tag:theconversation.com,2011:/au/topics/online-copyright-11842/articlesOnline copyright – The Conversation2023-04-11T14:35:53Ztag:theconversation.com,2011:article/2005072023-04-11T14:35:53Z2023-04-11T14:35:53ZNollywood could see a major boost from Nigeria’s new copyright law - an expert explains why<figure><img src="https://images.theconversation.com/files/519669/original/file-20230405-22-qvwbqt.jpg?ixlib=rb-1.1.0&rect=7%2C44%2C4913%2C3231&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The digital era contributed immensely to the growth of Nollywood, Nigeria's film industry.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">Pius Utomi Ekpei/AFP via Getty Images</a></span></figcaption></figure><p>Nigeria has finally <a href="https://infojustice.org/archives/45182">updated its 2004 copyright law</a>, bringing it into the digital era – where the entertainment industry has been for decades already.</p>
<p>Before the late 1990s, it was difficult even to get telephone services in Nigeria. And it was very expensive for private enterprises to make films. Since then, digital technology has unleashed a multitude of ways to receive information and entertainment. </p>
<p>With the arrival of digital technology, all a filmmaker needed was a simple video recorder and a group of talented creatives. Thus modern Nollywood – the Nigerian film industry – was born.</p>
<p>Nollywood employs <a href="https://www.imf.org/en/Publications/fandd/issues/2021/06/streaming-video-services-flood-emerging-markets-behsudi">more than a million people</a> directly or indirectly, making the sector Nigeria’s second largest employer after agriculture. In 2022, <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,when%20it%20reached%200.3%20percent.">Nollywood’s contribution to Nigeria’s GDP stood at 0.1%</a>. It’s <a href="https://www.theguardian.com/world/2014/apr/10/nigeria-africa-biggest-economy-nollywood">Africa’s most successful film industry</a> and the third largest globally after Hollywood and Bollywood in terms of the number of movies produced <a href="https://www.statista.com/statistics/1186955/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-nigeria/#:%7E:text=Arts%2C%20entertainment%20and%20recreation%20sector,GDP%20in%20Nigeria%202019%2D2022&text=In%20the%20second%20quarter%20of,0.21%20percent%20of%20Nigeria's%20GDP">annually</a>. </p>
<p>But Nigeria’s copyright regime lagged behind the industry’s technological and business developments. The biggest issue was piracy, that it was easy to copy and sell other people’s work without their consent. The courts found themselves with new intellectual property problems to deal with and it was clear a new copyright regime was needed.</p>
<figure class="align-center ">
<img alt="A man looking at some movies in a store filled with shelfs stacked with DVDs." src="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519675/original/file-20230405-23-fw13cr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The new copyright law make provision for the digital rights of Nollywood creatives. Photo by Cristina Aldehuela/AFP via Getty Images.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/customers-look-at-nollywood-movies-in-a-shop-at-idumota-news-photo/1128688331?adppopup=true">from www.gettyimages.com</a></span>
</figcaption>
</figure>
<p>I have spent much of my career <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1390877">researching copyright law in Africa</a> and the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">connection between copyright and the economic growth</a> of Africa’s creative industries – films, fashion, music, literature and others. </p>
<p>I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4228165">written specifically about Nollywood</a>, arguing that it needs a new copyright regime if it is to thrive. And I have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">researched the kind of copyright curriculum</a> that law schools in Nigeria need in order to make the amended copyright law effective in growing its creative industries. My research supports the idea that Nigeria should deliberately include digital copyright regimes in its laws and strengthen the institutions that put them into effect. </p>
<p>And the new copyright law in Nigeria does fill gaps. Nigerians will now have a legal regime that can protect their creativity within the technological space. The new law will be useful to combat online film piracy and loss of revenue from the illegal use of copyrighted works.</p>
<p>The new law has the potential to create stability and predictability in industries like Nollywood. This is a positive step towards a more diversified national economy – and economic growth. </p>
<p>But it will be important to allow the courts to do their job. Trying to settle disputes through the Nigerian Copyright Commission – which is a new option – could complicate and prolong the litigation. That might discourage investment in the creative industry.</p>
<h2>Key benefits of the new law</h2>
<p>Nigeria’s <a href="https://www.adams.africa/africa-general/nigeria-enacts-new-copyright-act/#:%7E:text=Nigeria%20enacts%20Copyright%20Act%2C%202022,the%20Copyright%20Act%20of%202004">new</a> copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops. </p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373358">The law now provides</a> anti-circumvention devices. It is now a copyright infringement to illegally circumvent a computer program, software or a technical protection measure created to protect a copyrighted work. Film piracy is both a criminal offence and a civil wrong, with severe punishment and consequences. This now applies to new forms of online film piracy too. </p>
<p>The new copyright law also includes a “safe harbour” provision which protects Nollywood entrepreneurs from unnecessary legal suits. For example, online service provider business is an emerging technology that requires huge investment and is vulnerable to illegal actions. People upload unauthorised content on an online platform and this can result in lawsuits which affect investors in this sector. The safe harbour comes with responsibility on the part of the online service provider: it must quickly remove unauthorised content and must not benefit financially from it. </p>
<p>The new law gives copyright owners ways to resolve disputes over ownership of online content without necessarily going to court. </p>
<h2>Five other new aspects</h2>
<p>The new law has five more aspects that will help sustain the creative economy and promote access to knowledge and education.</p>
<ol>
<li><p><strong>Alternative dispute resolution system.</strong> This mechanism can be used to settle issues surrounding creative rights within contemporary digital platforms. The process will be organised by the Nigerian Copyright Commission, the regulator. </p></li>
<li><p><strong>Register of works.</strong> Creators are required to register their created works. Although creators of works like Nollywood films automatically own their copyright, the register – if well executed – may help with rights management and be a resource for potential investors in the industry. </p></li>
<li><p><strong>User generated content.</strong> When you take a photo of yourself and upload it on platforms like Facebook, YouTube, Instagram or TikTok, what you have done is upload content on an online service provider. You may have copyright over that content. The new copyright law clearly defines your rights and regulates infringement of such rights. </p></li>
<li><p><strong>Copyright exceptions.</strong> Sometimes a copyrighted work can be used without the copyright owner’s authorisation. The new law seems to take the approach that the public has a right to use a copyrighted work if it’s good for society. For example, anyone can use a copyrighted work for educational purposes – to teach in a classroom, for news reporting, criticism, or parody. People can also use the underlying idea in the copyrighted work (ideas aren’t protected by copyright) to create a new, “derivative” work. </p></li>
<li><p><strong>Copyright management organisation</strong>. Another new aspect is that regulators can appoint more than one copyright management organisation to serve a specific class of creative work. This will potentially further liberalise and democratise creativity. </p></li>
</ol>
<h2>The cautions</h2>
<p>Laws ought to be effective in action. If the new law is to benefit Nollywood and other digital industries, government institutions and policies will need revamping.</p>
<p>The <a href="https://www.eregistration.copyright.gov.ng/">Nigerian Copyright Commission</a> should use its new administrative powers carefully. It should be sensitive to the fact that only the courts can judge disputes of property rights.</p>
<p>The commission must stop licensing only one collective management organisation per creative category. Currently, for example, in the musical works category the commission has granted only one copyright management organisation the licence to collect royalties on behalf of creators. This has resulted in court <a href="https://ssrn.com/abstract=3260555">battles for sole control</a> over royalties. If the commission makes rights management more competitive, there may be less tension in the sector. Creatives should have more choice.</p>
<p>Nigeria will also need to pay more attention to training experts with knowledge of the digital era laws. The <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3989947">university creative and legal curriculum</a> needs reform along with the new law. </p>
<p>If the new law is to benefit Nollywood, it will have to be properly implemented. </p>
<h2>Why this matters</h2>
<p>The updated Nigerian copyright law recognises how a contemporary creative system can encourage investment in the Nigerian film industry.</p><img src="https://counter.theconversation.com/content/200507/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samuel Samiái Andrews. does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nigeria’s president, Muhammadu Buhari, recently signed the copyright law. Its provisions will be beneficial only if it is well implemented.Samuel Samiái Andrews., Professor, University of GondarLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1033742018-09-19T14:35:45Z2018-09-19T14:35:45ZWhy tech giants have little to lose (and lots to win) from new EU copyright law<figure><img src="https://images.theconversation.com/files/237128/original/file-20180919-158243-roiwue.jpg?ixlib=rb-1.1.0&rect=6%2C3%2C2023%2C1180&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Copyright, and copyright laws, will not always match expectations.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/inkninja/8119702305">inkninja</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The new European Union Copyright Directive, <a href="http://www.europarl.europa.eu/news/en/press-room/20180906IPR12103/parliament-adopts-its-position-on-digital-copyright-rules">passed recently by the European parliament</a> after a <a href="https://arstechnica.com/tech-policy/2018/09/european-parliament-approves-copyright-bill-slammed-by-digital-rights-groups/">vociferous campaign</a> both for and against, has been described by its advocates as Europe striking a blow against US tech giants in the battle for control of copyrighted content online. This is painted as a battle about who pays for creative works, culture, and the role and workings of a free press in a world where these “commodities” are exchanged freely on social media and other platforms controlled by giants such as Google and Facebook. </p>
