Communications Minister Malcolm Turnbull and Attorney General George Brandis have written to ISPs, telcos, copyright owners and content distributors telling them to develop an anti-piracy code or have one forced upon them.
The letter is published here. It tells all parties they have until 8 April 2015 to develop a code that will enable the enforcement of sanctions against people who infringe copyright by downloading content from illegal sources.
If they do not come up with a code, “the Government will prescribe binding arrangements either by an industry code prescribed by the Attorney-General … or an industry standard prescribed by the ACMA … on such terms as agreed by us.
“The Government would like all parties to collaborate to develop an agreed voluntary code. However, if an industry code is not voluntarily developed, the Government will direct the ACMA to develop and apply an industry standard. The ACMA can direct an industry participant to comply with an industry code. Compliance with an industry standard is mandatory.”
The industry has not previously been able to develop such a code – the sticking point has always been who will pay for the implementation and enforcement.
ISPs essentially say that rights holders should pay, as they are the ones who will benefit financially if people pay for content rather than pirate it. And rights holders say ISPs should pay, because it is their networks that are being used to perform these acts of piracy.
Those problems are likely to remain. The Government’s letter says the code should “fairly apportion costs as between ISPs and rights holders,” but those two groups have a very different view on just what is ‘fair’.
Turnbull has written a major piece on his website on the subject, including a detailed ‘Frequently Asked Questions’ section – which in this case does indeed lists questions that are frequently asked. He says the Government has sought the “least burdensome and most flexible way of responding to concerns about online copyright infringement, while protecting the legitimate interests of the rights holders in the protection of their intellectual property.”
The letter lists a number of features that the Government expect the code to contain. ISPs must take “reasonable steps” to deter online copyright infringement on their network. This is not spelt out, but the letter does say that it should include the development of an education and warning notice scheme.
ISPs should then inform consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content. Then the code should “include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices.”
In other words, it is up to the ISP to identify copyright infringers, then advise rights holders as to who they are. The rights holders can then initiate their own action against the infringers. This is similar to the ‘three strikes’ system in use in New Zealand, and was always Turnbull’s preferred option.
This approach has been the subject of much debate in Australia over the last six months, including a robust public forum arranged by Turnbull (CommsWire, 10 September 2014). Now the Government is essentially mandating it.
“The Minister and the Attorney-General expect strong collaboration between rights holders, ISPs and consumers on this issue.”
The Government also said it will amend the Copyright Act to enable rights holders to apply for a court order requiring ISPs to block access to a website, operated outside of Australia, which provides access to infringing content. This approach, designed primarily to shut down Bit Torrent websites like The Pirate Bay, has been shown to be largely ineffective.
“In a world of rapid changes in technology and human behaviour, there is no single measure that can eliminate online copyright infringement,” says Turnbull. “In light of this the Government will review the measures 18 months after they are implemented, to assess their effectiveness.”
The Government also pays lip service to what has been shown to be the main cause of piracy the reluctance of many rights holders to make content more easily available. Here’s one of Turnbull’s FAQs:
Q: The IT pricing inquiry provided recommendations to improve consumer access to digital services, why hasn’t the Government responded?
- The Inquiry raised significant public awareness of the issue of price disparity and brought to the attention of Australians a range of options and opportunities available to level the playing field.
- The Government agrees that Australian consumers should be empowered to seek out goods and services at the best available price, consistent with the measures being introduced for online copyright.
- There are also a number of other processes underway within Government including the Competition Policy Review (the Harper Review) and the Government’s consideration of its response to the Australian Law Reform Commission’s report into Copyright in the Digital Economy.
- The Government is currently considering the response to the IT pricing inquiry and will table it shortly.
… and another:
Q: Many Australians use a VPN to access Netflix in the US. Is it illegal for me to use a VPN to access Netflix?
- The Copyright Act does not make it illegal to use a VPN to access overseas content.
- While content providers often have in place international commercial arrangements to protect copyright in different countries or regions, which can result in ‘geoblocking’, circumventing this is not illegal under the Copyright Act.
Turnbull also addresses the issue, raised by some people, as to whether the Government’s recently introduced data retention legislation be used to police copyright infringement
“The data retention legislation is vital for law enforcement and national security, not for copyright enforcement. The Telecommunications Act 1979 regulates access to data for law enforcement and security purposes, not civil matters, and it is a matter for the rights holder to pursue an infringement of copyright.
“The proposed data retention regime will not change the existing arrangements for access to telecommunications data.”