Crikey got hold of a response paper from Hollywood studios to the government's proposed crackdown on copyright infringement. It's not exactly a surprising paper, except that it's surprisingly aggressive.
Image: Glen Scarborough
The response, which Crikey obtained and which you can read here details exactly what a number of Australian film bodies representing the vast majority of Hollywood studios would like done in the ongoing debate around copyright infringement in Australia.
Specifically, the response is in the name of The Australian Screen Association (ASA), the Australian Home Entertainment Distributors Association (AHEDA), the Motion Picture Distributors Association of Australia (MPDAA), the National Association of Cinema Operators (NACO) and the Australian Independent Distributors Association (AIDA).
The paper calls for a legislative response to piracy, stating that "Australians have become internationally renowned as being the most active internet pirates of US television and movie content" despite "the fact that the content industries have ensured the ready availability of online digital platforms and education of consumers on where they can acquire legitimate digital content."
Predictably, the paper calls for ISPs to hold a significant level of liability, stating that "The problem of online copyright infringement cannot be tackled by rightsholders on their own. Litigation against individual infringers, or even against individual websites is not a practical or effective solution" but that "Any practical solution to online copyright infringement needs to target the elements over which we, as Australians, have control: namely, the internet connection via which unauthorised copies of works are being made available to and are being accessed by local consumers en masse."
It further goes on to argue that "It is artificial – and unconvincing – to suggest that an ISP cannot take any action to prevent infringement by users of its services. ISPs have the contractual right to stop a subscriber from misusing their services and could clearly discourage infringing use of the services if they decided to do so. "
The paper is scathing in its assessment of the 2012 iiNet case, stating that it's "has removed incentives for ISPs to cooperate with rights holders to address online copyright infringement, contrary to Australia’s international obligations."
What this boils down to is that the submitting bodies would like an extended liability system to be put into place to force ISPs to take an active role in policing their users or face liability claims themselves. This is seen as desirable by those bodies in order to effectively force ISPs to do this work
"Once the authorisation liability scheme is amended to make clear that ISPs will be liable for infringements of copyright by their subscribers which they know about but do not take reasonable steps to prevent or avoid, an industry code prescribing the content of those ‘reasonable steps’ is likely to be agreed between rightsholders and ISPs without excessively protracted negotiations. This is because, once the incentive for ISPs to cooperate is in place, there is increasing international precedent for, and consensus about, the type of steps that can be cooperatively taken by ISPs and copyright owners to address online copyright infringements and which effectively balance the interests of all stakeholders, including consumers."
The issue of who pays for an enforcement scheme has long sat at the core of disagreements between ISPs and copyright bodies. The copyright holding bodies are seeking to share costs of implementing such a scheme:
"...each group bears the costs that are an incident of their own operations in relation to the ‘reasonable steps’ scheme. Copyright owners would pay their own costs of identifying the infringements and notifying these to the ISP, while ISPs would bear the costs of matching the IP addresses in the infringement notices to subscribers, issuing the notices and taking any necessary technical mitigation measures."
They're not in favour of the New Zealand model, which uses flat pricing for infringement notifications paid for by the rightsholders:
"Rightholders did not support such a payment scheme and informed the NZ government that this was the wrong approach and the cost imposed by the scheme was uneconomic and would result in few notices being issued."
They're keen on having an absolute legislated set of guidelines for what "reasonable steps" for an ISP should be, primarily to avoid a repeat of the iiNet trial and case because "that removed any incentive for ISPs to take action of any kind in the face of infringements known to be occurring on their networks. "
They also support the introduction of legislation to enable them to apply for court orders against ISPs not blocking access to specified copyright infringing sites outside Australia.
"The Australian Film/TV Bodies support the proposed extension of injunctive relief to block infringing overseas websites in the Discussion Paper. This is a vital development, overdue under Australian copyright law, for tackling the predominantly criminal supply of infringing content that Australian infringers do access. "
It's pretty well known that site blocking doesn't stop anyone particularly determined, but this is dismissed:
"Site blocking injunctions are effective. The fact that some subscribers (likely to be a small minority) could seek to circumvent the orders does not deny their effectiveness."
They'd also like the ISPs to bear the costs of site blocking themselves,
"This reasoning would strongly support the introduction of no-fault site blocking orders in Australia. Sites like Pirate Bay and the range of torrent and P2P sites that have been blocked in the United Kingdom are all primarily infringing sites, which would be apparent to consumers and are offering content that could be obtained legally in Australia – usually from a variety of channels. "
Actually, they're not particularly keen on paying for much at all, as seen later at point 107 of the paper:
"The proposal that rights holders 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 is disproportionate, unnecessary and out of step with international practice."
In terms of measuring effectiveness, they're not buying the argument that piracy helps sales:
"The absence of a commonly accepted approach for quantifying the volume and impact of infringement has posed a challenge to addressing online copyright infringement. It led to questionable research asserting that copyright infringement does not in fact harm legitimate sales."
There's even a massive reinterpretation of the final discussion point:
QUESTION 11: Do the proposals have unintended implications, or create additional burdens for entities other than rights holders and ISPs?
"Question 11 is framed as a negative enquiry, whereas it should be framed as a balanced enquiry that calls for both an examination of benefits as well as burdens (if any) of the proposals in the Discussion Paper. There are clearly a range of benefits to other organisations and people from the reduction in online infringement in Australia."
If you're curious, the benefits to others according to the paper include removal of gateways for malware and identity theft, lessening of advertisements that were not "mainstream", identified as " sex industry, malware, gambling, scams and downloading adverts" and that
"Providing incentives to consumers acquire legitimate content and discouraging access to websites and services that offer infringing content is also likely to contribute to a safer online experience for most consumers and their families."