<p>The sense of this battle is found in two articles from the text of the new directive. <a href="https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban">Article 11</a> introduces the “press publishers’ right”, also called the “link tax”. This permits publishing groups such as newspapers and other media to charge online content sharing service providers and platforms – most obviously, Google, Facebook and Twitter – a fee for a licence to link to their content. <a href="https://arstechnica.com/tech-policy/2018/09/an-eu-copyright-bill-could-force-youtube-style-filtering-across-the-web/">Article 13</a> makes online content sharing service providers responsible for the copyright content uploaded by users. Large platforms must implement filters to monitor copyright infringements and obtain licences from music, film and television rights-holders for the use of copyright content where it appears on their services – YouTube and Instagram, for example. This has led to claims that the directive would effectively ban memes, because automated checking of uploads would identify them only as copyright material, rather than allowable “fair use” or “parody”.</p>
<p>Unsurprisingly, publishers and copyright industries across Europe have saluted the new law as a great victory of European culture and free press against the greedy American titans. But it is not this simple. </p>
<h2>First-mover advantage</h2>
<p>When companies like Google and Facebook started their ascent as global players in the mid-2000s, they benefited from a generally favourable legislative framework, made of legislative vacuum and liberal legislation. Thanks to the flexible contours of the <a href="http://copyrightblog.kluweriplaw.com/2016/12/14/american-european-safe-harbours/">“safe harbour” provisions for internet hosting services</a> – which essentially immunises them from any liability for content uploaded by their users – YouTube rapidly became the main channel of distribution of music. Similarly, Facebook and Google News became major distributors of news (whether good, bad or “fake”). </p>
<p>The ascent of these companies was not without hurdles and challenges, including a chequered history of lawsuits from music, film and television companies against content-sharing platforms, and by press publishers <a href="https://cmds.ceu.edu/article/2018-07-03/news-aggregation-and-reform-eu-copyright-law">against news aggregators</a>, which eventually changed the legal contours of the hosting providers’ <a href="http://copyrightblog.kluweriplaw.com/2012/01/31/passive-vs-active-hosting/">safe harbour in the European Union</a>. As a result of these legal disputes, the tech firms have progressively adapted their business models from head-on challenge of copyright norms to adopting a more accommodating attitude towards copyright holders and press publishers. </p>
<p>Google, for example, has entered into various commercial agreements with news agencies and publishers to display content in <a href="https://www.nytimes.com/2013/02/18/technology/a-first-step-on-continent-for-google-on-use-of-content.html">Google News</a> and <a href="https://www.nytimes.com/2010/11/18/business/global/18book.html?_r=1">Google Books</a>. YouTube, a Google subsidiary, has <a href="http://copyrightblog.kluweriplaw.com/2013/04/16/france-youtube-universal-and-sacem-enter-into-a-new-agreement/">entered into revenue-sharing agreements with copyright holders</a> based on a technology called <a href="https://support.google.com/youtube/answer/2797370?hl=en-GB">Content ID</a> that detects, identifies and manages copyright-protected music and video uploaded by users. Facebook has struck similar deals <a href="https://www.theverge.com/2018/3/9/17100454/facebook-warner-music-deal-songs-user-videos-instagram">with major music labels</a> and has a partnership programme <a href="https://www.facebook.com/careers/life/getting-the-scoop-on-the-news-partnerships-team-at-facebook">with news publishers</a>. A large amount of the content we consume today through these platforms is authorised by the copyright owners and generates some revenue for them.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=354&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=354&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=354&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=445&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=445&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237138/original/file-20180919-158222-s56hg4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=445&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It’s a bit more complicated than that.</span>
<span class="attribution"><span class="source">Reddit</span></span>
</figcaption>
</figure>
<h2>A hammer to crack a nut</h2>
<p>So in this respect, what the new EU Copyright Directive now obliges the tech giants to do is largely what they do already. To be sure, it is an open question whether they pay enough for the privilege of making use of (and profiting from) all that content created by others. Admittedly, by obliging tech giants to pay press publishers and to obtain licences with copyright holders, the new directive may reduce their bargaining power with respect to the arrangements they must make with content creators, and therefore lead the copyright holders to increase their revenue share. This small (and largely uncertain) effect has some important consequences.</p>
<p>Take the directive’s article 13, which redefines the safe harbour for content-sharing providers. In effect, platforms like YouTube will be directly responsible for copyright content uploaded by their users (although they will continue to be shielded from direct liability for other wrongs committed by their users, such as defamation or hate speech). If this norm was in place ten or 15 years ago it would have prevented YouTube from becoming what it is today. </p>
<p>But now it is only good news for YouTube. The new directive will have little effect on its current business model (perhaps paying only a little more for contracts with copyright owners), but it will prevent others from challenging established firms’ dominant positions. Costs that for platforms like YouTube or Instagram today represent a small and ultimately insignificant portion of their profits are huge and <a href="https://promarket.org/digital-economy-much-less-competitive-think/">potentially insurmountable barriers for new companies</a> attempting to enter the market.</p>
<p>Only micro or small enterprises and non-commercial platforms – which are excluded from the effects of article 13 – will benefit from the same favourable legislative conditions that Facebook and Google experienced at the beginning of their career. But even these, as soon as they become more than start-ups, will have to operate in the same playing field as established giants – leaving them with no serious prospect of winning a substantial market share, challenging their dominance, or providing an outlet for innovation.</p>
<p>Quite the opposite from what was the intention, the Copyright Directive may ensure the current crop of tech giants retain their dominant position for a long time, possibly forever. Which one could say is not exactly bad news for them, and not exactly a victory for European creativity either.</p><img src="https://counter.theconversation.com/content/103374/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maurizio Borghi is Director of the Centre for Intellectual Property Policy & Management of Bournemouth University. The Centre receives external funding from the Research Council UK, the UK Intellectual Property Office, the European Commission and the European Union Intellectual Property Office. In 2014 Maurizio Borghi has received the Google Faculty Research Award.</span></em></p>In an example of the law of unintended consequences, the Copyright Directive is likely to cement the US tech giants’ grip, rather than provide space for others to grow.Maurizio Borghi, Professor of Law, Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1011622018-08-09T15:15:54Z2018-08-09T15:15:54ZThe rise of cyberlockers: how online piracy is fighting back<figure><img src="https://images.theconversation.com/files/230871/original/file-20180807-191044-1x10haf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/computer-transfer-download-failed-data-stop-474598984">Shutterstock</a></span></figcaption></figure><p>Illegal downloading is on its way out. A <a href="https://www.bbc.co.uk/news/entertainment-arts-45042838">new report</a> released by polling firm YouGov has found that only 10% of people in the UK now use illegal downloads to access music, down from 18% in 2013. And the recently released <a href="https://www.ivir.nl/projects/global-online-piracy-study/">Global online piracy study</a> from the University of Amsterdam argued that entertainment streaming services such as Spotify and Netflix mean that far fewer people are accessing copyright-infringing content.</p>
<p>Despite this, pirated songs, films and TV shows are still widely available online. For example, the Amsterdam study also found that 36% of the UK population has accessed illegal content online in the last year. The shift from downloads to streaming is real but it hasn’t solved all the entertainment industry’s problems because piracy has also shifted in a similar way. A growing fraction of illegal content is now accessed through streaming “cyberlockers”, YouTube-like websites often used to upload and share video content without permission. There has recently been significant growth in their use, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/628704/OCI_-tracker-7th-wave.pdf">with 10% of infringers using cyberlockers in 2017, up from 4% in 2016</a>.</p>
<p>Together with my PhD student Damilola Ibosiola and other colleagues, I <a href="https://arxiv.org/pdf/1804.02679.pdf">recently published research</a> showing that most illegal streaming cyberlocker content is distributed by just a handful of providers, as opposed to the millions of people who used to share files illegally through peer-to-peer downloading software. This might make it easier for law enforcement to contact the host of an illegal file, but it also means that they are up against people with extensive experience in evading detection. As a result, the pirates are constantly fighting back.</p>
<p>Because of this, we wanted to understand how the cyberlockers used by pirates operate, and shed light on this murky domain. We built software to monitor the videos uploaded onto popular cyberlockers, as well as “indexing websites”, which maintain a directory of links to reliable sources of videos on cyberlockers. In total, we identified over 795,000 links.</p>
<h2>How it works</h2>
<p>What we found was truly fascinating, a dynamic ecosystem of competing players, constantly striving to evade detection and being forced to takedown content. This is perhaps not surprising given our observation that these operations were apparently very fragile.</p>
