In December 2022, we published an article about the Federal Government's announcement that it will undertake a review into the current copyright enforcement regime to ensure it effectively protects the works of creators from unauthorised use.

The government has now commenced its consultation period, releasing an issues paper that seeks feedback on the current mechanisms used to protect copyright, both in their efficacy and their practical use.

The issues paper notes that copyright infringement may harm Australia’s creative ecosystem and broader economy by reducing or diverting income that creators of, and investors in, original material rely on for their financial sustainability. However, it is recognised that at the same time, it is important that consumers, service providers and other businesses are clear about when they can use copyright materials and in what circumstances.

The purpose of the review is said to include understanding current and emerging enforcement priorities and challenges, including whether Australia's current enforcement regime remains relevant, effective and proportionate. The issues paper points in particular to the fact that the way we create and consume copyright material changes over time, and a significant number of Australians are embracing online and digital content. It is said that the use and effect of these technologies needs to be better understood and considered further, including as part of this review. In addition, it is acknowledged that broader social and economic factors may have helped to accelerate the move to people consuming more copyright content online, with a new ‘normal’ still emerging.

The government is hoping to seek feedback on whether there is a need to supplement or strengthen existing enforcement mechanisms, and if so, how this could be done without imposing unreasonable administrative or economic burdens. The specific questions posed by the government as part of this review are set out below.

Current copyright infringement challenges

The issues paper notes a number of barriers to copyright enforcement, as well as the emerging challenges arising as media consumption shifts towards online content. While the data available to the government shows a slight downwards trend in consumption of unlicensed material through online piracy, it is acknowledged that there are likely emerging methods of consuming unlicensed material, and the government is seeking to understand and combat these new methods. It is also noted that there are geographical and jurisdictional issues with enforcing copyright and the breadth of means of accessing copyright materials may make it difficult for consumers to differentiate between legal and illegal means of access.

The Attorney-General's Department is therefore seeking to understand the nature and scale of current copyright infringement challenges in Australia and asks the following questions:

• What challenges have you been facing in relation to copyright infringement in recent years? Are you seeing any changes or trends (including any forms or methods of infringement that are emerging or particularly concerning, or conversely, are becoming less prevalent or concerning)?
• Can you provide any data on the scale of current copyright infringement, or the estimated economic impact of such copyright infringement on you, your organisation or your industry more broadly?
• Are there any particular drivers of copyright infringement that you see as noteworthy or significant? Have these drivers changed in recent years?

The current copyright enforcement framework and its effectiveness

Current enforcement mechanisms can be categorised as either statutory or driven by interactions between industry participants, including copyright owners and service providers (‘industry-driven mechanisms’).

The department is interested in understanding how, and to what extent, various enforcement mechanisms are currently used against copyright infringement, what drives stakeholders’ decisions to use or avoid certain mechanisms, and whether there are any ways in which the system could be improved.

The department is also interested in hearing stakeholder views and experiences of accessing and using the legal system and interacting with law enforcement bodies to enforce their copyright.

Industry-driven mechanisms of copyright enforcement

The paper elaborates on current means of copyright owners can engage with users and service providers outside of the legal system to address copyright infringement. These include notice and takedown measures, such as 'cease and desist' letters, which can notify unaware infringers of their behaviour, whilst preserving the ability of copyright holders to bring legal action.

Copyright owners can also work with industry participants and use their tools to manage and enforce their rights. For example, many platforms either proactively take down material, links or sites that they consider to be infringing, or offer tools which allow copyright owners to take action themselves.

The paper acknowledges the increasing use of these powerful tools for copyright owners and their important role in dealing with disputes online. The paper also acknowledges more traditional means of enforcing copyright, such as entering into commercial arrangements, allowing for infringers of copyright to enter a licence or other commercial arrangement to continue using the material in a legal manner.

On these issues, the Attorney-General's Department is asking the following questions:

• Are the currently available industry-led mechanisms appropriate, and/or being appropriately used, to address or prevent actual or potential copyright infringement? Which mechanism(s) are most frequently and/or effectively used, and why?
• What factors influence your decisions on what action(s), if any, to take through industry-led mechanisms in response to actual or potential copyright infringement?
• Are the costs (including financial and time costs), benefits and risks of industry-driven mechanisms appropriately shared between different parties?
• Are there ways in which industry participants could work together more effectively or efficiently to address or prevent copyright infringement (for example, barriers to utilisation that could be removed; new or emerging mechanisms that could be adopted)?

Statute-based mechanisms

The issues paper sets out the means by which the Copyright Act seeks to address copyright infringement, and considers the Act's website blocking scheme, the authorisation liability provisions and the safe harbour scheme.

