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Australians love enjoying the best entertainment the world has to offer. Unfortunately, Australians can have difficulty accessing the content we want. You’ll know this if you’ve ever seen the message: “the uploader has not made this video available in your country”. One way to sidestep these restrictions is through a virtual private network (VPN). This article will explain what a VPN is and whether it’s legal.

What is Geo-Blocking?

Restricting access to content (or goods for that matter) online based on a user’s location is a practice known as geo-blocking. This is a relatively common practice and involves issues of copyright control. A copyright owner in the US, e.g. HBO as the holder of the copyright in Game of Thrones, can refuse to give a copyright licence to an Australian provider to air the show. They can also block access from Australian IP addresses to their streaming services HBO Go or HBO Now that streams all of their content to subscribers in the US.

The law in Australia relating to geo-blocking is unclear. In 2005, Sony began legal proceedings against an Australian seller and installer of Playstation modification chips and jailbreaks that allowed Playstation consoles to play geo-protected and unauthorised copies of games. The court decided (somewhat controversially) that this was illegal. It was an interference with Playstation’s technological copyright prevention measures and therefore a breach of the copyright laws.

It is also unclear as to whether geo-blocked content is an “access control technological protection measure” as defined in the Copyright Act. If the block is in relation to streaming particular content, it probably is. However, it probably isn’t in relation to whole websites or the use of particular countries’ credit cards.

What Does a VPN Do?

A VPN server creates a private address, like a post office box, for you on the Internet. It masks your IP address and information about your computer and location. Additionally, it allows you to connect privately with others. People often use them for legitimate security reasons.

They are also used to safely and anonymously access illegal or black market websites. But for the most part, we’re using VPN’s to bypass geo-blocked content on services like:

  • Hulu;
  • HBO Go; and
  • US Netflix.

Is it Technically Illegal? Who is Liable if I Use a VPN?

Paying for a VPN to access streaming services might seem like a preferable option to piracy. Legally, however, it is likely to be copyright infringement. Even if you are paying for the streaming or downloading services available in another country, as well as the VPN, the streaming or downloading services don’t have the right to permit you to do so in Australia. Furthermore, if you provide a false address, you might be in breach of the licence agreement with the content provider. You could also be guilty of acting fraudulently.

Also, most VPN providers limit their liability contractually for individual users’ behaviour. They also have provisions written into their contracts that you agree to not use the service to access geo-blocked content or copyright restricted content. So, regardless of the copyright laws, you are likely to be in breach of those contracts if you use a VPN to gain access to the geo-blocked material.

The Productivity Commission in Australia released a draft report that contained key recommendations to amend the practice of intellectual property arrangements such as that between Foxtel and HBO. The report stated that Australian consumers were unfairly disadvantaged by differential pricing policies enforced by geo-blocking. This means that Australians are offered a lower level of service at a higher price than that in overseas markets. And we pay considerably more for music, software, games and e-books.

The report of the Productivity Commission recommended that the Copyright Act be amended to state expressly that the use of VPNs or similar software to circumvent geo-blocking technology is not an infringement and that Australia should seek to avoid entering into international agreements that would prevent consumers from doing so.

Key Takeaways

When it comes to accessing online content, the laws are conflicting and unclear. This is because these concepts and technology are fairly new. Even though using a VPN might be considered a breach of the Copyright Act, it seems that the law in this area is ripe for reform. If you have questions about this article, get in touch or tell us what you think by tagging us on Twitter: @legalvision_au

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