Australians May Get Their Own SOPA

from the christmas-time-for-copyright-owners dept

Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited–as well as copyright industries–have been clamoring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies [pdf].

There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There have been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognizing that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favored by Turnbull.

In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners:

Things that don’t make money:

  • Complaining about piracy.
  • Calling your customers thieves.
  • Treating your customers like thieves.

In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests.

The Internet Filter

The proposal to give copyright owners the power to block websites is highly controversial. The Australian Government have devised a local version of the Stop Online Piracy Act–nicknamed #SOPA. There is a concern that such a power will interfere with civil liberties, traditional freedoms, and Internet rights. There is also an anxiety that copyright trolls will abuse such a scheme. The Australian Government has not explained what safeguards and protections will be in the bill.

Malcolm Turnbull has been super-sensitive to criticisms of the copyright regime. He was incensed by questions from the Fairfax journalist Ben Grubb about whether the legislation was an internet filter:

That’s nonsense Ben. There’s no internet filter here at all. What on earth are you talking about? What we’re, look, what we are simply doing is proposing to amend the ? we’re going to amend the Copyright Act to make it more straightforward for rights owners to do what they can do now, which is to seek an order that access be prevented’ to a site that is infringing content. Now the reason for the legislative provision is to make it available, is to enable you to get a remedy against an ISP -in other words to get an order against an ISP whose costs would have to be covered and so forth to block access to an overseas illegal download)?, uh, pirate site. I’ll just use the word pirate because it’s easy we understand what we’re talking about. So if you have, you know, in Australia and you are happily streaming, you know, unlicensed copies of movies, then this amendment would have no relevance to you because the rights owners can go after you directly.

Critics of the regime have been unconvinced by such sophistry, and have been of the view that blocking websites amounted to an internet filter.

Professor Dan Hunter from Swinburne University has commented that blocking websites is bad for Australia’s digital economy. He observed that ‘a poorly drafted law will inevitably be used to threaten Australia’s nascent cloud computing industry, because cloud storage is where a large number of infringing files are found these days.’

The Copyright Code

The Australian Government has given an ultimatum to internet service providers to co-operate with copyright owners or else. If internet service providers refuse to co-operate within four months, the Australian Government will be able to impose its own industry scheme. The Ministers explained:

The Attorney-General and the Minister for Communications have written to industry leaders requiring them to immediately develop an industry code with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997. The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content. The Minister and the Attorney-General expect strong collaboration between rights holders, internet service providers (ISPs) and consumers on this issue. A copy of the letter to the industry leaders is attached. Failing agreement within 120 days, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

Such a proposal involves a striking combination of copyright law and media law. Internet service providers face a Hobson’s choice–they can either submit to an industry code with copyright owners in a short time frame, or else have the Federal Government impose an industry code upon them.

Dr. Nicolas Suzor and Eleanor Angel from Queensland University of Technology have provided an incisive analysis of the regime:

ISPs and copyright owners have 120 days (over the holiday period) to come to agreement on an issue that they have been at loggerheads over for the past five years. The government hasn’t given ISPs much negotiating power, either. The clear threat is that if ISPs don’t give the industry what it wants, the government will do it for them. These types of industry codes can be an effective way to regulate, but the only way they will reflect the overall public interest is if consumer groups are also given a seat at the negotiating table. We also need transparency and continual monitoring to ensure the scheme is not being abused, and public interest groups must have the power to effectively protect end users. In this proposal, consumer groups are not invited, and rightsholders hold all the power.

The Coalition Government’s tactics and strategies in this area are crafty. Professor Susan Sell has highlighted the use of soft power in copyright policy-making. This is a classic instance of trying to use industry codes and private agreements to achieve copyright goals. There will be much debate over whether the new scheme will constitute an Internet Tax.

Consumer Rights

Australian consumers have been let down by the copyright proposals. There is no defense of fair use, even though such a defense had been recommended by the Australian Law Reform Commission. There is no policy action on IT pricing rip-offs by copyright owners and information technology owners. Furthermore, the Government has failed to provide for a general safe harbor for intermediaries. As a result, Australian consumers are third-class citizens in the digital economy–lacking the rights and privileges of their counterparts in the United States.