<p>For example, one website we studied was taken offline three months into our measurements. But these kinds of departures were also complimented by various new cyberlocker arrivals. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Accessing illegal online content is still common.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/online-movie-stream-mobile-device-man-728322208?src=8fc66K2izADySXQ6W0pmPA-1-0">Shutterstock</a></span>
</figcaption>
</figure>
<p>All seemed in a constant flux, with links being added and deleted regularly. A total of 55% of cyberlockers saw growth during our measurement period, while 45% saw a decline. But the apparent diversity of cyberlockers may be rather superficial. By examining certain features of the sites to infer potential relationships, we discovered that, in many cases, individual operators were running multiple different websites.</p>
<p>A total of 58% of all videos that we monitored were held by just two major hosting providers, although from the outside they appeared to be dispersed across 15 apparently independent cyberlockers. This meant action against one company could take down a huge chunk of illegal material. </p>
<p>Our guess was that this was largely a product of the cat-and-mouse game played between cyberlockers and copyright enforcers. These enforcers monitor popular websites to identify infringing content, and then use legal notices to request its removal. </p>
<p>We observed cyberlockers use many techniques to fly under the radar of these enforcers. A total of 64% of the sites we studied did not have search features, making it difficult to find content from their front page, and 42% obscured their true content by hiding it among various obscure copyright-free videos.</p>
<p>To get an idea of how successful the copyright enforcers were, we also used data from <a href="https://lumendatabase.org/">Lumen</a>, which records cease and desist letters concerning online content. We were surprised to find that 84% of the notices we monitored were apparently acted upon, with cyberlockers taking down the content. What was less surprising to find was that it usually wasn’t long before the very same content emerged elsewhere (often on the same cyberlocker under a different page).</p>
<p>It seems that online piracy is less of a technical game, and more of a socioeconomic one, with pirates and law enforcers constantly innovating around each other. In most cases, both sides of the debate are driven by financial incentives. It therefore seems likely that the long-term solution will be for the media industry to create new business models that deplete those incentives. Until then, the game will continue.</p><img src="https://counter.theconversation.com/content/101162/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gareth Tyson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Cyberlocker’ illegal streaming sites are in a constant cat-and-mouse struggle with law enforcement.Gareth Tyson, Lecturer in Computer science, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/677092017-03-23T04:37:47Z2017-03-23T04:37:47ZAustralia’s copyright reform could bring millions of books and other reads to the blind<figure><img src="https://images.theconversation.com/files/162100/original/image-20170322-25755-1y5edm2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rule change should make it easier for more copyright works to be made available in Braille.</span> <span class="attribution"><span class="source">Chinnapong/Shutterstock</span></span></figcaption></figure><p>Proposed changes to Australia’s copyright law should make it easier for people to create and distribute versions of copyrighted works that are accessible to people with disabilities. </p>
<p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5832">Copyright Amendment (Disability Access and other Measures) Bill</a> was introduced to Parliament on Wednesday.</p>
<p>If passed, it would enable people with disabilities to access and enjoy books and other material in formats they can use, such as braille, large print or <a href="http://www.daisy.org/daisypedia/daisy-digital-talking-book">DAISY audio</a>.</p>
<p>The Australian Human Rights Commission has long been calling for action to end the “<a href="https://www.humanrights.gov.au/news/stories/australia-can-help-end-world-book-famine">world book famine</a>” – only 5% of books produced in Australia are available in accessible formats. This means that people with vision impairment and other reading disabilities are excluded from a massive proportion of the world’s knowledge and culture.</p>
<p>Under the current law, educational institutions and other organisations can produce accessible copies of books, but the system is slow and expensive. Only a small number of popular books are available, and technical books that people need for work are often out of reach. </p>
<p>Technology should make accessibility much easier, but publishers have been slow to enable assistive technologies. </p>
<p>People with disabilities have long complained that they are not able to take advantage of new technologies such as inbuilt screen reading software on computers and smartphones. </p>
<p>Amazon’s Kindle, for example, used to allow text-to-speech to help blind people read books, but Amazon gave in to publishers’ fears and <a href="https://www.wired.com/2014/12/e-books-for-the-blind-should-be-legal/">allowed them to disable the feature</a>. Apple’s electronic books are much better, but there are still major gaps. </p>
<p><a href="https://eprints.qut.edu.au/78325/">Our research</a> looked at books available through electronic academic databases, and found that most ebook libraries have some features that frustrate full accessibility.</p>
<p>The Copyright Act in its current form does grant statutory licences for copying by institutions that assist people with disabilities, but there are no comprehensive exceptions for individuals. <a href="http://espace.library.uq.edu.au/view/UQ:258758">Research shows</a> that even students in resourced universities have trouble accessing the materials they need to study.</p>
<h2>A fair right for people with disabilities</h2>
<p>The new Bill aims to create a clear right for individuals to copy materials into accessible formats. Critically, this new “fair dealing” exception also allows other people to help out by creating and sharing accessible versions of books and other materials.</p>
<p>This is a major milestone in <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">making copyright law more fair</a>. It implements Australia’s obligations under the <a href="http://www.wipo.int/treaties/en/ip/marrakesh">Marrakesh Treaty</a>, a landmark international agreement designed to <a href="https://eprints.qut.edu.au/61501/">stop copyright getting in the way of accessibility</a>.</p>
<p>The Marrakesh Treaty, once implemented around the world, will enable organisations to <a href="https://theconversation.com/the-marrakesh-treaty-could-bring-the-worlds-books-to-the-blind-27101">share accessible books to the people who need them in other countries</a>. This is an extremely important change as the costs of scanning and making a book accessible are so high that most blind people are denied access to most works.</p>
<p>Once the laws are clarified, the accessibility of books will increase dramatically. Google has been busy digitising the world’s books, and it has <a href="https://theconversation.com/google-books-wins-fair-use-but-australian-copyright-lags-20351">given those books</a> to a charity called <a href="https://www.hathitrust.org/">Hathi Trust</a>. Soon, Hathi Trust will be able to share those books with blind people around the world.</p>
<p>Google’s partnership with Hathi Trust means that blind people will soon be able to access more than 14 million volumes almost overnight. This figure may grow quickly as Google has already digitised more than 30 million books. Very soon, the proportion of accessible books might jump from 5-10% to closer to 30%.</p>
<h2>A missed opportunity</h2>
<p>The Bill also proposes a number of other long awaited updates to Australian copyright law. But one thing the Bill does not do is fix a drafting error that has plagued Australian copyright law for the past decade. </p>
<p>When Australia signed the <a href="http://dfat.gov.au/trade/agreements/ausfta/pages/australia-united-states-fta.aspx">Australia - US Free Trade Agreement</a>, we introduced a system of “notice-and-takedown” that would protect copyright owners. The system provides a way for people to ask online service providers to remove content that infringes copyright.</p>
<p>But the law was poorly drafted. It applied only to a small number of Internet Service Providers (such as Telstra, Optus and iiNet) but not the larger category of search engines and content hosts.</p>
<p>This means it does not apply to giants such as Google and Facebook. It also means that other organisations that host content uploaded by users, such as The Conversation, are also excluded.</p>
<p>These safe harbours provide a shield in case people – outside of the service provider’s control – use their networks to upload content that infringes any copyright laws. </p>
<p>The reason they are so critical is that it is often prohibitively expensive for the companies that host internet content to check all content before a user uploads it.</p>
<p>But the safe harbours aren’t free. The quid pro quo is that the ISP must introduce a notice and takedown scheme. This is one of the few effective mechanisms to get content removed from the internet, and has been a crucial part of protecting the rights of publishers and authors online. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/XnvXIuqpiwk?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Professor Kim Weatherall explains the drafting error in Australia’s copyright safe harbours.</span></figcaption>
</figure>
<p>When the new Bill was first drafted, it was set to fix the drafting error that excludes content hosts, search engines, universities and other organisations from the scheme. But the Bill introduced this week contains no such fix.</p>
<p>The extension of these safe harbours has become highly politicised, with major rightsholders warning that it <a href="https://torrentfreak.com/google-with-no-fair-use-its-more-difficult-to-innovate-170223/">looked like a win for Google and Facebook</a>.</p>
<p>The past two decades of the internet in the United States have shown how critical the safe harbours are to all developers, <a href="http://americanassembly.org/publications/notice-and-takedown-everyday-practice">both large and small</a>. They reduce uncertainty and allow innovation in the ways that people access content. </p>
<p>So while this new Bill is important, it is also a missed opportunity. The drafting error in Australia’s copyright safe harbours means that neither tech companies or authors and publishers are well protected.</p>
<hr>
<p><em>Tess Van Geelen, a Research Assistant at the Faculty of Law, Queensland University of Technology, contributed to this article.</em></p><img src="https://counter.theconversation.com/content/67709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance.
Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p>A proposed tweak to the copyright laws should make it easier to reversion protected works for people with disabilities.Nicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/704732016-12-15T06:36:30Z2016-12-15T06:36:30ZBlocking access to illegal file-share websites won’t stop illegal downloading<p>The Australian Federal Court <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1503">ruled today</a> that TPG, Optus, Telstra and other internet service providers (ISPs) must take “reasonable steps” to <a href="https://www.cnet.com/au/news/australian-isps-block-the-pirate-bay-rights-holders-pay-village-roadshow-foxtel-telstra-tpg/">stop customers accessing</a> file-sharing websites The Pirate Bay, IsoHunt, TorrentHound and Torrentz. </p>
<p>In total, Australian ISPs must block access to 61 domains registered to these four websites, or to the IP addresses specifically listed in the orders. </p>
<p>The court also ordered that addresses belonging to SolarMovie be blocked, even though it is no longer operational.</p>
<p>Importantly, the court refused a request that the ISPs be required to ban new domains or IP addresses as they pop up (the “<a href="https://en.oxforddictionaries.com/definition/us/whack-a-mole">whack-a-mole</a>” problem). This is a win for due process, because it ensures that the court maintains control over the process. </p>
<p>But it also shows that this is largely a symbolic victory. The experience from overseas shows how easy it is for a site such as The Pirate Bay to <a href="https://theconversation.com/blocking-piracy-websites-is-bad-for-australias-digital-future-34418">change its address</a> faster than courts can keep up.</p>
<p>Consumers can also easily use <a href="https://theconversation.com/unfazed-by-court-cases-downloaders-continue-but-turn-to-hiding-their-tracks-40120">VPNs and proxies</a> to access the sites through private and secure connections.</p>
<p>The court ordered ISPs to block access within 15 business days of its decision. After this time, any user trying to access one of the blocked domains will be redirected to a webpage established by copyright owners, which will inform them that the domain has been blocked because of copyright infringement.</p>
<p>The Federal Court’s orders will be in effect for three years. During that time, if The Pirate Bay or any of the other websites operates from a different domain name, IP address or URL than those listed in the order, copyrights owners may apply to have the order extended to the site’s new location.</p>
<h2>First use of new powers to block websites</h2>
<p>This case is the first use of a new law, introduced in 2015, that allows copyright owners to apply to the Federal Court for an order requiring ISPs to block access to foreign-hosted websites. </p>
<p>Under the new provision, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115a.html">section 115A</a>, copyright owners must show that the foreign-hosted website has the primary purpose of facilitating copyright infringement.</p>
<p>If a court order is granted, the ISP must take reasonable steps to disable access to the online location. The Federal Court has further powers make orders about the technical means by which the ISP must disable access.</p>
<p>These laws are becoming more common around the world, as major copyright owners try to find legal solutions to copyright infringement. </p>
<p>An important concern about the Australian law is that it is potentially very broad in scope. Section 115A empowers the Federal Court to require an ISP to block access to a foreign website whose “primary purpose” is to “facilitate” copyright infringement. But these words are not defined in the Act or in existing case law. </p>
<p>This uncertainty creates a risk that section 115A may be applied sweepingly, with potentially serious consequences for internet users. </p>
<p>One of the wins for consumers in today’s decision is that the Court has signalled that it will keep a close watch on future applications to extend these orders.</p>
<h2>Requiring ISPs to be copyright police</h2>
<p>Australian ISPs have been under a lot of pressure over the past few years to help copyright owners police their rights. </p>
<p>In the <a href="https://theconversation.com/iinets-hollywood-ending-what-does-its-court-victory-mean-for-copyright-law-6577">iiNet trial</a>, the High Court found that iiNet had no obligation to terminate the internet access of subscribers suspected of using BitTorrent to download and share copyrighted files.</p>
<p>After iiNet, the failed “<a href="https://theconversation.com/explainer-australias-three-strikes-plan-to-curb-illegal-downloads-37967">three-strikes</a>” agreement would have seen ISPs <a href="https://theconversation.com/forced-negotiations-and-industry-codes-wont-stop-illegal-downloads-35330">pass on allegations of infringement</a> to their users. But in the end, nobody could agree about who would pay for the scheme.</p>
<p>iiNet was again before the courts last year in <a href="https://theconversation.com/the-dallas-buyers-club-case-is-over-and-the-precedent-is-good-news-for-all-australians-54612">the Dallas Buyers Club case</a>, in which it successfully fought off “<a href="https://theconversation.com/what-now-after-the-dallas-buyers-club-pirate-claim-is-rejected-as-surreal-46133">surreal</a>” demands to hand over the contact details of its subscribers who were alleged to have downloaded the film over BitTorrent.</p>
<p>Now that iiNet has been <a href="http://www.itnews.com.au/news/tpgs-iinet-takeover-is-bittersweet-for-michael-malone-408176">bought by TPG</a>, there are fewer Australian ISPs with the money and political will to stand up for their users’ interests. The ISPs in this case, as with the three strikes agreement, seemed mostly concerned about who should bear the costs of the blocking scheme. </p>
<p>Because this is a case between large copyright owners and ISPs, the interests of consumers have not been well represented. </p>
<h2>Will this stop illegal downloading?</h2>
<p>This ruling will likely have limited impact on copyright infringement in Australia. </p>
<p>Consumer research shows that illegal downloading occurs because consumers <a href="https://eprints.qut.edu.au/75933/">lack cheap, easy, accessible channels</a> to access content legitimately.</p>
<p>The most recent example is the release of <a href="https://theconversation.com/amazons-new-grand-tour-series-could-be-the-next-illegal-download-victim-68141">The Grand Tour series</a> exclusively on Amazon’s pay-to-view service.</p>
<p>The program was illegally downloaded en masse beating even HBO’s Game of Thrones to become the most pirated show, <a href="http://www.dailymail.co.uk/tvshowbiz/article-4021280/Grand-Theft-Auto-Clarkson-s-TV-comeback-illegally-downloaded-history-viewers-pirating-episode-7-9million-times.html">reports the Daily Mail</a>. Consumers blame rights-holders for failing to meet market demand, and this encourages a social norm that infringing copyright, while illegal, is not morally wrong. </p>
<p>Some of our preliminary research indicates that exclusive licensing strategies (like Kanye West’s initial release of Life of Pablo <a href="https://techcrunch.com/2016/02/16/kanye-west-says-his-new-album-wont-be-on-itunes-or-apple-music/">only on Tidal</a>) are also likely to increase the <a href="https://digitalsocialcontract.net/do-exclusive-releases-drive-increases-in-copyright-infringement-f0ebc21bdf57#.rynbmbg2v">willingness of consumers to infringe copyright</a>.</p>
<p>The problem is that constraining access to illegal content through site-blocking does nothing to address the core motivations for infringement. </p>
<p>Most Australians want to do the right thing – and generally, they are willing to pay for the content they want. This is evident from the large numbers of <a href="https://www.choice.com.au/electronics-and-technology/internet/internet-privacy-and-safety/articles/bypass-geo-blocking">Australians who circumvent geo-blocking</a> in order to access the US versions of paid services such as Netflix and iTunes. </p>
<p>But without legitimate means of access, consumers feel they have no choice but to download the content illegally. </p>
<h2>What is the solution?</h2>
<p>Site-blocking is not the solution to illegal downloading. In the 17 years since Napster, one of the first file-sharing services, punitive legal responses are yet to be proven effective at reducing rates of infringement.</p>
<p>This experience suggests that <a href="https://theconversation.com/new-copyright-laws-are-not-the-answer-to-illegal-downloads-9007">stricter copyright laws</a> are not the most effective way to address copyright infringement.</p>
<p>Instead of investing resources into legal proceedings, we suggest that rights-holders should invest in innovative platforms that provide consumers with <a href="https://eprints.qut.edu.au/58818/">greater access to content in a timely manner at a fair price</a>.</p><img src="https://counter.theconversation.com/content/70473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kylie Pappalardo leads research projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance (ADA). </span></em></p><p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance. Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p><p class="fine-print"><em><span>Paula Dootson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A court has ruled that internet service providers in Australia should block access to some illegal file-sharing websites. But is there a better way to beat the priates?Paula Dootson, Senior Research Fellow; PwC Chair in Digital Economy, Queensland University of TechnologyKylie Pappalardo, Lecturer, School of Law, Queensland University of TechnologyNicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/557122016-03-16T04:32:07Z2016-03-16T04:32:07ZIs it piracy? How students access academic resources<figure><img src="https://images.theconversation.com/files/113693/original/image-20160303-9481-14nqe1l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many students don't consider downloading textbooks to be piracy.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Academic textbooks are <a href="http://mg.co.za/article/2014-10-03-students-hurt-by-pricey-textbooks">expensive</a> and the cost of textbooks globally has continued <a href="http://www.aei.org/publication/the-new-era-of-the-400-college-textbook-which-is-part-of-the-unsustainable-higher-education-bubble/">to rise</a> alarmingly even as other educational resources have become relatively cheaper. For students, <a href="https://wiki.creativecommons.org/wiki/What_is_OER%3F">open educational resources</a> should make more sense – certainly financially. </p>
