Australians love enjoying the best entertainment the world has to offer. Unfortunately, the world often wants to prevent us accessing the content we want on the devices we want. When Netflix finally arrived in Australia, many were disheartened to find that their favourite US television shows weren’t available on the streaming service, even though they were available on the platform in other countries. Even on YouTube, it’s not uncommon to encounter the frustrating message, “the uploader has not made this video available in your country.”

Without resorting to online piracy, the best alternative to sidestepping the location restrictions to get our hands on the latest episodes of Game of Thrones or to rewatch Friends on Netflix is to use a Virtual Private Network (VPN) to access streaming services available in other countries. Last year, CNET reported that in the Australian market, VPN subscriptions increased by 500 percent. And this year, research conducted by Essential Media has shown that more than 16 per cent of Australians were using VPNs, with the majority of these users being between 18 – 34 years of age.

So what is a VPN and is it legal to use one for these purposes in Australia?

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 when used with regard to content has to do with 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. This was (somewhat controversially) held to be illegal as an interference with Playstation’s technological copyright prevention measures, and therefore itself 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 section 10 of the Copyright Act, 1968 (Cth). It probably only is if the block is in relation to streaming particular content – not blocking 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, masking your IP address and information about your computer and location and allows you to connect privately with others. They are often used 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 and gain access to streaming services like Hulu, HBO Go, and the shows available on the US Netflix that isn’t on ours!

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

Paying for a VPN to access streaming services in countries such as the US might seem like a preferable option to piracy and exposing yourself to the security risks. Legally, however, it is likely to be copyright infringement still. Even if you are paying for the streaming or downloading services that are 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, or be guilty of acting fraudulently.

Also, most VPN providers limit their liability contractually for individual users’ behaviour and 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 geoblocked material.

It’s debatable whose behaviour should be regulated here, whether it’s the impatient and opportunistic individuals, or the greedy content owners attempting to gouge higher fees from a lucrative, if small, Australian market. Chief of internet advocacy group Internet Australia, Laurie Patton, has argued that the best way to reduce piracy and stop unlawful downloading of content was simply to make it more readily accessible at prices that were reasonable and comparable with those overseas. This would involve content providers stopping geo-blocking.

Despite our conclusions above, we note that on Malcolm’s Turnbull’s website Q&A, it states that: 

  • Using a VPN to access overseas content is not illegal under the Copyright Act; and 
  • Circumventing international commercial arrangements which protect copyright in different countries or regions, and which can result in ‘geoblocking’, is not illegal under the Copyright Act.

The Productivity Commission in Australia released a draft report in April this year 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. What this means is that Australians are offered a lower level of service at a higher price than that in overseas markets, paying 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, 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

Catherine Logan

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