The Coalition Government has not extended the safe harbor for intermediaries such as search engines, social media, and internet video sites. Malcolm Turnbull noted: ‘Given that this is related to broader issues than just online copyright, this proposal will not be pursued at this time.’ He stressed: ‘The Government expects that schools, libraries, search engines and wifi providers will continue to take steps to reduce online copyright infringement on their systems.’ Such a decision represents a public policy failure for Google–which had been heavily lobbying the Federal Government for an extended safe harbor. Google’s Digital Alliance has protested against the decision. However, the Coalition Government has shown little sympathy for Google and other information technology companies–especially given the scandal over tax avoidance in the new economy. Moreover, the Coalition Government has been keen to please Rupert Murdoch–who has called Google ?Kleptomaniacs? in the past.

Nonetheless, such an approach to intermediary liability in respect of copyright law is of concern. It is outrageous that Malcolm Turnbull expects that schools and libraries will be copyright cops and police copyright infringement on their networks. Such a proposal will interfere with the mission of schools and libraries to provide access to knowledge.

Although the Coalition Government emphasized that timely access to affordable copyright content was key to addressing copyright infringement, the policy package provides no legislative or administrative proposals to address that issue. Turnbull sought to explain why the Coalition Government had not responded to the IT Pricing inquiry: ‘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.’ He noted: ‘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.’ Turnbull observed that ‘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.’ While the Coalition Government has deferred its response to the IT Pricing inquiry, it has rushed ahead with its proposals to enhance the rights and remedies of copyright owners.

Political Responses

In response, the Australian Labor Party has lambasted the proposal. In a powerful critique, Jason Clare MP has maintained that the Abbott Government does not understand the Internet:

The Abbott Government has made it clear it doesn’t understand the internet or its users. Senator Brandis demonstrated this with his complete inability to explain metadata earlier this year. Malcolm Turnbull is about to buy an ageing copper network because he thinks that by 2023 the median household in Australia will only require 15 Mbps.

Jason Clare argued: ‘It is clear that action is needed both to deter piracy, and to encourage access to legitimate content.’ He also wondered whether the proposals of the government would be effective: ‘Site-blocking is unlikely to be an effective strategy for dealing with online piracy’. Jason Clare maintained that ‘the Government has passed the buck back to industry, asking rights holders and ISPs to reach an agreement among themselves’. He contended: ‘Any crackdown on the infringement of copyright needs to be accompanied by changes to make copyright law fairer, clearer, and more in keeping with public expectations’. In his view, ‘The Government should look after the interests of consumers.’

The Australian Greens have also been highly critical of the copyright proposals of the Coalition Government. Senator Scott Ludlam has commented:

The Greens will not support amendments to the Copyright Act to allow rights holders to apply for a court order requiring ISPs to block access to a website. Such a move would be a defacto Internet filter and would allow rights holders to unilaterally require websites to be blocked. This kind of Internet filter would not be effective at all, due to the widespread availability of basic VPN software to evade it.

Senator Ludlam was also of the view that the ultimatum for a copyright code was unjust: “The Australian ISP and content industries have continuously failed to successfully negotiate a shared approach to copyright infringement over a period of at least three years, due in large part to the unwillingness of copyright holders to be flexible in their position.” He observed: “In this context, the Government’s requirement that a joint code be developed within 120 days is farcical.” In his view, “This is not enough time to develop a code.” Senator Ludlam lamented that “the Government has not specifically allocated a role for public interest organisations to have a place at the negotiating table,” even though “users will be the ones most affected by this new code.” He concluded: “Any industry code will be easily evaded by copyright infringers and will not address the real issue: The lack of timely, affordable availability of content in Australia, which other markets such as the US already enjoy.”

CHOICE Australia–the leading consumer rights’ group in Australia–was also disappointed by the copyright proposals. Alan Kirkland was wary of ‘an industry-run internet filter to block ‘offending’ websites’. He commented:

We know that internet filters don’t work. This approach has been called ineffective and disproportionate by courts overseas, and it risks raising internet costs for everyone.

Kirkland said that there was a need to fix the availability, and the high prices in respect of copyright works.

The Communications Alliance has been cautious about the Coalition Government’s copyright plans.

Pirate Party Australia has denounced the new copyright regime. President of the Pirate Party, Brendan Molloy, has commented:

This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportionate, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment.

Deputy President, Simon Frew, added: “Website blocking is censorship, plain and simple.” He commented: “By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds.”

