Online Copyright Infringement Discussion Paper

August 6, 2014
Media Releases

It is good to see a lively debate on copyright, the Internet and how to discourage, and ideally stop, people from sharing movies, music and other creative content illegally.

If you just relied on the commentary on social media you would think this was all about Hollywood moguls and rich movie studios.
But of course a lot of people create movies, TV shows, music, pictures, poetry and prose. And all of them make their living because people pay to read, listen or watch that content.

And they include actors, writers, directors, sound technicians, stage managers, poets and composers - to name just a few.

Every time a movie or a TV show is accessed in breach of copyright, all of those people who contributed to making that work lose out.
Nobody would justify going into a supermarket and stealing their weekly grocery order, or stealing a car. Not many people would think it was okay to rip off the latest album, make your own CDs and sell them on the streets or Sydney, or knock off a designer label for that matter, or pass off a cheap white spirit as "Bacardi" when it isn’t.

But many of us seem to think that on the Internet the usual rules don't apply and stuff you would normally pay for in the analogue world, you can swipe for nothing online without feeling bad about it.

We want to ensure that there is an appropriate framework in place that encourages industry cooperation  and much greater public awareness  about this issue. So the discussion paper which we released last week is designed to promote debate and solicit submissions - if you have an opinion about this issue, make sure to let us know.

The Discussion Paper can be downloaded from and submissions should be lodged by 1 September 2014 - send them to [email protected]

One of the big issues in the debate is what should be done about illegal downloads. Many people on the content side want the Internet Service Providers (ISPs) to take responsibility. They argue that if an ISP is made aware that a particular account is being used to download content in breach of copyright then the ISP should if not completely cut off the account at least penalise the infringing account holder by slowing down the speed of access - in much the same way some ISPs do if you don't pay your bill or go over your data limit.

The ISPs on the other hand say "Hang on, you are the guys that say you are losing billions from piracy. Why don't you just sue the people who are infringing copyright? Department stores sue shoplifters, banks foreclose on people who don't meet their mortgage payments - what is it about your industry that says someone else has to take responsibility and impose the sanctions  for protecting your property?"

The ISPs would also point out many practical issues - cutting off or slowing down someone's account will certainly mean they won't be as whippy at file sharing as they used to be, but it may also mean they won't be able to put their kids' pictures on Facebook, work from home, take a university course on line let alone videoconference with a doctor. Given the central importance of connectivity to all of our lives, cutting off or degrading an Internet connection is a big deal - which of course is why the content owners believe it would be such an effective sanction and disincentive to infringing copyright.

And then what about family or workplace accounts where one person is doing the wrong thing and others are not?

The New Zealanders have recently established a system where an ISP - once given notice that a particular IP address has been engaged in breach of copyright - will send a warning notice to the account holder. After the third such notice the ISP gives the details of the account holder to the content owner and they can decide whether to sue him or her. So far the music industry has used this scheme, but the movie industry has not,  not least because the scheme requires the cost of sending the notices to be paid by the owners of the content the copyright in which has been infringed.

The content owners have said they simply do not want to sue individuals. As Village Roadshow's Graham Burke said in this SMH article recently. It costs money and results in bad publicity for the copyright owners. To which of course the ISPs respond "And you think throttling back our customers' Internet access won't be bad publicity for us?"

A big factor in this debate is of course the cost and availability of content. If you make it hard and expensive to acquire content legally and at the same time it is easy and free to acquire it illegally and if the owners of that content are reluctant to take legal action against those who do acquire it illegally, well it’s pretty obvious, in the absence of any other sanction,  that is going to incentivise copyright infringement.

Nonetheless, as we note in the discussion paper and as I have said elsewhere, a part of the solution is making content available in Australia at the same time, or very shortly after, it is released overseas and at a comparable price.

Now let me clear about this. The owners of copyright material, music, movies or whatever, are able to determine the price at which they sell it and when they sell it. That’s their call.

But  their decision as to availability and pricing will have consequences both in terms of incentivising copyright infringement and, very importantly, in the level of public support for stronger measures to stop or discourage piracy. The greater the restrictions on the availability of content in Australia and the higher the cost relative to the rest of the world, the less public support there will be for whatever action is taken to sanction copyright infringers whether it is action by the ISP or a civil suit by the rights owners themselves.

I know that there is some controversy about this (see Graham Burke's remarks on that score in the SMH article referred to earlier) but it seems to me that the music industry has recovered some ground by making their content available relatively cheaply and conveniently through many platforms including iTunes, iTunes Radio, Spotify (my favourite), Pandora etc.

There are now more than 30 legitimate online music services available in Australia yet piracy remains a significant issue for the industry and many artists would argue  that all this plethora of cheap and convenient availability has done is drive down artists' returns.

A measure about which there is likely to be somewhat less controversy is the proposal to enable rights owners to obtain injunctions to ensure ISPs block access to websites which enable illegal downloads and file sharing of material in breach of copyright. John Ferris from Ministry of Sound Australia said today in Crikey "I don't believe that is censorship; its just like shutting down a manufacturer of "fakes"...."

But no doubt there will be practical questions - for example, how much infringing material can a site have before it could be subject to a blocking injunction?

This debate also poses some interesting questions about human nature. It is routinely asserted that most people want to do the right thing and that they "don't understand" that downloading or sharing movies without paying for them is unlawful. If this assumption is correct then a series of warning notices may be enough to materially change behaviour and reduce piracy by a substantial percentage which, in reality, is probably all that one could reasonably hope to achieve.

But what if people do know they are acting unlawfully but nonetheless would prefer to get stuff for free rather than pay any amount, no matter how small, and as long there is little or no chance of detection or sanction they will continue to do so. Those interested in this aspect could do worse than read James Boyce's new book on the doctrine of original sin - "Born Bad."

This is an important issue - so don’t forget to have your say by making a submission in response to the Discussion Paper which can be downloaded from and send your submission to [email protected]

(And if you wonder why comments are closed here - it is so that readers are incentivised to send in a submission in response to the Discussion Paper instead!)

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