Copyright, Pirates and VPNs

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Australia has one of the highest online piracy rates in the world.[1]  One only needs to consider the popular television series Game of Thrones, the Season 5 premiere of which was downloaded illegally via torrent websites over 150,000 times by Australians alone.[2]  It’s easy to brush off online piracy as simply being the status quo: widespread, easy to facilitate, and not necessarily a bad thing.  However, online piracy is certainly an illegal activity.[3]  It infringes the rights of copyright holders (many of whom are artists) and it is far from a victimless crime.  According to a 2011 report from the Australian Federation Against Copyright Theft, online piracy costs Australia $1.37 billion a year, with much of this cost being at the expense of artists who create content.[4]

Why do Australians download illegally?

It is clear that online piracy is a prevalent issue in modern Australia,[5] but why are so many Australians illegally downloading?  According to the Communications Alliance Online Copyright Infringement Research Report, the reasons most Australians give for pirating content are related to the high-cost and lack of availability of content in Australia. [6]  This in turn drives many consumers who are seeking content towards easy-to-use torrenting sites and other online piracy methods.

Is piracy the way of the future?

Just because a law can be effortlessly circumvented, does that make it right to do so?  Ultimately, downloading from these sites is illegal under copyright laws and it is the artists creating the content who suffer the most.  Illegal downloaders are propagating a culture where it has become a social norm to steal from artists.  In 2014, copyright industries contributed $111.4 billion to the Australian economy, making it the 4th biggest industry in Australia.[7]  If artists and copyright holders lose control over their content and are denied the ability to monetize their work, the incentive to create new material and tell Australian stories becomes negligible, which not only affects Australia’s economy, but also our cultural identity.

Copyright Amendment (Online Infringement) Act 2015

In response to ever increasing online piracy, in 2015 the Federal Government introduced a Bill to combat online copyright infringement. The Copyright Amendment (Online Infringement) Act 2015 (Cth) (the Act) came into effect on 26 June 2015 and inserts a new section 115A into the Copyright Act 1968 (Cth). The Act aims to reduce online piracy and provide copyright holders with the tools to combat blatant copyright infringement.[8]  In operation, the Act gives the Federal Court the power to block websites that have the ‘primary purpose’ of infringing or facilitating the infringement of copyright on application by copyright holders.[9]  Essentially, this means that copyright holders now have the means to block access to piracy websites operated outside of Australia.[10]

This article explores how the operation of the Act will affect internet use in Australia, Australia’s piracy culture, and whether or not the Act will be effective in reducing online piracy.

What websites will be affected?

There are some fears that websites such as YouTube, Netflix, Google and other overseas websites that provide legitimate material (but in some cases are not licensed to distribute that material to Australian users) will be blocked.  As these websites do not have the ‘primary purpose’ of infringing or facilitating copyright infringement, it is very unlikely that they will be blocked as a result of an application under the Act.

Examples of websites that could be blocked include ‘torrenting’ websites such as The Pirate Bay and KickAss Torrents, which are often frequented by Australian internet users to download content including music, films, television shows (e.g. Game of Thrones) and even literature.  The sole purpose of websites such as these is to infringe and/or to facilitate the infringement of copyrighted material.  Therefore, it’s likely that these websites could be blocked if an Australian copyright holder applies for an injunction.

Under similar laws in the UK, websites such as The Pirate Bay and KickAss Torrents have been blocked since 2012.  Research suggests that although the difficulty of accessing pirated content in the UK has increased, many internet users have turned to smaller pirate websites that have not been blocked.[11] However, for many Australian internet users there seems to be an obvious way to access any websites that are blocked under the Act: Virtual Private Networks (VPNs).

Virtual Private Networks

So what are VPNs?  VPNs allow internet users to securely access a private network and share data remotely through public networks.[12]  This allows users to encrypt and protect their connections.  Furthermore, VPNs allow individuals to fabricate their physical location while surfing the net.  The VPN provider replaces the user’s actual IP address, hiding the user’s geographic location and allowing them to bypass regional content filters.  For example, an internet user living in Sydney can use a VPN to appear as though they are living in Los Angeles.  For websites that have region-locked content (i.e. Netflix, YouTube), VPNs allow users to bypass these locks and access otherwise inaccessible content.  Using VPNs in this way would be likely to enable Australian internet users to access websites and content that has been blocked as a result of a complaint under the Act.  This could be compared to ‘walking out of a supermarket with a trolley full of goods because the checkout register was faulty’.[13]  It would be effortless and convenient, but it’s still stealing from the content creators.

Many Australians are already using VPNs, with usage increasing by 500% following the decision in the Dallas Buyers Club case (most likely due to concerns of online privacy).  It is expected that many more will begin using VPNs in order to circumvent any website blocks resulting from the Act.[14]  Consequently copyright holders may seek an injunction against VPN providers.  However, VPNs have many valid private and commercial uses.  VPNs are useful for corporations, journalists, lawyers, activists, and security-conscious internet users who want to ensure privacy and to prevent any network security breaches.  Although Minister for Communications, Malcolm Turnbull, has stated that the Act is not intended to target VPNs, there are concerns that this is not enough to prevent VPNs from being blocked.[15]  However, it’s very unlikely that VPN providers would be blocked as a result of an injunction application under the Act, as the primary purpose of VPNs is to provide secure, encrypted connections, and not to infringe or facilitate the infringement of copyright.  The ability for VPNs to facilitate the infringement of copyright is incidental.

