Australia’s Revolving Door for Prime Ministers, and Copyright Modernisation: How are they Connected?

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It used to be that no one could remember the name of the Italian prime minister (PM) because this position changed so often as a result of the fragmented nature of party politics in Rome and the constantly shifting coalitions needed to form a government. No sooner did you hear the name of the PM and he was gone (yes, it was always a he; there has never been a female prime minister of Italy). Now it seems that Australia has usurped the dubious honour of having the fastest revolving door for prime ministers.

Changes at the head of government level can have an impact on governance and legislation—and copyright is no exception. I will deal with this in a few paragraphs but first, for those not initiated into the somewhat bizarre Australian political landscape, read on. (For you Australian readers who have actually lived the turbulence of the past few years you can skip to paragraph six).

In the last ten years or so Australia has had no less than seven prime ministers. (John Howard-Liberal; Kevin Rudd-Labor; Julia Gillard-Labor; Kevin Rudd again; Tony Abbott-Liberal; Malcolm Turnbull-Liberal and now Scott Morrison-Liberal) The only two to change as a result of an actual election were Kevin Rudd in his first mandate in 2007 and Tony Abbott in 2013. The rest were shown the door through internal party coups where the “party room” in Australian parlance (i.e. the caucus) of the majority party voted to change its Leader, and thus the Prime Minister. In the Westminster tradition the prime minister has to enjoy the confidence of Parliament, meaning that he or she must be able to secure a majority of votes when a division or vote is called. To do that, the PM must retain the support of the elected members (caucus) of his or her own party. In Australia, if your caucus decides it doesn’t support you, you are toast. (In Canada and the UK, for example, while the same principle applies, both party members as well as the caucus have a say in the decision and a party convention is normally required to change leaders. This helps avoid the recent Australian experience of a prime ministerial revolving door.)

Most recently the sitting Liberal Prime Minister Malcolm Turnbull was voted out by his caucus. Turnbull promptly resigned from Parliament creating the need for a by-election in his district. What you have to know, however, was that when Turnbull resigned, the Liberals enjoyed only a one seat majority in the Australian House of Representatives. To maintain their majority they needed to win Turnbull’s seat. Since that seat (Wentworth, in the eastern suburbs of Sydney) had voted Liberal or its equivalent ever since Australia was established in 1901, it was considered one of the safest Liberal seats in the country. Turnbull had won that seat in the last election with a significant majority of the popular vote, so no upset was expected. But never take the voter for granted.

When I arrived in Sydney earlier this month to speak at a meeting of the Copyright Society of Australia, the first news to hit me when I opened the paper was the result of the Wentworth by-election. An independent challenger, Dr. Kerryn Phelps, was announced as the winner! Mr. Turnbull, understandably after the way he was treated, declined to campaign on behalf of his party and a safe Liberal seat became a seat in Opposition—at least theoretically. Clearly the voters of Wentworth didn’t like the treatment that was meted out by the Liberal Party to their favourite son. What will happen when the result of the by-election is finally confirmed (tallying final results takes a while because of the Australian system of preferential voting) and Dr. Phelps takes her seat remains to be seen. If push comes to shove, will she be the vote that brings down the government, or will she vote with the government and keep it in office a while longer? It is worth noting that the current government’s mandate will expire by next May at the latest so in any event, there will be a general election within about six months.

By now you must be asking yourself, hmm….interesting (I hope), but what does this have to do with copyright? Well, possibly everything when it comes to the issue of copyright modernisation.

Australia has been undergoing an almost continuous process of copyright review over the past few years, beginning with the recommendations of the Australian Law Review Commission in 2014, continuing with the report of the Productivity Commission in 2016, (reviewing not just copyright but a broad range of intellectual property issues) to most recently the current government copyright review, which was launched in March of this year.

A series of stakeholder consultations has been held, submissions sought and received, and at the current time inputs are being evaluated. Among the issues being examined are those of fair dealing exceptions (whether to add new exceptions or to widen existing ones), the regime for safe harbours (legal protection for ISPs and some other intermediaries for content carried on their networks provided they act as passive distributors), and other areas of copyright including orphan works, and access for people with disabilities etc. Almost simultaneously with the broad copyright review, the government announced a review of the Copyright Online Infringement Act, the legislation that established the legal basis for Australia’s current regime of blocking offshore piracy websites.