The website blocking scheme allows for copyright owners to apply to the Federal Court of Australia for an injunction requiring carriage service providers to block access to infringing websites located overseas. Similar requests can be made to require search engine providers to take reasonable steps to prevent search results which link to infringing websites. The issues paper acknowledges the expansions to this scheme since its inception in 2015, including to search engines, and celebrates its success in achieving the blocking of over 1600 websites. Evidence also suggests that that the scheme has had a positive effect in reducing the extent to which consumers are accessing content through websites that are infringing copyright. Despite this, there are now emerging means of navigating around or through these blocks, including the use of Virtual Private Networks (VPNs) and custom Domain Name Systems (DNS).

In relation to the website blocking scheme, the Attorney-General's Department is asking:

• How effective and efficient is the current website blocking scheme as a way of combating copyright infringement and steering online consumers towards legitimate sources of content? For example, is the application process working well for parties, and are injunctions operating well, once granted?
• Could the way the website blocking scheme operates be improved in any way (for example to address the use of new and emerging technologies to navigate around or through website blocks), including through changes to how the current scheme is practically implemented, or potential amendments to legislation?

a) What impact would any such changes have on you or your organisation?

b) Are there any potential broader or unintended consequences (for example, on other aspects of internet traffic management) that should be taken into account when considering changes that may be suggested through this consultation process?

Authorisation liability is where an entity is found liable for the infringing act of another person that they have authorised. While this concept is not new in copyright law, in the digital age it has been applied to platform providers, such as social media platforms, to hold them accountable for copyright material posted on their platforms, often where these platforms regularly allow copyright infringing behaviour. The issues paper also describes the safe harbour system introduced in 2005, and then extended to online service providers in 2018, which allows for qualifying third parties to be protected from liability where they comply with certain requirements, including adopting policies for termination of repeat infringers' accounts and complying with statutory and industry codes.

In relation to the authorisation liability provisions and the safe harbour scheme, the Attorney-General's Department is asking:

• How effectively and efficiently are the authorisation liability provisions and/or safe harbour scheme (and associated notice and take-down process) currently operating as mechanisms for addressing copyright infringement? For example:

a) How clear are the circumstances in which a party may be considered to have authorised another person’s copyright infringement, given the courts’ interpretation of the authorisation liability to date?

b) How effective and efficient is the safe harbour scheme (and associated statutory notice and take-down process) in striking the right balance between combatting copyright infringement and protecting the legitimate interests of service providers?

• Are there ways in which these provisions could be amended to improve their effectiveness or efficiency?

a) How would such changes affect you or your sector?

b) Are there any potential broader or unintended consequences that should be taken into account when considering changes that may be suggested through this consultation process?

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

Finally, the issues paper summarises the use of the legal system to enforce the rights of copyright owners, including commencing proceedings in the Federal Court of Australia and Federal Circuit and Family Court of Australia. It appears that, in between 2019 and 2021, around 150 copyright matters were brought before the courts, with approximately 60% heard in the Federal Court of Australia and 40% in the Federal Circuit and Family Court of Australia (or its predecessor, the Federal Circuit Court).

The issues paper acknowledges the difficulties with accessing the courts system, including the time and financial burdens it places upon those seeking a remedy, in spite of the Federal Court's 'expedited claims process', and summarises the range or remedies and penalties provided under the Copyright Act, including a range of civil and criminal penalties.

The Attorney-General's Department is seeking to understand:

• What factors influence your decisions on what action(s), if any, to take through the legal system and/or law enforcement in relation to suspected or alleged copyright infringement?

a) For example, have you found mechanisms such as mediation, alternative dispute resolution and other non-court remedies to be preferable as ways to resolve disputes?

• Are the various avenues available through the legal system and law enforcement to address copyright infringement suitable and effective? For example:

a) Have you sought to engage with the courts or law enforcement in relation to suspected or alleged copyright infringements? If so, please provide (if possible) any data or examples in relation to your experiences.

b) Are the current civil and criminal remedies under the Copyright Act appropriate?

c) What barriers (if any) do you face in engaging with the legal system? Could any models introduced in other international jurisdictions to streamline consideration of copyright matters be potentially relevant in an Australian context?

d) Were you previously aware of the ABF’s Notice of Objection border enforcement application process?

e) Are there any ways in which the current system could be improved? How would such changes affect you or your sector?

On the whole, it appears that the Attorney-General's Department is interested in understanding the practical application of the copyright enforcement regime in Australia as it currently stands, and where the regime is failing to keep up to speed with developments in the digital landscape.

Submissions closed on 7 March 2023.

Please contact us if you would like to discuss the changes which are considered in the issues paper or copyright reform more broadly.