Monday, November 30th, 2020

Digital Piracy reform on the Government’s Agenda

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The time has come for action against digital pirates and it now seems that the Australian Government is willing to listen and more importantly help. A report in the Australian newspaper on Wednesday confirmed that the Commonwealth Attorney-General’s Department has arranged a high level meeting next month with industry stakeholders to discuss potential new copyright laws in order to stop digital piracy.

A spokesperson for Attorney-General Robert McClelland told the Australian,

“This meeting has been convened by the secretary of the Attorney-General’s Department to gauge the views of key stakeholders with a view to advising government on the current state of play and stakeholder views.”

The news of new talks between industry stakeholders and the Government follows the recent High Court of Australia’s decision to grant film studios the right to appeal the Full Federal Court’s decision in Roadshow v iiNet. As reported by this website film studios and the Seven Network commenced legal proceedings in the Federal Court against Australia’s #2 DSL Internet Service Provider, iiNet. The question before the Federal Court in the original proceedings was whether iiNet had “authorised” the infringement of copyright by its users downloading, via BitTorrent software, 86 films of the Applicants without an appropriate copyright licence. Justice Cowdroy at first instance held iiNet was not liable because:

  1. The copyright infringements were by the means of the BitTorrent system and not iiNet’s provision of Internet services;
  2. iiNet did not have a relevant power to prevent the infringements occurring; and
  3. iiNet did not sanction, approve or countenance copyright infringement.

In response the film studios appealed the decision but the Full Federal Court dismissed the appeal with a 2:1 majority. The stage is now set for the High Court to make the final ruling on whether iiNet had authorised its users’ copyright infringement.

Companies in Australia whose copyright is infringed currently have several choices. Firstly, they can suffer the consequences of continued digital piracy and take no action. Secondly, they can litigate against the primary infringer or thirdly, they can target intermediaries including ISPs or developers or promoters of software that enables the unlicensed downloading of content. Faced with the onslaught of digital piracy and in the absence of any other cost effective remedy, film studios and the Seven Network chose to launch action against iiNet to enforce their intellectual property rights. The iiNet cases have exposed serious flaws in the regulatory regime that fails to adequately protect copyright owners from digital piracy. In light of this it is now pertinent that key stakeholders meet with each other and the Government to discuss possible strategies to stop digital piracy.

In the United Kingdom, France and New Zealand there has been the adoption in recent years of stronger digital piracy legislation that imposes harsher sanctions on primary infringers (the users) and on Internet Intermediaries who fail to act if their users’ infringe the copyright of content owners.

The Australian Government is currently in the midst of its Convergence Review. Despite the comprehensive nature of the review in examining the regulatory environment for media and content, the review fails to provide scope for an in-depth analysis of Australia’s intellectual property protection regime and in particular the need to revisit and revise the Government’s policies and laws towards reducing digital piracy. The Review outlines 10 Key Principles which guide the Convergence Review Committee’s deliberations on a new policy framework for media and communication services. The 10 Principles are as follows:

  1. Citizens and organisations should be able to communicate freely, and where regulation is required, it should be the minimum needed to achieve a clear public purpose;
  2. Australians should have access to and opportunities for participation in a diverse mix of services, voices, views and information;
  3. The communications and media market should be innovative and competitive, while balancing outcomes in the interest of the Australian public;
  4. Australians should have access to Australian content that reflects and contributes to the development of national and cultural identity;
  5. Local and Australian content should be sourced from a dynamic domestic content production industry;
  6. Australians should have access to news and information of relevance to their local communities, including locally-generated content;
  7. Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public;
  8. Australians should have access to the broadest possible range of content across platforms, services and devices;
  9. Service providers should provide the maximum transparency for consumers regarding their service and how they are delivered; and
  10. The government should seek to maximise the overall public benefit derived from the use of spectrum assigned for the delivery of media content and communications services.

The lack of formal Federal Government review of copyright regulation makes it even more important that key industry stakeholders and the Government engage in talks to develop a workable solution to a problem that in 2010 cost the Australian content industries some $900 million.

The Chief Executive Officer of subscription TV giant FOXTEL, Kim Williams AM summed up perfectly the importance of intellectual property to Australia’s economy at this year’s The Australian & Deutsche Bank Business Leaders Forum – The Future of MediaMr Williams AM said,

“Piracy is not cool, theft is not cool…IP [intellectual property] is a fundamental part of our economy going forward. It involves billions of billions of dollars of investments and transactions and must enjoy the same kind of treatment at law as physical products and that keeps me awake at night.”

FOXTEL’s 50% owner TELSTRA has confirmed that they will be attending the meeting organised by the Attorney-General’s Department. A TELSTRA Spokesperson told the Australian,

“We have accepted the invitation to attend the meeting convened by Mr Wilkins of the AGD, and welcome the opportunity to meet with all relevant stakeholders to discuss how we can work together to address this important issue.””We would like to achieve a constructive outcome that appropriately balances the interests of all stakeholders, including ISPs, rights holders and consumers [emphasis added].”

Any new plan to combat digital piracy must balance the various interests of stakeholders.

Stakeholders are ready to talk, the Government is ready to help and the High Court is about to add its opinion on the scope and operation of Australia’s current copyright regime.  Its is now time to begin reforming the regulatory environment in order to protect valuable intellectual property rights of content owners. Digital piracy is tantamount to stealing. Action is needed now to ensure the IP rights of content owners are enforceable, digital piracy stops and as a result a fundamental part of Australia’s current and future economy is protected.

For more analysis on digital piracy, the secondary liability of internet intermediaries both in Australia & globally and possible ways to reduce the problem, please email byron@frostglobal.com.

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