<p>But, globally, the uptake of such resources <a href="http://repositorium.sdum.uminho.pt/bitstream/1822/33478/1/PA_2014ECEL%20CopenhagueDinamarca%28Scopus%29.pdf">is low</a>. There are not nearly enough relevant local open-source textbooks in countries like South Africa, where I work at a university. Where they do exist, academics and students barely know about them.</p>
<p>So how do students access the resources they need? We investigated this as part of a larger research project across six countries: Argentina, Brazil, India, Poland, South Africa and the US. How do students access resources like books? Do they consider copyright and what do they think about it? Do they pirate learning materials? How do they make sense of what they do? </p>
<p>This study concentrated on students at one of South Africa’s top research-intensive universities. We compiled a survey that was answered by 1,001 students and conducted six focus groups with students across three professional disciplines. These disciplines were chosen because students were likely to be prescribed textbooks. </p>
<h2>What we found</h2>
<p>Here are a few key findings from the survey:</p>
<ul>
<li><p>students are accessing learning resources in both print and digital forms – it’s not a case of “either/or”;</p></li>
<li><p>they are accessing these resources both legally and illegally without necessarily knowing the difference. Many gave contradictory answers when asked what percentage of their resources were downloaded legally and illegally; and</p></li>
<li><p>notably, only a fifth of students said that all their resources were legally obtained. The comment “we all pirate” was made several times.</p></li>
</ul>
<p>It also emerged that accessing learning resources through a variety of sites requires a certain measure of expertise. Students admire their peers who know where to ferret out such resources, and such knowledge is unevenly spread. In this sense the notion of a homogenous student body whose members are all natural <a href="http://edition.cnn.com/2012/12/04/business/digital-native-prensky/">“digital natives”</a> is challenged. </p>
<h2>Principled pragmatism</h2>
<p>Another interesting part of the study was what it revealed about students’ attitudes to their own practices and actions. Many made a joke of their piracy or distanced themselves in an amused fashion by shifting responsibility to others or to the technology itself. For instance, some joked:</p>
<blockquote>
<p>It’s Google’s fault.</p>
</blockquote>
<p>They also displayed a matter-of-fact pragmatism. For many, it is a matter of principle, with one saying: “Is it unethical to want to be educated or is it unethical to charge so much [for textbooks]?” </p>
<p>Others believe that they are doing the right thing: “… even though in my head I know it’s wrong, it’s just a technical thing. Substantively speaking, it’s the right thing to do,” one explained. Another said: “I am not worried about the consequences of illegal downloading. [I’m] worried about graduating.”</p>
<p>The respondents also made a distinction between downloading textbooks and other media forms, particularly music and books. They consider the educational aspect central and feel the pursuit of education justifies their actions. As one said: “It’s about access to education: it is huge! It’s the future of our country.”</p>
<p>An important distinction was also made between plagiarism and copyright. Plagiarism was considered unethical and risky, while copyright appeared to be less of an issue. Said one student: “Copyright – it does not even seem like an issue any more … I copy everything … But it almost seems like it isn’t copyrighted, it almost seems like it’s free for everyone.”</p>
<p>There was also a glimmer of an alternative perspective. Some students acknowledged the <a href="https://www.oercommons.org/">existence</a> and value of open, free content, but did not know where to access it. They also said more of it is needed.</p>
<h2>A grey zone</h2>
<p>These quotes are just a taster. The students’ voices are articulate on matters of principle, plagiarism, piracy and access to textbooks and other academic resources. They raise critical issues for new models of publishing, for digital literacies and for open scholarship.</p>
<p>Through the literature review and the findings of this study, it is clear that there is a grey zone in the access of learning and academic resources that is now simply part of normal life in a new communication and information order.</p>
<p><em>The full paper, “Student Practices in Copyright Culture: Accessing Learning Resources” is in press in Learning Media and Technology and is now online <a href="http://dx.doi.org/10.1080/17439884.2016.1160928">here</a>. The manuscript is <a href="https://goo.gl/9BhkNF">also available</a>. This article was adapted from <a href="http://lauraczerniewicz.co.za/">a post</a> on the author’s personal blog.</em></p><img src="https://counter.theconversation.com/content/55712/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Czerniewicz receives funding from the National Research Foundation and the International Development Research Centre</span></em></p>When it comes to accessing online learning materials, university students don’t think much about whether their downloads might amount to piracy or copyright infringement.Laura Czerniewicz, Associate Professor, Centre for Innovation in Learning and Teaching, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/504842015-11-12T11:16:42Z2015-11-12T11:16:42ZNo, the EU is not going to make hyperlinks illegal<figure><img src="https://images.theconversation.com/files/101691/original/image-20151112-9388-u1xs8v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Any change that affects the web, affect people.</span> <span class="attribution"><span class="source">Arthimedes/shutterstock.com</span></span></figcaption></figure><p>You may have read that the European Commission intends to <a href="http://www.computing.co.uk/ctg/news/2433868/eu-considers-outlawing-web-links-unless-you-check-them-with-your-lawyers-first">prevent hyperlinks to copyrighted material</a>. The good news is that this isn’t true, but the bad news is that there is a real proposal to change copyright law that could change how we use hyperlinks – the bedrock of the world wide web.</p>
<p>How does the humble hyperlink fit into copyright law? Back in 1996 the World Intellectual Property Organisation <a href="http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295166">approved a treaty</a> designed to bring copyright law in line with the latest technological developments such as the internet. This included a newly devised <a href="http://www.ifpi.org/content/library/wipo-treaties-making-available-right.pdf">right of communication to the public</a>, granting copyright owners the right to decide the time and manner in which they made their content available to the public. The idea was to allow rights holders to stop others from making infringing copies of their works available online.</p>
<p>In the years since, courts around the world have interpreted this right as a means to stop online copyright infringement, as it was intended. But some have begun to interpret the right too broadly, arguing that any hyperlink to copyrighted material – not just copies of the material – posted by someone other than the creator is a “communication to the public” and so could be considered breach of copyright.</p>
<p>This doesn’t just refer to creative works like films, music or literature. Practically everything is someone’s copyright unless otherwise excluded, which means that under the strictest interpretation, linking to any website containing any text or imagery would be a copyright infringement.</p>
<p>Some creators have gone to court making the case for this interpretation, but thankfully the courts have tended to take a much narrower view – recognising quite rightly that any restriction on hyperlinking would seriously undermine how the world wide web works. For example, in the landmark case of <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=147847&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=58394">Svensson v Retriever Sverige</a>, the Court of Justice of the European Union decided that if the content had been made available to the public already, then providing a web link even without the permission of the author could not amount to copyright infringement. Other cases have helped to clarify this reading, for example <a href="http://www.technollama.co.uk/european-court-decides-about-linking-to-infringing-materials-or-does-it">C More</a> and <a href="http://curia.europa.eu/juris/liste.jsf?num=C-348/13">BestWater</a>.</p>
<h2>Repackaging content</h2>
<p>However, following the leak of a European Commission <a href="https://drive.google.com/file/d/0B6d07lh0nNGNaXFzUFBPaE0tY0E/view">draft proposal</a>, some have <a href="https://juliareda.eu/2015/11/ancillary-copyright-2-0-the-european-commission-is-preparing-a-frontal-attack-on-the-hyperlink/">raised the alarm</a> that things are about to change for the worst.</p>
<p>According to the leaked draft, copyright holders are concerned about their content being monetised by others, without licensing, through content aggregation. This is where a rights holder or creator releases their own content online, which is then aggregated by a third party, re-packaged and re-sold. </p>
<p>Under the existing interpretation of the right of communication to the public, if a work has been made available online, linking to it does not expose it to new audiences, so the right remains intact and linking is not an infringement. But the commission proposes to overhaul these rules in order to harmonise them across the EU now that some member states have tried to solve this issue on their own.</p>
<p>For example Spain introduced a disastrous “<a href="https://www.techdirt.com/articles/20150725/14510131761/study-spains-google-tax-news-shows-how-much-damage-it-has-done.shtml">Google Tax</a>” law, which forced news aggregators such as Google News to pay royalties if they used content from Spanish publishers. This led Google to simply <a href="http://www.theguardian.com/world/2014/dec/16/google-news-spain-publishing-fees-internet">stop using Spanish media</a>, meaning publishers were hit by decreased readership and advertising revenue. News media in Germany also pressed for a change of law to prevent this, which <a href="http://www.dw.com/en/german-publishers-vs-google/a-18030444">similarly backfired</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=473&fit=crop&dpr=1 754w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=473&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/101693/original/image-20151112-9379-4yec17.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=473&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Spanish media hit by ‘Google Tax’ law.</span>
<span class="attribution"><span class="source">Google.com</span></span>
</figcaption>
</figure>
<h2>The web must be protected</h2>
