The Government’s Copyright Infringement Report Has Problems With The Word ‘Illegal’

The Government’s Copyright Infringement Report Has Problems With The Word ‘Illegal’

A report on online copyright infringement prepared for and published by the Department of Communications says that almost half of all Australian internet users (above the age of 12, currently consuming online media) either downloaded or streamed movies, music, TV or video games “illegally” in the first quarter of this year.

Those numbers taken at face value are stunning, and point to widespread and endemic illegitimate copyright infringement by Aussie ‘net users, and flagrant disregard for the rights of intellectual property holders.

The report has serious issues, though, including the rampant use of the word “illegal”.

Copyright infringement image via Shutterstock

Here are the stats: the report, prepared for the Department by research firm TNS Global, presents a study of Australian internet users aged over 12 responding to a survey of their internet activity from the three months of January to March this year. 60 per cent of those users consumed one or more piece of digital content from one or more of the “four core content types” (music, movies, TV programmes and video games) once or more over the survey period — 54 per cent streamed and 43 per cent downloaded that content. 8 per cent of users “shared” that content, with 5 per cent sharing music, 4 per cent movies, 4 per cent TV and 2 per cent video games. 86 per cent of the (60 per cent of total) consumers accessed some content free, while 47 per cent accessed all of it for free. (The report does note that free does not necessarily mean illegitimate, and paid does not necessarily mean legitimate.)

The report then goes on to estimate that 25 per cent of Aussie internet users aged over 12 consumed content illegally, with 7 per cent accessing only illegal content. Music is more likely to be accessed illegally, while TV and movies are similarly likely and video games much less so. Extending the survey base below the age of 12 and restricting it to those “who consumed content online” brings it to that almost half — 43 per cent — who consumed at least one piece of content illegally. That figure is made up of mostly movies (48 per cent), then music (37 per cent), TV programmes (33 per cent) and video games (22 per cent). Males are more likely to access content illegally, and those between 16 and 34 are more likely than their younger or older counterparts. All the statistics are available in the report (PDF) hosted on the Department of Communications website.

Here’s the big issue: the Copyright Act, at least in its current form, does not say that it is illegal to access international versions of Netflix and other media content through VPNs and the process colloquially known as geo-dodging, as clarified by a post on Communications Minister Malcolm Turnbull’s own blog. It may be illegitimate and it may be against the Terms of Service of said content provider, but it is not illegal. Similarly, the use of the world “illegal” even to refer to material downloaded that (allegedly) infringes on the copyright of a rights-holder is misplaced. It’s not clearly and blatantly illegal in the strictest use of the word; it is a civil issue rather than a criminal one and one that you may be sued rather than prosecuted for, by a private party rather than a police or government body. This is an ongoing issue with government and media reporting on the topic of copyright infringement.

Similarly, the copyright infringement report calls uTorrent and Bit-Torrent “illegal peer-to-peer methods” — that is, methods that illegal downloaders use to access copyright infringing content. Bit-Torrent is a technology company, creating software, based out of San Francisco, with products that use peer-to-peer protocols for distributed file sharing and device-to-device syncing. Nothing about that is illegal. uTorrent is a client for the Bit-Torrent protocol — nothing about that is illegal either. Calling the technology behind Bit-Torrent “illegal” is no different to calling the internet itself illegal, because both are equally usage agnostic to the data carried across their protocols. It’s like calling a car company “illegal” because their car was used by a completely unassociated individual for a ram-raid on a shop or an ATM. There is absolutely no doubt that the Bit-Torrent protocol is used for illegitimate file sharing, but that does not implicate Bit-Torrent or uTorrent in any way.

The report uses the word “illegal” 173 times throughout its 84 pages.

What is “illegal” downloading, though? A larger problem is that the report does not adequately distinguish how the survey and its analysis determine what constitutes “illegal” copyright infringement. The survey asked participants which proportion of their online content access they thought to be “illegal” or “legal”, defining payment as whether they personally purchased content as a one-off or subscription and whether participants thought their access was legal or illegal. The report even says that the public surveyed were not confident whether they were accessing content through “legal” or “illegal” means through the internet. It goes on to say:

It should be noted that a large proportion of the Australian public are not confident they know what is legal and what is illegal in terms of downloading, streaming/accessing and sharing content through the internet (see Chapter 6.5). Therefore, in addition to some people being reluctant to admit to engaging in illegal activities, some people may not be aware that what they are doing is necessarily illegal, and hence the level of illegal activity may be under-reported. (Emphasis ours.)

[Department of Communications]