Site-blocking laws announced as industry faces major anti-piracy code

The Federal Government has announced new anti-piracy legislation allowing rights holders to request the blocking of overseas websites that facilitate piracy.

In addition, the Attorney-General and Minister for Communications are calling on rights holders and ISPs to jointly form an industry code for addressing piracy, including a 'three-strikes' style notification system for copyright infringement.

However, if rights holders and ISPs are unable to agree on common ground, the Government has warned that it will step in and "impose binding arrangements" on the industry by April 8, 2015.

In announcing the new site-blocking legislation, Communications Minister Malcolm Turnbull insisted that allowing rights holders to request a court order to block IP infringing websites "is not -- repeat, not -- an internet filter".

"What we are simply doing is we're going to amend the Copyright Act to make it more straightforward for rights owners to do what they can do now," he said. "What we're talking about is a blocking order being made by a court, and the rights owner would have to establish this site was being used to stream unlawful content, it's not just an incidental feature."

According to Minister Turnbull, the suite of measures announced today are "the least burdensome and most flexible way of responding to concerns about online copyright infringement", while also protecting the intellectual property of rights holders.

Attorney-General George Brandis and Minister Turnbull announced the measures to industry leaders in a co-signed letter [PDF], saying that "for various reasons, agreement has not been reached" between the ISPs and rights holders on how best to tackle online copyright infringement.

However, the Ministers have called on both sides of the debate to develop a code (to be registered by ACMA under the Telecommunications Act) to overcome the issue. This code would need to address a number of issues including:

• ISPs taking steps to deter piracy and bringing in a "warning notice scheme" to notify users when they are infringing IP
• A process to allow rights holders to take action against infringers "after an agreed number of notices"
• Education on legitimate alternatives to piracy
• Fair distribution of costs between ISPs and rights holders
• Safeguards for consumers

This code would then be used in court to assess whether parties have taken "reasonable steps" to prevent piracy for the purposes of determining authorisation liability under the Copyright Act. However, in cracking down on infringers, Turnbull said ISPs "should be required to cut off people's [internet] access or slow the speed of their connection".

While the Minister said he was "focused on persuading the industry to get on with the job" of tackling piracy, he conceded there were limitations to any code that could be introduced.

"We're playing a percentage game here," he said. "You're never going to eliminate all piracy, what we believe this will do is materially reduce it."

Turnbull acknowledged that attempts to accurately identify IP addresses may be "frustrated" by the usage of VPNs and that issues around identifying dynamically-allocated IPs in attempts to catch pirates were "not trivial".

Furthermore, he conceded that hunting down overseas websites facilitating copyright infringement could pose problems -- an issue that some industry leaders have said could lead to a game of "whack-a-mole" in coming after piracy sites.

This issue was brought into stark relief today following a raid on the Swedish premises of P2P file-sharing site The Pirate Bay. Following the raid, the site was knocked offline, only to come back online hours later under a different domain.

"If you are asking me is it possible for, say, Pirate Bay to then move to another IP address or another URL for that matter, of course that is true," the Minister said. "And that's why I say this is a percentage game. There's no silver bullet here. There's a whole range of solutions and tools both on the side of the ISPs and on the side of the rights owners that will materially mitigate copyright infringement."

Similarly, when it comes to the question of who pays for implementing anti-piracy measures, Turnbull said that was an issue rights holders and ISPs would have to "resolve themselves". However, he conceded rights owners were "the ones with the most to gain financially from a reduction in piracy".

The new measures are set to be introduced in "early 2015" with the Government promising a review 18 months after implementation to "assess their effectiveness".