<p>So I’m happy to report that hyperlinking without permission is not about to be made illegal, and many reports that are likely to surface in the following weeks are exaggerated. But there is still place for concern.</p>
<p>Judging by the leaked draft, the commission seems intent on overhauling the right of communication to the public in a way that could still affect how the web works by making it more difficult to aggregate content automatically without permission. This would affect commercial sites that rely on bringing together data from various sources and re-packaging them for a different audiences. This of course would affect sites like Google News, but there are many other sites that aggregate data in this way, for example companies that specialise in providing targeted market intelligence to tailored audiences. Any sort of commercial scale content management would become far more difficult to operate.</p>
<p>In my view the system is not currently broken, and there is little justification to change the law and bring about a more strict interpretation of the right. On the contrary, evidence from places such as Spain indicates that it could have considerably damaging effects on small and medium-sized publishers. The Google Tax in Spain reportedly <a href="http://arstechnica.co.uk/tech-policy/2015/07/new-study-shows-spains-google-tax-has-been-a-disaster-for-publishers/">costs Spanish publishers €10m a year</a> as a result of income lost through fewer visitors.</p>
<p>The worst-case scenario would be for the wrong approach adopted in Spain and Germany to become the blueprint applied to the rest of the EU under the pretence of harmonisation. Perhaps the commission should turn the Court of Justice interpretation in the landmark Svensson case into law and settle the matter once and for all, instead of pandering to copyright holders when they turn up with begging bowls demanding a change in the law without any evidence change is needed.</p><img src="https://counter.theconversation.com/content/50484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andres Guadamuz is affiliated with Creative Commons and the Open Rights Group. He has received funding from the Arts and Humanities Research Council and the World Intellectual Property Organization. </span></em></p>A treaty that allowed copyright owners to decide how and when their content was made available to the public has been interpreted too broadly by some.Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/493632015-10-26T03:20:10Z2015-10-26T03:20:10ZHow to protect authors after Google Books wins its ‘fair use’ case, again<figure><img src="https://images.theconversation.com/files/99589/original/image-20151026-18443-w4529k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How to deal with copyright when books are digitised.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/danielygo/5393995893/">Flickr/Daniel Go</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Google’s efforts to scan millions of books for an online library have passed another legal hurdle with the United States appeal court <a href="http://www.ca2.uscourts.gov/decisions/isysquery/7cafee30-7143-4e7b-b3b1-132f5bc66754/2/doc/13-4829_opn.pdf">agreeing</a> earlier this month that the search-giant’s <a href="https://books.google.com/">Google Books</a> project does not violate copyright law.</p>
<p>The appeal judges’ ruling supports an <a href="https://theconversation.com/google-books-wins-fair-use-but-australian-copyright-lags-20351">earlier district court ruling</a> two years ago. The case was brought by the Authors Guild, which argued that Google’s initiative constituted copyright infringement and could deprive authors of revenue.</p>
<p>But Google has successfully argued that its efforts could actually boost sales by making the text of books searchable, making it easier for people to find published works. </p>
<p>This latest outcome came without much surprise in the US, and the ruling is consistent with the earlier court rulings on fair use. The Authors Guild <a href="https://www.authorsguild.org/industry-advocacy/2nd-circuit-leaves-authors-high-and-dry/">plans to appeal</a> the case before the US Supreme Court but it is unlikely that it would succeed.</p>
<h2>Google Books and Australia</h2>
<p>The Google Books decision is based on a so called “<a href="http://www.copyright.gov/title17/92chap1.html#107">fair use</a>” doctrine which means that everyone can use copyrighted works free as long as the use falls under a particular definition of “fair”, including for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. But such broad and flexible doctrine does not exist in Australia or in most other countries, including Europe. </p>
<p>Instead, Australian copyright law contains narrower and more specific “<a href="http://www.alrc.gov.au/publications/7-fair-dealing/current-law">fair dealing</a>” exceptions as well as a few even more narrowly defined specific copyright exceptions.</p>
<p>It is unlikely that the Google Books project would fall under any of these exceptions. This means that if Google is sued in Australia for the same Google Books project, it is likely to lose the battle. Due to much stricter European copyright laws, a few years ago Google lost a case on <a href="http://www.cnet.com/news/google-loses-french-copyright-case/">Google Books in France</a>. </p>
<p>On the other hand, Australian laws are more flexible than French ones and Australian courts may be as well able to find in favour Google. In short: the legal situation of Google Book still remains uncertain in Australia.</p>
<h2>How Google Books works</h2>
<p>It is worth clarifying here that not everything that can be found on Google Books website was digitised and made accessible by Google for free and without the permission from the copyright holders. </p>
<p>If you can access chapters from a book, it means that Google has got permission from the publisher of the book to do so (and maybe agreed to remunerate the publisher – hence the author(s) – for this too). </p>
<p>It is only when Google does not have an agreement with the publisher, it takes a risk to digitise the book but then only show snippets of the text. This can be a few lines or a short paragraph where the search terms can be seen.</p>
<p>The US appeal court’s decision on Google Books confirmed that the use of snippets (but not chapters or full books) is fair use.</p>
<p>Google Books is an innovative and useful service but the question is whether Google should pay authors and publishers for its use of their work. </p>
<p>The Australian Law Reform Commission (ALRC) <a href="http://www.gizmodo.com.au/2014/02/australia-should-add-fair-use-to-copyright-laws-says-law-reform-commission/">proposed</a> last year that Australia follow the US and introduces a fair use doctrine.</p>
<p>Accepting fair use in Australia would mean that Google is free to digitise all Australian books for free, put the text in its search engine and allow users to view at least snippets from the books. </p>
<p>But Australian <a href="http://www.alrc.gov.au/publications/4-case-fair-use-australia/arguments-against-fair-use-australia">authors and publishers opposed strongly</a>. </p>
<p>Australian authors argue that fair use would further worsen their financial situation that is <a href="http://www.smh.com.au/entertainment/books/australian-authors-earn-only-12900-from-their-writing-a-new-report-says-20151006-gk2ft4.html">already rather miserable</a>. As a result, government has not shown any signs in taking up this proposal. </p>
<p>It is true that fair use doctrine has its own risks. For many it looks open, flexible and seems to welcome innovative services such as Google Books. On the other hand, it creates even more uncertainty for those who want to rely on it.</p>
<p>What use is fair? Each particular case needs to be checked in court, but Australian courts do not have years of experience in applying fair use, as US courts do. </p>
<h2>Alternatives to fair use</h2>
<p>If fair use is not a perfect solution, what could be a compromise? This is a question with no easy answer.</p>
<p>Instead of fair use, European academics <a href="http://www.copyrightcode.eu/index.php?websiteid=3">suggest</a> reviewing the existing copyright exceptions and adding one broader exception that could apply in “emergency” situations such as Google Books case. </p>
<p>The ALRC also suggested, in its <a href="http://www.alrc.gov.au/publications/copyright-report-122">report last year</a>, an alternative to fair use; the consolidation and expansion of existing fair dealing exceptions. Maybe this could be a starting point for a discussion?</p>
<p>One of the problems Google Books faced was the difficulty in finding all the copyright holders of a work and signing a contract with each of them. The Google Book Settlement was meant to ensure that all copyright holders whose books were used in Google Books were remunerated. </p>
<p>This was proposed by Google but eventually <a href="http://digitalpublishingaustralia.org.au/2012/07/20/what-ever-happened-to-the-google-book-settlement/">rejected by the US court</a>. </p>
<p>Wouldn’t it make sense to create licensing solutions that would make it easier for such projects as Google Books to get licenses and pay fees for millions of authors and publishers? Authors would then get paid and the global service would stay running for all to use.</p><img src="https://counter.theconversation.com/content/49363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rita Matulionyte does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Google has won again in its efforts to create a searchable digital library of books. But many author groups still believe the project infringes their copyright.Rita Matulionyte, Lecturer in Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/465572015-08-28T04:07:14Z2015-08-28T04:07:14ZOpen access is not free. Someone is doing the work. Someone is paying<figure><img src="https://images.theconversation.com/files/93062/original/image-20150826-15397-p0axbc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pay wall or no pay wall? Students study at the Humboldt University Library in Berlin, one of the most advanced scientific libraries in Germany. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>There is no such thing as a free lunch – or free <a href="https://www.plos.org/open-access/">open access</a>. </p>
<p>Silicon Valley futurist, <a href="http://longnow.org/people/board/sb1/">Steward Brand</a>, states that all information should be made available for free. But his <a href="http://fortune.com/2009/07/20/information-wants-to-be-free-and-expensive/">corollary</a> is that: </p>
<blockquote>
<p>… information wants to be expensive because it is so valuable… </p>
</blockquote>
<p>There is always a value chain, and costs are incurred, on a continuing basis, whatever the platform that houses it. Someone somewhere is paying for open access publishing.</p>