The Institute of Public Affairs has also expressed reservations about the proposed copyright regime. Chris Berg commented:

The government’s proposal to block websites that infringe copyright is an internet filter and a threat to free speech. This is nothing more than an internet filter, of the sort which the Coalition proudly opposed when it was proposed by the Rudd and Gillard governments. There is no reason to believe that this will reduce copyright infringement in any material way.

Such criticism is notable–given that the Institute of Public Affairs is often an ally and a friend of the Coalition Government, across a range of policy fields.

The Future of the Internet

It will be interesting to see what the Australian Senate will make of the Coalition Government’s proposals in respect of a copyright crackdown in 2015. The Australian Senate has been compared to the Star Wars’ Cantina–such is its diversity and variety. Much will depend upon cross-benchers like Nick Xenophon, the Palmer United Party, Family First, the Liberal Democratic Party, and various micro-parties and independents.

The Coalition Government’s copyright proposals will further enhance the private power of copyright owners in respect of the governance of the Internet. Bernard Keane worries: “We’ve thus arrived at the fully fledged war on the internet by this government that some of us have long been predicting, a war motivated by commercial interests and the never-satisfied greed of security agencies for more powers of surveillance and control, and a deep and abiding fear of what citizens will do with communications technology that is no longer controlled by governments.” This is disturbing. The Internet will be increasingly subject to the rule of private sovereigns. As Tim Berners-Lee says, we need a Magna Carta to protect an open and accessible Internet–rather than a copyright crackdown.

Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA).

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Comments on “Australians May Get Their Own SOPA”

Subscribe: RSS Leave a comment
tqk (profile) says:

Re: Re: Re:

It’s time for a new internet. One with stronger protection against meddling by destroyers such as the copyright regime …

To do that requires that people have control of the copper, fiber and wireless networks.

Not really. As the article says, all of this will be ignored and gotten around within seconds by tech-savvy users. We don’t need to use ISP’s DNS which implement blocking, there are plenty of free proxy servers out there, VPNs are easy and cheap, and we have tor.

We shouldn’t have to go to such lengths to get around silly schemes forced on us by bought and paid for politicians, and we shouldn’t have to make up for the fact that the Imaginary Property industries can’t learn.

We can, though, and it doesn’t take an all new, entirely different set of infrastructure to do it.

Anonymous Coward says:

Re: Re: Re: Re:

That leads to a split Internet, an open Internet for those that know how to, and are prepared to get round various restrictions, ans a censored Internet for everybody else. That is almost as dangerous for society as the censorship that is being built, in that political activists will get round the restrictions, but will lack the conversations for less politically engaged people.
Many of the current problems are due to politicians talking to themselves and the elites, without engaging the people they are meant to represent, and a restricted conversation amongst those that would change that situation is just as bad. Isolate the political opposition into an enclave and the result is either the replacement of one tyranny with another, or a prolonged civil war.That is having two or more groups who claim to represent the people, but who they do not talk to the people, is always a disaster for society.

Chris Brand says:

Notices to infringers

“The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content”

Given that a lot of the complaints are that content isn’t actually available in Australia, this could be interesting. I wonder how many people will get notices saying “You should just live without the content you were downloading without authorisation, because nobody makes it available to you legally”.

Unfortunately in reality it will probably just be a generic “try these wonderful major-label sites!”. Still there’s an opportunity here for the ISPs to make a point.

That One Guy (profile) says:

Re: Notices to infringers

Nonsense, just because something is impossible to legally buy in an area, doesn’t stop a download of it being a lost sale, because at some point in the future, the copyright owner might, perhaps, maybe think about making it available in that area.

It’s like if I ran a company that sold cookies, and yet, despite there clearly being a demand for them in a certain area, refused to sell my wares there. If someone were to somehow find out what recipe I used and cook up some cookies on their own, or bought cookies from someone else, clearly I lost a sale, because I might have decided at some point in the future to sell there.

How is a company supposed to stay in business if theoretical profits are destroyed like that, ask yourself that why don’t you.

-Maximalist logic

Anonymous Coward says:

Re: Notices to infringers

I am Australian.

