Date: 
Friday 24 April 2015

Human Rights Commissioner Tim Wilson says government attempts to block copyright infringement are consistent with advancing human rights but only if ‘fair use’ exceptions are introduced.

The Copyright Amendment (Online Infringement) Bill 2015 (Cth), currently before a Senate Inquiry, seeks to reduce online copyright infringement by providing for court injunctions requiring Carriage Service Providers (CSPs) to block foreign online locations that facilitate copyright infringement.

In a submission to the Senate Inquiry, Commissioner Wilson recommended two key changes to ensure the Bill did not become a “de facto internet filter”.

“People have the right to own property, whether intellectual or physical, and these rights should be preserved and protected,” Commissioner Wilson said.

“However, the justifications to stop copyright infringement are not unlimited. Respecting intellectual property rights, including copyright can unreasonably restrict freedom of expression without proper ‘fair use’ exceptions in copyright law. Similarly, without a sufficiently high threshold to justify a court injunction such a Bill could quickly become a de facto internet filter.”

Commissioner Wilson said the Bill attempts to be prescriptive by establishing a ‘test’ for courts to assess whether an injunction can be granted, but the factors that the Court must take into account when applying the test were “not sufficient”.

The Australian Human Rights Commission recommended:

  • An additional ‘factor’ that assesses the extent of the infringement as a share of the total copyrighted work (i.e., only ten seconds of a two-hour long movie).
  • The introduction of a ‘fair use’ exception, or new ‘fair dealing’ exception, in the Copyright Act 1986 (Cth).

Commissioner Wilson said Australia’s copyright law was in need of “serious reform”.

“While the Copyright Act contains a number of ‘fair dealing’ provisions for particular purposes, a key problem with Australia’s copyright regime is the absence of a reasonable ‘fair use’ provision that accommodates both freedom of expression and the protection of property rights,” Commissioner Wilson said.

“Under the regime proposed in the Bill there remains an outside risk a website that carries content that would be covered by another country’s ‘fair use’ exception may be blocked because of the absence of a sufficiently broad ‘fair use’ exception in Australian law.”

To read the Commission’s submission visit https://www.humanrights.gov.au/submissions/senate-inquiry-copyright-amendment-online-infringement-bill-2015-cth