<p>Open access, which stands for <a href="https://www.plos.org/open-access/">unrestricted access</a> and unrestricted reuse of published materials, took off in 2012 and is driven by the promise of wider exposure of articles that can be freely read by anyone connected to the Internet.</p>
<p>Open access publishers offer different author-pays models: </p>
<ul>
<li><p>In gold open access, the author, their funder or institution pays while readers browse at no charge. Universities pay the Internet data charges. </p></li>
<li><p>‘Green’ open access, following peer review, enables authors to upload their post-print versions on their own institutional repositories. These are managed by the universities in which authors work. </p></li>
<li><p>‘Read-only’ versions, whereby browsers can access documents but they can’t be downloaded or copied, are an increasing phenomenon to enable access. </p></li>
<li><p>Independent open access journals that do not impose an author-pays model - including article processing or submission fees- are largely housed and maintained on institutional websites. They are managed and edited by volunteers. Such journals tend to disappear when the original editors move on, or when a web site crashes, or when funds become tight or a university policy changes. Their content is thus not always secure.</p></li>
</ul>
<p>Hundreds of open access journals are available on platforms like <a href="http://www.scielo.org.za/">Scientific Electronic Library Online</a>, a platform supported by the South African government. But many titles are simply one-off sites located on individual university webs.</p>
<p>Many foundations, donors and universities do pay for open access exposure. A one-time payment buys this status - provided that the host remains in business. But the costs can be very steep. This is one of the advantages of <a href="http://www.scielo.org.za">Scientific Electronic Library Online</a>. But it lacks the full-house of services offered by the commercial publishers. At the end of the day, it’s a question of what business models work for which journals. </p>
<h2>What the commercial model offers</h2>
<p>Commercial publishers’ paywalls are usually, though this differs between publishers, complemented with 50 free electronic offprints and permission to upload pre-typeset versions on personal and institutional websites. Scholars can approach individual authors and request copies of their papers via the publisher, email, or via an array of professional networking sites like <a href="https://www.google.co.za/webhp?sourceid=chrome-instant&rlz=1C1CHWA_enZA634ZA634&ion=1&espv=2&ie=UTF-8#q=ResearchGate">ResearchGate</a>, <a href="https://www.google.co.za/webhp?sourceid=chrome-instant&rlz=1C1CHWA_enZA634ZA634&ion=1&espv=2&ie=UTF-8#q=Linked-in">Linked-in</a>, <a href="https://www.growkudos.com/about/researchers">Kudos</a> and <a href="https://www.academia.edu/">Academic.edu</a>. Some publishers allocate one number annually as open access. </p>
<p>Commercial publishers provide the following services charged to the journal but not to authors: </p>
<ul>
<li>proofreading, </li>
<li>design and layout, </li>
<li>typesetting and production, </li>
<li>legal services and copyright protection, </li>
<li>computerised management and tracking of submissions, and</li>
<li>archiving of peer review reports.<br></li>
</ul>
<p>These administrative services are complemented by global marketing; distribution to thousands of subscribing libraries, and conference sponsorship. They offer regular writing, editing and training workshops, seminars on copyright law, indexing, publishing and marketing. Many publishers offer affordable pricing options to developing countries. </p>
<p>Journals licensed to a publisher can retain copyright and many permit their authors to make free copies of their own articles for class use. The corporates offer critical marketing mass; their websites dynamically cross-index similar topics within their respective stables. </p>
<p><a href="http://www.taylorandfrancis.com/">Taylor & Francis</a> in particular, via a development strategy with selected South African journals, initially facilitated by the <a href="http://www.nrf.ac.za/">National Research Foundation</a> and <a href="http://www.unisa.ac.za/default.asp?Cmd=ViewContent&ContentID=930">Unisa Press</a>, helped to position many of these titles as global, rather than only local. In so doing, they catapulted South African authors into global research networks.</p>
<p>Permission charges enable journals, publishers and authors to earn their livings. Denying them income and making their intellectual labour ‘free’ is not an option for any of them. Not all authors are fully employed; few academics earn market-related salaries, and many authors earn a living via their writing. </p>
<p>South African authors earn a state subsidy for their institutions on publications in <a href="https://theconversation.com/financial-reward-for-research-output-under-the-spotlight-in-south-africa-45567">approved lists</a>. Universities invariably use this to cover the costs of research support and development. Some authors concede a portion as taxable salary. </p>
<p>In an academic world ever more infiltrated by fraudsters, con artists and pirates, one can still trust the content and academic integrity of scientific society journals and long-standing corporate publishers. They protect against article and journal cloning, identity theft, bogus journals, forgery, author substitution, fake metrics, and prevent outright intellectual property theft. </p>
<h2>What open access lacks</h2>
<p>Open access journals, unless connected to a reputable publishing house, lack all of the above services, protections and brand value. </p>
<p>Of concern is that electronic subscription costs have by far <a href="http://lj.libraryjournal.com/2013/04/publishing/the-winds-of-change-periodicals-price-survey-2013/">outstripped inflation</a>. There is a reason for this. Academic enterprise demands that all lecturers and even graduate students produce multiple peer reviewed articles annually. </p>
<p>Universities everywhere are driving (over-)supply of product, in an environment where consumer demand is not keeping pace. In normal economics, an oversupply would see a drop in price. But in academia, the market is kept afloat artificially by the imposition of publishing targets set by individual universities irrespective of intellectual impact or significance. </p>
<p>Publishers have responded by providing the production capacity that is needed by university research and human resources departments. </p>
<p>Open access is not simply a matter of access to free articles. Readers need the infrastructural means for accessing online content. In the <a href="http://ssc.undp.org/content/dam/ssc/documents/exhibition_triangular/SSCExPoster1.pdf">Global South</a> access is impeded by exorbitant costs of bandwidth. And authors should not be written out of the analysis. Without authors there is no information.</p>
<p><em>We failed to provide a full disclosure of this author’s relationship with a publishing house for which we apologise. He provided full disclosure at the bottom of his original article. This was removed in the editing process. These details were not included in the disclosure statement as they should have been. This has now been remedied.</em></p><img src="https://counter.theconversation.com/content/46557/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keyan Tomaselli serves on the board of the Academic and Non-Fiction Authors Association of South Africa (ANFASA) and is editor of Critical Arts, a journal licensed to UNISA Press and Taylor & Francis, and co-editor of Journal of African Cinemas published by Intellect Books.</span></em></p>Much of what’s being said in support of open access publishing misses one key point: that is there is always a value chain and costs are incurred. Someone somewhere is paying for open access.Keyan Tomaselli, Distinguished Professor, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/437012015-06-23T06:44:46Z2015-06-23T06:44:46ZThere are better ways to combat piracy than blocking websites<figure><img src="https://images.theconversation.com/files/86046/original/image-20150623-19411-nmmrv4.jpg?ixlib=rb-1.1.0&rect=173%2C0%2C706%2C482&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">BitTorrent site Pirate Bay is one of those often targeted in anti-piracy legislation.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/125207874@N04/14363252187/in/photolist-nTeqt6-bUqRHK-99WwHr-h9mG5r-98gEpM-4pqiwa-9abrM1-bVVmTG-99Ww4k-brSWqk-99ZEKq-99ZDfh-99Ww5K-99Wwan-99ZEGb-99WxEv-99WxyX-98jQ2h-98jPYQ-98gF2F-riofPL-98gF9V-98jQ3y-98jQ6J-98jPUG-99WwcX-98jPMb-98jPVy-98gEZH-99ZEvb-99ZDxY-99ZECf-98jPK3-98jPsN-99Wxhv-99Wxsa-98gEQ8-99Wxun-99ZEtq-99WxeH-99WweM-99WxiZ-99ZDk3-99WwjV-99WwGc-99Wx5c-98jPjC-5XAPJt-8pcRkU-98jP77">Bhupinder Nayyar/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The Senate <a href="http://www.smh.com.au/digital-life/digital-life-news/australian-senate-passes-controversial-antipiracy-websiteblocking-laws-20150622-ghuorh.html">passed</a> controversial anti-piracy legislation, the <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr5446_ems_1599ec23-c036-4dee-9562-a8a2e4d3d6fe%22">Copyright Amendment (Online Infringement) Bill 2015</a>, last night. But it’s not so clear whether the legislation will actually achieve its stated ends of reducing piracy, and it might be easily circumvented by the public. </p>
<p>Arguably, the media industry can do more to prevent piracy by making content more easily accessible rather than quixotic efforts to block it using legislation.</p>
<p>Despite the bill being passed in both the House of Representatives and Senate, Labour MP Ed Husic and Greens Senator Scott Ludlam have spoken publicly about <a href="http://www.theage.com.au/digital-life/digital-life-news/i-dont-like-it-labor-mp-ed-husic-hits-out-at-unfair-antipiracy-websiteblocking-bill-20150618-ghrk0d.html">their concerns</a> about the legislation. </p>
<p>Husic argued that the bill “favours the interests of rights holders over consumers” and “doesn’t actually deal with the way of getting that content to people in much more efficient means”. Ludlam echoed this, stating: “This is what happens when you get a government that only listens to one side of the argument – the public interest gets left in the dust.”</p>
<p>The legislation is an attempt by the government to curb piracy in Australia. It was backed by industry groups such as the <a href="http://goo.gl/xNvYFW">Australian Film and Television industries</a>. Brett Cottle, from the Australasian Performing Rights Association (<a href="http://apraamcos.com.au/">APRA AMCOS</a>), has <a href="http://www.abc.net.au/news/2015-05-01/music-film-and-tv-industries-present-united-front-at-senate-/6437888">argued</a> that the industry had been “bled dry” by piracy.</p>
