only right and proper that a trusted legal system be brought into play to dismiss the case.
Additional powers for creators to protect their intellectual property, balanced by the ability of a court to hear their complaints and judge them against the country’s legal framework. Beyond the usual scaremongering that occurs by those afraid of being caught with their hands in the cookie jar, such legislation should be welcomed with open arms by anyone who respects creativity and the intellectual property rights that come with it.