Rights holders are pushing to broaden the scope of the federal government's proposed website-blocking regime to include more websites and to also allow them to ask search engines such as Google and Yahoo, in addition to internet service providers (ISPs), to block them.
But in a win for consumers, the Australian Competition and Consumer Commission (ACCC) has given its blessing to consumers who use virtual private networks (VPNs) to "geo-dodge" into overseas markets in an attempt to access better, cheaper content – as hundreds of thousands of Australians are estimated to be doing to access the US Netflix catalogue.
In separate submissions to the parliamentary inquiry examining the Copyright Amendment (Online Infringement) Bill 2015, News Corp Australia and Foxtel, the television network it jointly owns with Telstra, called for terms in the legislation to be expanded so that rights holders can force not just "carriage service providers" (CSPs) but "service providers and intermediaries", such as search engine providers, to block certain websites.
If passed in its current form, the bill would allow copyright owners to apply for an injunction through the Federal Court that would force CSPs to block websites found to be infringing, or facilitating the infringement of, their copyrighted content.
The Australian Communications and Media Authority defines carriage service providers as entities that use a telecommunications network to supply telephone or internet access services to consumers.
Foxtel said the broadened scope would ensure that the injunction power was "technologically neutral and capable of broad application".
Given the rapid pace of technological innovation, the neutral terms proposed by Foxtel and others would give scope for potential new online services beyond to be included in the bill in future.
However, Google outlined to the parliamentary inquiry various measures it already undertook to help copyright owners protect their intellectual property, including its compliance with 99 per cent of requests to remove infringing web pages from its search results.
A coalition of five content distribution bodies including the Australian Home Entertainment Distributors Association, Motion Picture Distributors Association and the National Association of Cinema Operators also supported the expanded scope.
In addition, submissions from various rights holders called for the thresholds defining which websites could be blocked to be lowered, meaning that potentially more websites could be blocked under the regime.
The bill in its current form deals with blocking "an online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright".
Foxtel and several other rights holders called for this threshold to be lowered from "the primary purpose" to "a substantial purpose or effect".
But in a blow to rights holders seeking to protect their ability to profit from regional content distribution arrangements, the head of Australia's competition watchdog has given a roundabout nod to the use of VPNs to access content overseas, saying this should clearly be excluded from definitions of "infringing content".
In his submission to the parliamentary inquiry, ACCC chairman Rod Sims noted rights holders had in the past threatened consumers with court action "to prevent the legitimate sale of parallel imported goods".
"The ACCC would be concerned if copyright owners were able to inappropriately threaten use of the powers set out in this bill to intimidate consumers and businesses and prevent them accessing legitimate goods from other jurisdictions," Mr Sims wrote.
"One way to address this is to ensure that a definition of infringing content does not apply to content authorised by owners in other jurisdictions."
Earlier this month, the managing director of television production company Cordell Jigsaw Zapruder, Nick Murray, told media and marketing website Mumbrella thatterritorial sales were "how we get our money" and that geo-dodging only benefited companies like Netflix and those that sold VPN software.
