Copyright has been firmly back on the agenda in recent months. We’ve seen the Australian Law Reform Commission (ALRC) release its report on copyright which recommended that Australia adopt a “fair use” exception to copyright infringement.
Yet we’ve also seen the Attorney General, George Brandis, get more exercised about copyright piracy this month, and pledge to do something to address it:
Australia already has a robust legal framework for the protection of copyright, but despite an extensive menu of criminal offences and civil wrongs applicable under copyright law, still the problems of piracy and unauthorised continue to rear their heads.
I and other observers of the debate on copyright reform believe Brandis' comments regarding copyright piracy have been somewhat mysterious.
Questions of piracy were outside the ALRC’s terms of reference for its copyright report, and there has not been any other impartial evidence to suggest that copyright piracy is rampant in Australia and is a priority for law reform along the lines Brandis is suggesting.
Round up the pirate hunters
The approach Brandis is following to deal with copyright piracy so far seems to involve encouraging internet service providers (ISPs) Telstra, Optus and iiNet to negotiate with the “content industry” such as large corporate copyright holders from music, film and publishing.
The aim is to produce a voluntary industry code to address any customers of the ISPs illegally downloading and sharing copyrighted content.
This code could include ISPs sending out warning notices to their customers for alleged illegal activity and possibly blocking websites that host infringing material.
Interestingly enough, in the wake of the 2011 decision in the iiNet case, ISPs and large content providers already engaged in similar talks, which eventually broke down so nothing came of them in the end.
Tellingly, important research by Monash law academic Rebecca Giblin of similar anti-piracy schemes elsewhere in the world actually suggest that they have not been particularly effective in achieving their aims of reducing illegal downloading and encouraging legal access to content.
So why is Brandis embarking on this copyright crusade?
One answer to this question might lie in the content industries having close channels of communication with the Attorney General’s Department.
Emails from the Australian Screen Association (the main film industry lobby group in Australia) to the department obtained via a Freedom of Information request show the persistence of this group in providing information to the Attorney General regarding copyright piracy.
Furthermore, other content industry representatives have also been vocal in the press regarding Australians' piracy, with Village Roadshow co-executive chairman Graham Burke even going as far as to say that “Australia is probably the worst country in the world for pirating movies”.
Is Australia really a big pirating nation?
But rigorous impartial evidence is very much lacking from this debate as to the extent to which Australians are “pirating” content and whether this is indeed having the debilitating effect on creation and innovation in Australian society that seems to be implied by the entertainment industry.
Research from the Australian Home Entertainment Distributors Association, while also an industry body, paints a different picture.
They suggest that the market for digital film and television sales in Australia is actually growing, and Australians are “among the most avid consumers of legal content”.
Nevertheless, the head of the Association also laments the lost sales due to piracy. Perhaps though a better option to recoup those lost sales, rather than campaigning for new laws that may be totally ineffective like their predecessors in other countries, would be to heed some of the conclusions of last year’s Parliamentary IT Pricing Review.
This report found that Australians were paying sometimes a huge amount more than their counterparts in the US and the UK for the same copyrighted content and software goods, known as the “Australia tax”. This premium was not justified by higher costs of doing business here.
Aside from paying over the odds for these products, Australians are also often subject to later release dates for films and TV series compared to elsewhere in the world, for no obvious reason.
Surely, if there really is a problem with piracy in Australia, one way to solve it would be to address these two issues first (the higher prices Australians pay for content and the delay in releasing films and TV series here) by providing Australians with legal and convenient ways to view content at reasonable prices.
Otherwise, the lack of hard, unbiased research driving this debate on piracy, as well as the privileged access to the Attorney General that entertainment industry lobbyists seem to have, does not bode well for robust, evidence-based policy being adopted in the near future.