The government is not saving all its proposals for a “big bang” announcement; as proposals are ready they are introduced and enacted. This is what happened with safe harbours where legislation enacted in June of this year granted safe harbour provisions to the disability, education, library, archive and cultural sectors. Notably, the revisions to the safe harbours did not include extending the immunities to search engines, as Google among others had proposed. The government has not definitively rejected doing this but by bringing forward more limited and less controversial amendments to the safe harbours regime now it has sent a strong signal that this is likely as far as it is prepared to go, at least at the present time. And the “present time” is the period leading up to the next election, at most just six months away assuming the Liberals keep their hold on the House in the interim.

With a slim, in fact non-existent minority, and with just a few months to go until a general election has to be called (one could be called sooner if the government loses a confidence vote in the House), it is most unlikely that anything very controversial will be coming forward in this round of copyright review. Proposals that come forward will need to attract bipartisan support in order not to provoke the sort of confrontation that could bring down a government.

Among these non-controversial measures are new proposals, introduced just two weeks ago, to amend the Online Infringements legislation, the 2015 amendment to the Copyright Act that has enabled Australia to implement one of the most effective anti-piracy site-blocking regimes globally. Since the first court-approved blocks were instituted in 2016, a total of eight cases have been brought to the courts, resulting in orders blocking 85 online locations and 483 domains. This has resulted in a 53% reduction in visits to the blocked sites and a 25% reduction in visits by Australian users to pirate sites overall. The system has become “routinized” with ISPs no longer contesting the orders. Costs have been established at $50 (AUD) per site blocked.

The process is dynamic and new elements have been added as experience has been gained, such as court ordered blocks on the servers used to enable the functioning of Android apps that in turn allow Illicit Streaming Devices (pre-loaded boxes providing access to a wide range of pirated content through the app) to stream infringing content, including programs from Asian broadcaster TVB. While the content community and the ISPs have reached an accommodation on site blocking, and the system is working well, it still has loopholes. Among these is the role of search engines.

Search engines (think Google, Bing, Yahoo) are the pathway to pirated content for users who want to free ride. Type the letters “pir”… into Google search and see what comes up. As often as not the autocomplete will offer to take you to the Pirate Bay website and other sources of infringing material. Studies have shown that over 40% of new consumers of pirated content were not looking for infringing material when they first found it and in many instances were first directed to pirate sources by autocomplete suggestions. The new legislation, the Online Infringements Act, 2018 will allow rights-holders to apply for injunctions against online search engine providers and will broaden the threshold used to target pirate sites from “primary purpose” to “primary purpose or effect”. It will also make it a rebuttable presumption that the site is outside Australia, to reduce the evidentiary burden on rights holders.

It received quick passage in the House, attracting support from both Liberal and Labor members and now will go to the Senate for passage. The election clock is ticking. Fortunately the site blocking regime instituted in Australia has proven effective in protecting content creators and distributors and therefore enjoys broad bipartisan support. This makes it likely it will get quick passage in the Upper House. How the search engines will respond after passage remains to be seen. (Google dominates over 95% of search in Australia so this is who we are talking about).

In the past Google has taken the position that it is not required to respond to national law when it comes to modifying search results. In a protracted case in Canada (Google v Equustek), Google tried to argue that it was not required to obey a Canadian court injunction to block certain search results related to infringement of one company’s intellectual property by another. It took this case all the way to the Supreme Court of Canada—and lost, and then tried unsuccessfully to get the Supreme Court’s ruling invalidated by a US court. Will Google willingly comply if served with an injunction in Australia? One hopes so.

In the meantime, whoever becomes Prime Minister of Australia after the next election will most likely have inherited some reasonable, relatively non-controversial and much-needed updates to the country’s copyright laws, leaving that person free to focus on hanging on to power and keeping his or her caucus happy. That’s how you survive politically in Australia!

© Hugh Stephens, 2018. All Rights Reserved.

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