Senator Brandis says one move he’s considering is asking internet service providers – ISPs – to issue warnings to customers.
Australians are among the worst offenders when it comes to illegal downloads, Senator Brandis is also apparently considering asking ISPs to block sites where content can be illegally downloaded.
Copyright holders like film, television and music studios have long argued that it is ISPs role to prevent internet users from illegally downloading their content.
Senator Brandis is concerned that Australia’s local screen industry is at risk, arguing that even the most successful cinematic releases suffer at the hands of illegal downloaders.
“The Great Gatsby, Australia’s most successful film at the local box office last year,” he said in a speech in Canberra on Friday. “Unfortunately the success achieved by The Great Gatsby has lead to piracy of the film, placing the sustainability of our screen industry at risk.”
Senator Brandis is considering asking internet ISPs to offer their customers a warning if they illegally download, he also suggested ISPs might block sites where content can be downloaded illegally.
“This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy,” he said. “Another option that some stakeholders have raised with me is to provide the Federal Court with explicit powers to provide for third party injunctions against ISPs, which will ultimately require ISPs to ‘take down’ websites hosting infringing content.”
The Attorney-General says he recognises it is a complex reform and there are issues about how the costs of such a scheme are shared between rights holders and ISPs.
John Stanton, head of the Communications Alliance, which represents ISPs, says blocking sites is possible but raises questions.
“It raises all sorts of questions about the freedom of the internet and access to sites, but the Attorney-General talked about the potential for court injunctions requiring ISPs to block access and certainly ISPs will always respond to court orders and comply with them,” Mr Stanton said. “Certainly there’s a risk, firstly that you end up blocking things that oughtn’t be blocked, that you reduce the utility of the internet, and so it’s by no means a simple fix. There can be unintended consequences by moving in that direction.”
ISPs say studies show such schemes where customers are given increasingly severe warnings do not work.
Australian Screen Association Backs Brandis’ Plan
The Australian Screen Association, which represents film and television studios and distributors, says it backs the measures proposed by Senator Brandis.
The Screen Association disputes the Communications Alliance’s claim that graduated warnings schemes do not work. The association also says blocking rogue websites is an effective solution that has worked in many countries.
However Mr Stanton argues a key part of beating the scourge of internet piracy in Australia will come down to releasing content much faster.
“You can track the prevalence of improper downloading against content which isn’t available in Australia at the same time as it’s released overseas and it’s that frustration, the inability to buy affordable and legal content that often tempts internet users to go via alternative methods,” Mr Stanton said.
Filmmaker Dan Ilic has an interest in digital creation and copyright and agrees distribution is a factor.
“A lot of that stealing comes from a frustration of not being able to get it in through any other channels that are legal,” Mr Ilic said.
He says internet piracy not only hits the major studios and production companies, but also smaller Australian outfits.
“The filmmakers for One Hundred Bloody Acres, which was a shock-horror feature film released earlier this year made that film for very little money and because it got so pilfered online, no-one went to the cinema to see it,” Mr Ilic said. “However, the flip side to that is the distributors of that film chose not to show it in many cinemas, so in order for people to see it they would have had to make it to one cinema in a state capital, that’s kind of crazy in today’s world.”
Internet Filter Reborn
This isn’t the first swipe the Abbott governments had at an internet filter, and Senator Brandis’ view on copyright law is well documented. He’s previously described the Australian Copyright Act as “overly long, unnecessarily complex and often comical.”
In his speech, Senator Brandis stood squarely on the side of content creators on the copyright debate.
While in opposition, the Communications Minister Malcolm Turnbull backflipped on the introduction of any form of internet filter. In September last year, just weeks prior to being elected to government, Mr Turnbull said the opposition did not support any form of internet filtering.
However, content owners have been niggling away at government for a proper crack-down on online-piracy. Since the iiNet vs the Australian Federation Against Copyright Theft – AFACT – case in Australia’s High Court ruled in favour of not holding ISPs responsible. The ruling concluded that iiNet had no direct power to prevent it’s customers from using BitTorrent to infringe on copyright.
AFACT has been calling for a graduated response to internet piracy since 2012, including a joint submission to the Law Reform Commission’s review into current copyright standings.
It’s noteworthy though that a recent study on graduated response schemes implemented in the UK, France, and New Zealand has shown that graduated response schemes don’t deter users from illegally downloading content, infringing on copyright.
The studies author, Rebecca Giblin from Monash University says “It’s been three years since the first countries began implementing ‘graduated responses’, requiring ISPs to take a range of measures to police their users’ copyright infringements. Copyright-holders describe them as ‘successful’ and ‘effective’ and are agitating for their further international roll-out. However, there is little to no evidence that that graduated responses are either ‘successful’ or ‘effective’. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.”
Senator Brandis however says that such proposals are “complex” and who and how they would be paid for is currently an unknown.
“It should also be noted that Australia has international obligations on this point, and that the government will not be seeking to burden ISPs beyond what is reasonably necessary to comply [with] appropriate domestic and international obligations,” Senator Brandis said. “As well, I would like to emphasise that this would not put Australian ISPs at a disadvantage by comparison with their counterparts internationally, as many overseas jurisdictions have the concept of authorisation liability, secondary liability, or similar, which are intended to capture ISPs.”
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