Federal government proposals to amend copyright laws have drawn support from rights holders and copyright organisations but some aspects of the enforcement regime outlined in a discussion paper released yesterday have raised concerns among ISPs and consumer advocates.
The discussion paper (PDF) explicitly seeks to undo the victory of iiNet in a case brought against the ISP by movie studios.
The High Court's decision in that case, which was brought by a group of movie studios, "determined that the ISP, iiNet, was not liable for authorising the copyright infringements of its subscribers using systems that iiNet did not operate or control, and that there were no reasonable steps that could have been taken by iiNet to reduce its subscribers' infringements," the discussion paper states.
"The effect of the decision is to severely limit the circumstances in which an ISP can be found liable for authorising an act by a subscriber that infringes copyright."
This morning in an ABC radio interview communications minister Malcolm Turnbull defended proposals contained in the discussion paper, which include putting more of an onus on ISPs to enforce copyright including potentially blocking sites that house infringing content.
Turnbull described Internet piracy as a "massive problem for the content creators of Australia and right around the world".
"It is really undermining a very important industry globally and it is simply theft," the minister said.
Turnbull cited the three strikes scheme in New Zealand as an example of what could be implemented in Australia.
"In new Zealand where an ISP is advised by the rights owners that an IP address... has downloaded a movie an illegal movie, the ISP is required to send a notice to the account holder," Turnbull said.
"And after they've sent three notices in respect of different violations then it's up to the rights holder then, if they want to, to take the customer to court and seek to recover some damages."
Turnbull also said that rights owners needed to consider whether they were doing enough to discourage piracy: "If you want to discourage piracy, the best thing you can do — and the music industry is a very good example of this, the way they've responded — the best thing you can do is to make your content available globally universally and affordably ."
Pay TV operator Foxtel and the Copyright Agency, a royalties collection organisation, have both indicated support for changes to copyright law.
A Foxtel statement said that "government should put in place a regulatory system that encourages legitimate use and discourages illegitimate use of content, while content owners need to make content available quickly and conveniently".
"ISPs should also assist by mitigating, to the extent they can, use of their networks for unauthorised purposes," the statement added.
"Foxtel acknowledges the comments in the discussion paper that everyone has a part to play in reducing the incidents of online piracy and we look forward to constructively engaging in the discussion of how to give effect to the principles that underpin the government’s position," Foxtel CEO, Richard Freudenstein, said.
"By proposing tougher measures to crack down on piracy, the Government is reflecting the views of a majority of Australians who believe that piracy is theft," the CEO of the Australian Subscription Television and Radio Association CEO, Andrew Maiden, said.
Maiden said that the pay TV sector would work with ISPs to make sure that content owners and carriers shared the cost of a new anti-piracy regime.
"The industry will continue taking supply-side steps that make it easier for Australian television viewers to act lawfully," Maiden said.
"But the fact that someone may wish services were cheaper or offered on different terms is no better an excuse for piracy than for shoplifting,"
Copyright Agency chief executive Murray St Leger said that Australians "overwhelmingly want creators to be paid for the work they distribute online". The organisation believes that copyright reform is overdue.
"We want an internet that works for everyone — creators, consumers, tech providers and ISPs, and that means effective measures to reduce online piracy are paramount," St Leger said.
A statement issued by Greens Senator Scott Ludlam said that Turnbull "appears to have undergone a Damascene conversion on the issue of Internet piracy".
"Just two years ago, Turnbull said the High Court came to 'the right decision' when it found that ISPs such as iiNet were not responsible for their users pirating film and TV content on the Internet," the statement said.
"But last week Turnbull put his name to a discussion paper which openly canvasses overturning the judgement."
Consumer group Choice earlier this week criticised the discussion paper's anti-piracy proposals as likely to be ineffective and failing to deal with the root causes of unauthorised downloading of content. The group wants action on the so-called 'Australia tax': The name given to the significant difference in price of digital goods bought in Australia compared to other nations.
The group has called on the government to implement decisions contained in the report of an inquiry into IT pricing in Australia. The inquiry's report, At what cost? IT pricing and the Australia tax was tabled in July last year. As yet there has been no government response to the report.
The Communications Alliance, an industry body for telcos and ISPs, has welcomed the release of the paper. However, the organisation's chief, John Stanton, said that its members don't agree that the iiNet court decision undermined Australia's international obligations with respect to copyright.
Stanton said that the expansion of authorisation liability in the Copyright Act "has the potential to capture many other entities, including schools, universities, libraries and cloud-based services in ways that may hamper their legitimate activities and disadvantage consumers"
The Comms Alliance is calling for "a holistic end-to-end approach, supported by Government, rights holders, ISPs and consumers" and other measures such as better access to content for consumers, legal protection for ISPs, and independent oversight for a copyright enforcement regime.
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