What else could the Act block?

There are risks that certain groups and/or individuals in Australia will exploit the new laws as a way to censor material.  For example, a political party may seek to have an activist website blocked on the basis of copyright infringement.  This would be difficult; however, to make a complaint under the laws, you must be a copyright holder whose copyrighted material is being infringed by the website in question.[16]

Another concerning aspect of the Act is that there is no limit to how many websites can be listed in an application to the Federal Court, meaning that copyright owners can apply to have multiple websites disabled at once.  Recently, the ASIC blunder demonstrated how easy it is to accidently block thousands of websites that are indeed legitimate.  In an attempt to block a fraudulent website, ASIC accidentally blocked access to 250,000 websites, simply because the staff responsible misunderstood a basic feature of internet technology.

There is no mention in the Act or Explanatory Memorandum of a public register where Australians can see which sites have been blocked or whether internet users will see a message when accessing a site that informs them why it was blocked.  However there are some checks in place.  Copyright holders can’t just nominate websites and expect them to be blocked.  Under the laws, copyright holders will need to convince the court that a website should be blocked.  Also, a judge may limit the duration a site is blocked for and, upon application, revoke or vary a block.[17]

Will the Act reduce online piracy?

Although it is early days yet, the Act should be effective in reducing online piracy numbers, especially if the worst offender websites (e.g. The Pirate Bay) are blocked.  It should be noted, however, that any statistic of online piracy rates would not reflect the true number of those who are illegally downloading, as downloaders using VPNs and other encryption tools would not be counted.

Importantly, will this Act be at all effective for individual content creators and copyright holders?  Legal action is a costly and lengthy process, resulting in the courts often being viewed as inaccessible by many independent artists.  As the internet service provider (e.g. iiNet) will not be liable for any costs in relation to an application under the Act, it seems the applicant will have to bear the brunt of the legal costs.[18]  Although this may be economically viable for large companies such as movie studios or record labels, most independent artists would be unable to afford the legal costs associated with such an application.

Final word

According to the recent survey released by the Department of Communications on the levels of online copyright infringement in Australia and why people choose to download content illegally, the top three ways to encourage Australians to stop downloading illegally would be:

  • cheaper methods of accessing services legally;
  • making the desired content available legally; and
  • making the desired content available legally online as soon as it is released elsewhere.[19]

Although the Act is a step in the right direction in combatting online piracy, no single measure alone is going to be completely effective.  Rather, Australia must strive for a combination of measures which include legislation such as the Act in order to have a cumulative impact on online piracy. This means considering the needs of the content creators and copyright holders in conjunction with the needs of the consumer.  On first look, these stakeholders seem to exist in a dichotomy, but are these two interests necessarily that disparate?  If legislation continues down this path, it isn’t hard to imagine an endless cycle where consumers find new ways to circumvent the laws in order to access the content they desire.  In order to effectively combat online piracy, it is essential that all consumers are able to access desired content on a more equitable playing field.

[2] Danielle McGrane, ‘Game of Thrones season 5 downloads: Aussies don’t seem scared of Dallas Buyers Club case’ (14 April 2015) Sydney Morning Herald.

[3] Copyright Act 1968 (Cth), s36.

[4] Marina Freri, ‘Piracy costs Australia $1.37 billion a year, claims AFACT’ (17 February 2011) Delimiter.

[5] According to research undertaken by the Department of Communications, 43% of Australian content consumers had consumed at least some illegal files as opposed to 21% in the UK: Department of Communications, Online Copyright Infringement Research (24 June 2015), page 32.

[6] Communications Alliance Ltd, Online Copyright Infringement Research Report (November 2014), page 7.

[7] Australian Copyright Council, The Economic Contribution of Australia’s Copyright Industries 2002 – 2014 (27 April 2015).

[8] Explanatory Memorandum, Copyright Amendment (Online Infringement) Bill 2015 (Cth).

[9] Ibid, note 3, s115A(1).

[10] Ibid, note 3, s115A(1) and note 8, at point 4.

[11] Jason Thomas, ‘How will Australia’s anti-piracy law affect you?’ (24 June 2015) SBS.

[14] Claire Reilly, ‘VPN use skyrockets in Australia amid privacy concerns’ (14 April 2015) CNet.

[15] Ibid, note 11.

[16] Ibid, note 3, s115A(1).

[17] Ibid, note 3, s115A(7).

[18] Timothy Webb and Carmen Culina, ‘New Bill to introduce website blocking measures to fight online copyright infringement’ (16 April 2015) Clayton Utz.

[19]  Department of Communications, Online Copyright Infringement Research (24 June 2015), page 61.

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