Attorney General George Brandis has been banging his head against his desk for months now trying to figure out how to stop pirates stealing content in Australia. Thanks to a leak of the government's upcoming discussion paper on the topic, we now know what the AG plans on introducing.
Crikey leaked the government's "Online Copyright Infringement Discussion Paper" this afternoon, and it shows that all the moves we expected — and a few more — will likely be employed to combat piracy.
Affordability And Availability
Industry submissions from the likes of Google and others have all pointed to the same problem when it comes to piracy: the price of content in Australia is too damn high, and it takes ages to get here.
In the new entertainment economy, users want content faster and for better value when compared to the prices of overseas streaming services. Instead, we're saddled with streaming services that cost top dollar and long waits for content.
Content creators and relevant industry groups which have been lobbying the government on piracy for years now have gone on record saying that they don't believe in the pricing and availability problem, but despite their posturing, the government now sees the issue too.
In its leaked discussion paper, the government freely admits in the first sentence of its introduction that there's a real content problem in Australia:
"There are a number of factors that contribute to online copyright infringement in Australia. These factors include the availability and affordability of lawful content, the case with which consumers can access unlawful material and consumer awareness of legitimate services," the government wrote.
Translation? Aussies wait too long, pay too much, pirate too often and don't know about decent legal streaming services.
So what does the government plan to do about all that, then? Well, not much. Unsurprisingly, the government would rather hit you with a stick than lure you with a carrot.
It has been anticipated for some time that the government would pursue site blocking measures in order to cut down on Piracy. Now we know for sure that the government wants to kill access to sites like The Pirate Bay from Aussie connections.
In a section headed "Extended injunctive relief to block infringing overseas sites", the government details how it would like to see rights-holders given the power to sue ISPs to block sites offering "infringing material":
"A...provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement. If adopted, any proposed amendment would be limited to websites operated outside Australia as rights holders are not prevented from taking direct action against websites operated within Australia," the government wrote.
To save time, the government would allow rights holders to sue multiple ISPs at the one time to ensure they all block access to a particular "infringing" site in Australia.
"Such a power would clarify that a rights-holder may list a number of ISPs as respondents to an application for injunctive relief. This would reduce the opportunity for people to 'evade' the operation of such orders by switching ISPs. The websites would need to be blocked by carrier level ISPs at the wholesale level, ensuring that re-sellers would be unable to make blocked sites available to subscribers."
To get a site blocked in Australia, the court would have to be convinced by use of evidence presented by rights-holders that the primary function of any site in question would be to distributed copyrighted material. The court would then take into account the rights of those being affected by the site blocking proposal if it were to pass, and "the importance of freedom of expression".
The good news about potential site blocking schemes is that the government is prepared to make rights-holders to pay for the process.
"Rights-holders would be required to meet any reasonable costs associated with an ISP giving effect to an order and to indemnify the ISP against any damages claimed by a third party.
Because it's a discussion paper, the government wants the industry to respond to particular questions. Elsewhere in the paper, the government will ask whether the industry thinks the proposed plan is appropriate. In the instance of site-blocking, the government has already assumed it's a solid idea and pressed on to ask responders to consider what a court should take into account when determining whether or not to block a site.
Site blocking appears to be coming to a Copyright Act near you, whether the industry likes it or not.
The discussion paper also proposes overturning the crucial iiNet vs Village Roadshow decision to comply with various Free Trade agreements with the US and South Korea.
One particular paragraph in the yet-to-be ratified Free-Trade Agreement between Australia and South Korea references a need to amend the Copyright Act to "provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers".
iiNet’s long-running and contentious Federal and High Court trial against Roadshow Films and AFACT established a legal precedent that ISPs should not be liable for the actions of their users in illegally accessing and downloading content that infringes the copyright of media rights-holders.
The KAFTA, it seems, requires that this legal precedent be nullified and the Copyright Act be amended to require ISPs to actively assist copyright holders — likely in identifying alleged pirates, sharing their details with the allegedly aggrieved media companies and forwarding those companies’ infringement notices to end users.
The government anti-piracy discussion paper makes it abundantly clear that the government is looking to overturn the iiTrial decision:
The High Court's decision in Roadshow Films PTY LTD & Ors v iiNet LTD  HCA 16 (20 April 2012 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 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.
The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.
Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and this is consistent with Australia's international obligations.
iiNet's Steve Dalby says the company will wait for the official release of the document before commenting.
@j_hutch Yeah. Still waiting for the official release. I will study it and consult with industry colleagues before commenting.
— Steve Dalby (@Steve_Dalby) July 25, 2014
To make sure that any anti-piracy scheme is working, the government would look to the industry to track the amount of content being pirated in Australia.
"A particular challenge with addressing online copyright infringement is the absence of a commonly accepted approach for quantifying the volume and impact of such infringement. This is important for the Government but even more important for industry as it seeks to develop its own approaches to address the problem.
"It is also essential that industry schemes and commercial arrangements incorporate ongoing monitoring and evaluation to ensure that the approach is reducing online copyright infringement to a sufficient degree to justify the impact of the measure imposed. This will also enable potential future improvements to be identified, which can be implemented through revised schemes and arrangements — a key benefit of the flexibility of the proposed approach."
Wait, didn't AG Brandis say that Australia was the worst country for piracy in the world? How did he know that for sure, I wonder...?
This document lays out a pretty bleak future for Australian content lovers. The government knows there's a content and pricing problem — it even goddamn said so in its paper — but it hasn't laid out a plan to adequately tackle the issue. Too much stick, not enough carrot.
But don't panic: we aren't all screwed yet.
The important thing to remember about this document is that it's a Discussion Paper: it isn't a legal document, it's not about to passed into law in its current form, nor are you about to have your door kicked in by the Feds for pirating Game Of Thrones' fourth season.
This is a document that's about to be circulated to the industry for comment, and you can have your say too once it's officially released.
What do you think of the government's work combatting piracy so far? Will the proposals laid out effectively cut piracy rates? Let us know in the comments.
Campbell Simpson also contributed to this report.