A few years ago, I downloaded the ebooks of the Harry Potter series to read on my tablet

I already purchased (and still own) the paper-back versions of each and every one – and I own copies of the first in both Latin and Italian, plus an audio-book version, so have already paid for the content three ADDITIONAL times – of the Harry Potter series

Ludicrously, I was referred, in the copyright notice, to itunes for “legal access to the digital content you enjoy”

Format-shifting is not enshrined in our law – maybe I should have to pay a fee each time I want to access content??

Anonymous Coward says:

the most important information i’m still waiting for is why Brandis is so intent on throwing everyone in jail or into orbit when downloading or watching media that is supposed to be illegal? no one and i mean no one goes into something as hard and as focused as he has on this and no one, does this for nothing!! if he isn’t got hands in the cookie jar, i’ll be extremely surprised! often the one who shouts out about something the loudest is the worst offender!!

Anonymous Coward says:

Senator Brandis is a man who "reaaly" believes in the Rule of Law

Please, please, Senator Brandis is a man who really truly believes in the Rule of Law. I have seen written proof of this fact. He wants a well regulated and run society where people are always law-abiding and decent.

For the rest of us the only problem is that he wants to define what that Rule of Law is. As long as it suits him and those who pay him, he will make the Law whatever will Benefit him and those who support him as he couldn’t care any less about the general population of Australia.

The way he acts is as if he were a Kiwi.

Anonymous Coward says:

Game Of Thrones in Australia

Want to watch “Game Of Thrones” legally in Australia at the same time as it’s on HBO? (It’s delayed by about an hour or so, so they can download it!) Subscribe to Foxtel ($25/month) and add the “Drama” option (additional $20/month) and voila you have the channel that plays “Game Of Thrones” plus about 25 other channels you don’t want, all for the low low price (HA!) of $45 per month on a 12 month plan plus $75 connection plus $75 installation fee.

Or subscribe to Foxtel Play for your mobile phone and skip the installation fees. You can watch the channel with “Game Of Thrones” on your PC or mobile, also for $45 per month. There’s no contract on this pack, but it’s still $135 just to legally watch the next season of “Game Of Thrones” next year. Yay legality!

tqk (profile) says:

Re: Game Of Thrones in Australia

Want to watch “Game Of Thrones” legally in Australia at the same time as it’s on HBO?

Devil’s advocate … 🙂

Yeah, that’s pretty expensive and I couldn’t justify the expense, but you can/would? If you couldn’t slurp it down from TPB (et al), you’d pay that?

Well, reality bites. If GoT now is that important to you, that’s the going price for it. You don’t like that price, don’t pay it and do without. It’ll show up in a library in a few years, or you can watch it at a friend’s place instead.

Otherwise, you’re “stealing.”

Yeah, it’s a lousy deal and they ought to be able to do better, but they won’t. Sucks to be you. Does any of that justify “pirating” it? I don’t think so. You’re the one who’s so determined to watch it NOW. Well, this is what it costs. Pay their price, or wait for the library to get a copy. Or don’t allow yourself to get sucked in by the marketing. Don’t bother to watch it and save your money. GoT sucks, really. It’s violent, mysoginistic, expensive crap.


Anonymous Coward says:

Re: Re: Stealing or copying ephemeral items.

Stealing always requires you removing from the possession of another what they already have. If after the act, they still have it, then you’ve “stolen” nothing.

You can steal lots of ephemeral things, like freedom, reputation, access to knowledge, etc. But ideas or copies of things or even their “right” to copy things, they still have it, even after you have copied something.

A lost sale is just that a lost sale.

Unfortunately, our politicians and business men/women want to promulgate the idea that a lost sale is stealing.

Pirating something involves theft and there are real pirates around the world today – many of them are politicians and businesses. Copying something is rarely, if ever, piracy. It seems to me that those who complain most about piracy and pirates are in the position of the kettle calling the pot black.

tqk (profile) says:

Re: Re: Re: Stealing or copying ephemeral items.

It seems to me that those who complain most about piracy and pirates are in the position of the kettle calling the pot black.

Irrelevant when they own the guns.

So, you’ve been so sucked in by the marketing, you can’t do without? That’s a bit pathetic, I think. The wiser solution to the problem is to wise up and boycott them. Find other stuff (there’s lots out there) that’s sold for a more reasonable price. The MafiAA’s stuff is too expensive, and I’m not talking just about money. I’m talking about bribed and bought politicians, laws written to protect special interests, oppressive laws criminalizing copying, & etc.

I’d rather do without than pay their price.

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