Brandis’ leaked copyright proposals are unrealistic
In this cross-posting from The Conversation Nicolas Suzor and Alex Button-Sloan from the Queensland University of Technology look at why the leaked plans to change copyright laws could lead to a lot of unintended problems for consumers.
The Australian Government has proposed Internet Service Providers (ISPs) monitor and punish Australians who download and infringe copyright.
In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law. If implemented, it would force ISPs to take steps to prevent Australians from infringing copyright.
What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.
The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
Unlikely to help pricing and availability
The problem is that this move is not likely to make things better. Similar schemes have been tried around the world, but there is little evidence they actually work to reduce copyright infringement.
This draft proposal does nothing to address the basic issue that Australians are not being fairly treated by the copyright industries. Compared to consumers in the United States, Australians pay more for digital downloads, have less choice in how they can access film and television, face large delays before content is released, and much foreign content is still not available at all in Australia.
Recent research suggests that Australian consumers feel ripped off by distributors, and this is a key reason why they choose to download films and television instead. If foreign film and television networks want to reduce illicit downloading, many think that their first step should be to provide better, cheaper, and more convenient legal ways for consumers to pay for access.
Unintended consequences
Meanwhile, the draft proposal is likely to have serious unintended consequences. It is likely to raise the price of internet access in Australia, as ISPs will pass on the increased costs of monitoring and enforcing copyright.
The proposals will also cause major uncertainty in copyright law. The government plans to overturn the recent iiNet case, where the High Court ruled that ISPs are not responsible when people use BitTorrent to download films. The Court sent a strong message that iiNet could not be liable because it did not control BitTorrent protocols and did nothing to encourage their use.
The iiNet case confirmed a basic principle of copyright law: service providers are only responsible for the conduct of third parties when they have some control over their acts. The leaked proposal will remove this limit and, with it, the ability of the law to clearly distinguish between real wrongdoers and companies who merely provide general purpose services to consumers.
This will massively increase the potential risks for companies that provide legitimate services. As well as ISPs, these include hardware manufacturers, cloud service providers, libraries, schools and universities, and many others.
Requiring service providers to act as copyright police is also dangerous. It removes the safeguards that our courts provide in ensuring the law is applied fairly. Copyright law is incredibly complicated, and allegations of infringement made by copyright owners against consumers have historically been notoriously inaccurate. ISPs are not well placed to investigate these claims, and there is a serious risk that consumers might be unfairly punished under these proposals.
Consumers left out of the debate
The proposals create a strong incentive for ISPs to agree to rightsholder demands to protect their interests. They do not, however, provide much protection for consumers, who will have no seat at the negotiating table.
The proposals are also ominously vague. They include the threat that more regulations will be introduced if ISPs do not go far enough to protect copyright. Eventually, this could also turn into a so-called “three-strikes” regime, where entire households are disconnected from the internet after several allegations of infringement.
Despite having been in the works for at least six months, this leak is the first time the public has been able to see any details. Meanwhile, the Attorney-General has been meeting with copyright lobbyists, but apparently not yet with either consumer groups or with telecommunications companies.
It seems the Attorney-General’s Department didn’t even listen to Malcolm Turnbull’s Communications Department, which has stressed the importance of ensuring that Australians have increased access to legitimate sources of content at a fair price.
Once the leaked proposals are officially released, Australians will have less than a month to comment. Since this is likely to impact on everyone, we suggest that you add your voice to the debate – but you’ll have to be quick.
Nicolas Suzor is senior lecturer, at the Queensland University of Technology school of law.
Alex Button-Sloan is a fellow of Queensland University of Technology’s IP & innovation law research program.
This article was originally published on The Conversation.
Read the original article.
All it does is accelerate the mainstream take up of encryption.
Bloody hard to find one needle in a needle-stack.
(And if you’re a journo, doctor, lawyer or anyone else who deals with confidential source, patient, client type stuff – why aren’t you already encrypting all your data and traffic? huh???)
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Not to mention that people will avoid any steps put in place to stop downloading. Seedboxes, encryption, etc
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Lets not forget that the method used by ISPs internationally to monitor customers, such as Deep Packet Inspection, is highly evasive, and I would argue, a breach of privacy.
Passwords, bank accounts, medical records, et al will be monitored 24/7 if this goes ahead.
The government needs to foster competition, provide more choices for Australians, at fair prices, and the result will be a dramatic reduction in piracy.
This should be core to the government’s policy before heading down this road.
If Netflix, as an example, was allowed to operate in Australia, as it does in the US, with no ridiculous restrictions, and at the same price point, it would severely erode Foxtel’s stranglehold on content – and that my dear countrymen and women, is the reason for the proposed copyright laws. Protect the current establishment and their investment
regardless of the fact that the pricing is unfair and the product offering, especially when compared to other western countries, is lousy.
If you’re not concerned about your limited lack of choice, or the price you currently pay, you should be concerned about the further erosion of your privacy that this proposed law will impose – unintended consequences indeed!
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Janice, could you please point out how the government has restricted or set price points for Netflix here in Australia?
And do you REALLY think that passwords, bank accounts, emails, online purchases etc are NOT monitored 24/7 now.
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Netflix will enter the market once they can secure the right peering and ISP embedded relationships. they have been exploring the lower level requirements. the ISP sector knows this, its openly discussed on the techie lists.
It doesn’t help that Foxtel secured exclusive rights to content which netflix would seek to distribute OTT.
Netflix has to consider its cost/benefit side. Its chosen to expand into other IPR regions in europe first. Thats not to say there aren’t monopolistic dinosoar telco/cable companies there too, but they aren’t geographically challenging the way Austraya is.
Brandis’ report is a shonk. He’s cost shifting to try and secure paper benefits to a whiney industry sector. Its about as useful as a bog paper spoon. Last time AG tried to tell us how to behave online, it worked so well for Conway and the rest, didn’t it?
I have sympathies with rights holders at source, but rights acquirers for distribution are the kind of capitalist I think we can all rejoice to see ride past in the tumbrill. I used to feel the same way about publishers but whilst Hachette is a rapacious market beast, they have nothing on Amazon for dominance. Rupert can sole source his own content all he pleases. When he uses capital to secure exclusive rights to things we can source direct and then forces legislation to prevent us sourcing them direct, he’s being the thing we have to put back in a box.
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Abbott government payback to Murdoch, which recently claimed that it looses 20% potential income due to on-line piracy.
It’s stupid in conception, and unworkable in reality: just the sort of thing to get Abbott stepping up to the podium so say something like: “This is the RIGHT thing to be doing. Doing this is the RIGHT thing. Yes, your government is doing the RIGHT thing here.”
BOLLOCKS! It ain’t piracy, and it ain’t going away.
BTW: the http://pirateparty.org.au/ is doing stuff on this: join in!
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