<p>This issue gained prominence after the <a href="http://www.scribd.com/doc/235041743/Copyright">Online Copyright Infringement Discussion Paper</a> was leaked by <a href="http://www.crikey.com.au/2014/07/25/government-flags-copyright-crackdown-to-overturn-iinet-decision/">Crikey</a> last year. More recently, the ongoing legal case involving the <a href="https://theconversation.com/it-is-not-clear-who-won-in-the-dallas-buyers-club-llc-court-case-and-was-it-moot-39833">Dallas Buyers Club</a> and iiNet has again <a href="https://theconversation.com/how-much-will-australias-dallas-buyers-club-pirates-have-to-pay-40302">raised questions</a> of piracy in Australia.</p>
<h2>But does the new law solve more problems than it creates?</h2>
<p>The intention is to curb online piracy, particularly of music, television and films. This is an area in which Australia has become a <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">leader</a>. But the legislation curbs piracy at what costs to consusmers? </p>
<p>The proposed annual estimated cost to carriage service provider (CSPs) of A$130,825 for implementing the law’s requirements will arguably be passed onto consumers through the pricing of internet services.</p>
<p>There are also question around the <a href="http://www.computerworld.com.au/article/562252/copyright-clampdown-scheme-block-pirate-websites-open-abuse/">abuse of such powers</a> and the content that the legislation could block. </p>
<p><a href="https://theconversation.com/profiles/matthew-rimmer-4398">Matthew Rimmer</a>, intellectual property academic, has raised concerns about how this could be “abused in a variety of different ways in terms of engaging in censorship or trying to engage in rent seeking”. He suggests that sites like Wikileaks could fall foul of these laws.</p>
<p>Even if a site is blocked, Australians might bypass the restriction by many means. One is already used by many Australians: <a href="https://theconversation.com/unlocking-the-geoblock-australians-embrace-vpns-32373">Virtual Private Network (VPN) geo-blockers</a>. These hide the user’s geographic location, thus bypassing any regional blocks. </p>
<p>More than <a href="https://theconversation.com/unlocking-the-geoblock-australians-embrace-vpns-32373">200,000 Australians</a> have already used services such as these to access Netflix prior to the company’s launch in Australia. Mumbrella <a href="http://mumbrella.com.au/astra-predicts-piracy-traffic-could-halve-following-new-laws-despite-concern-over-vpn-loophole-301318">reported recently</a> that more than 680,000 Australian households use this technology to access video content, not all for piracy.</p>
<p>But the media industry has a different perspective on the use of such technologies. In the Mumbrella article, Andrew Maiden, Australian Subscription Television and Radio Association (<a href="http://www.astra.org.au/">ASTRA</a>) chief executive, compared the use of VPNs to “getting around that a supermarket has a faulty checkout where you can take goods out without paying for them”. He added that just because it’s possible to circumvent a law, that doesn’t make it right to do so.</p>
<h2>Does it actually work?</h2>
<p>Australian media organisations argue they are doing their bit to combat piracy by making content legally available. In a Copyright Act inquiry earlier this year Foxtel’s Bruce Meagher <a href="http://www.abc.net.au/news/2015-05-01/music-film-and-tv-industries-present-united-front-at-senate-/6437888">argued</a> that the company was doing its bit by releasing content at the same time it was released in the US and at a competitive price.</p>
<p>What is not considered here is that Foxtel has a relatively small penetration rate in the Australian market, at only <a href="http://www.theguardian.com/media/2014/sep/04/foxtel-halves-price-basic-pay-tv-package">30%</a>. This is far less than the pay-TV penetration in the <a href="http://www.marketingcharts.com/television/us-pay-tv-penetration-2010-2014-45625/">US</a> (84%) and UK (50%). So even if Foxtel releases content sooner, most Australians still don’t have access to it unless they sign up for a pay TV account, which might include many channels and programs they’re not interested in.</p>
<p>However, during the <a href="http://www.abc.net.au/news/2015-05-01/music-film-and-tv-industries-present-united-front-at-senate-/6437888">Copyright Act inquiry</a>, Christopher Chard from Village Roadshow Films noted that traffic from the UK to a piracy site diminished significantly once the site was blocked in that country. This is despite some people in the UK using VPNs to still access that site.</p>
<p>In the UK more than 100 websites <a href="https://torrentfreak.com/uk-blocking-more-than-100-pirate-sites-after-new-court-order-150324/">have been blocked</a> since similar legislation was introduced in 2012. A <a href="http://www.incopro.co.uk/wp-content/uploads/2015/04/Site-Blocking-Efficacy-UK-revised-19-03-2015.pdf">report</a> by <a href="http://www.incopro.co.uk/">Incorpro</a> found a 73.2% decrease in traffic after the introduction of site blocking in the UK However, the report also found a boost in traffic to other sites that hosted pirated material. There are also some <a href="https://torrentfreak.com/uk-site-blocking-gives-boost-to-pirate-linking-sites-150102/">questions</a> about the methodology of the report, and whether it accurately tracks traffic to blocked sites, particularly over VPN.</p>
<p>On the other hand, there is evidence of piracy decreasing when content is made available to the consumer legally. For example, there is <a href="http://www.fool.com/investing/general/2015/04/26/how-hbo-and-netflix-inc-are-fighting-piracy.aspx">evidence of a decline in piracy</a> when Netflix enters a particular region. </p>
<p>Netflix arrived in Australia this year. Given that <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">many of the programs</a> acquired illegally by Australians include many of those available on Netflix, one might expect piracy rates here to decline as well.</p>
<h2>Who should change to fight piracy?</h2>
<p>This year Fremantle Media <a href="http://variety.com/2014/digital/news/fremantlemedia-claims-user-uploaded-youtube-clips-with-broadbandtv-1201161590/">announced</a> that it will no longer be removing any pirated clips of American Idol. Instead it has found a way to profit from those fan-uploaded YouTube clips of its program.</p>
<p>According to Variety, the company has partnered with BroadbandTV to identify and manage user-uploaded content on YouTube for more than 200 shows, including American Idol, The Price Is Right, America’s Got Talent, Baywatch and The X Factor.</p>
<p>Olivier Delfosse, COO of Fremantle Media, stated that:</p>
<blockquote>
<p>When we see a fan of our show who has gone through the hassle of uploading (content from) it, it’s not an indication of them stealing from us – we see it as fan loyalty […] It doesn’t matter if we upload the official clip or a user does – the value to the advertiser is the same.</p>
</blockquote>
<p>Is legislation that blocks so-called piracy sites really the solution to the problem associated with online piracy? It doesn’t solve the most common issue raised by Australians: legal and fairly priced access to the content they want to watch. </p>
<p>Ultimately, it’s more likely that solutions such as those offered by Fremantle Media and Netflix, and a re-thinking of media companies’ business models, will eliminate piracy rather than heavy-handed top-down legislation, which is also relatively trivial to bypass.</p><img src="https://counter.theconversation.com/content/43701/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>The government’s new anti-piracy bill is not the best solution to online piracy. What really works is easily accessible and affordable legal means to acquire the latest content.Marc C-Scott, Lecturer in Digital Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/403022015-04-19T20:07:02Z2015-04-19T20:07:02ZHow much will Australia’s Dallas Buyers Club pirates have to pay?<figure><img src="https://images.theconversation.com/files/78333/original/image-20150417-20770-cuggyk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australians who illegally downloaded Dallas Buyers Club could soon be receiving letters asking for payment.</span> <span class="attribution"><span class="source">Anne Marie Fox/Focus Features</span></span></figcaption></figure><p>Nearly 5,000 Australians are expected to receive letters in the near future asking them some pointed questions about their online downloading habits, specifically relating to the film <a href="https://theconversation.com/it-is-not-clear-who-won-in-the-dallas-buyers-club-llc-court-case-and-was-it-moot-39833">Dallas Buyers Club</a>. </p>
<p>What might these letters contain? Will they make threatening advances in the hope for a large settlement, as has happened in the United States? Or will they take a softer line, seeking smaller sums? </p>
<p>We don’t yet know what the letters might contain, but by looking at recent events in digital piracy, and how various copyright holders have responded, we might pick up a few clues.</p>
<h2>Flashpoint</h2>
<p>The recent <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317">legal battle</a> between Dallas Buyers Club LLC and multiple Australian ISPs – iiNet, Internode, Amnet Broadband, Dodo, Adam Internet and Wideband Networks, although excluding Telstra, Optus and TPG – has raised numerous questions. </p>
<p>How will this decision <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">impact Australian piracy levels</a>? What will be the repercussions for those who have allegedly illegally shared the film? And how could this impact changes to <a href="http://media.crikey.com.au/wp-content/uploads/2014/07/copyright.pdf">Australian copyright law</a> more broadly?</p>
<p>The decision made in regards to Dallas Buyers Club will see the ISPs provide the identities of 4,726 Australians to the film’s production company. The first respondent in the case, iiNet, has confirmed it <a href="http://www.smh.com.au/business/iinet-m2-group-wont-appeal-dallas-buyers-club-decision-20150415-1mkwkx.html">will not appeal</a>. </p>
<p>This was a case that iiNet has admitted it would have not won, but <a href="http://www.smh.com.au/business/iinet-m2-group-wont-appeal-dallas-buyers-club-decision-20150415-1mkwkx.html">noting</a> it “spent good money to make sure [Dallas Buyers Club LLC] weren’t allowed to use the information for what we considered purposes not in our customers’ interest”.</p>
<p>The legalities of downloading content without paying are <a href="http://www.smh.com.au/digital-life/digital-life-news/downloading-movies-and-tv-is-not-a-crime-20141209-11uyie.html">continually being debated</a>, even after the verdict was handed down. Arguably, this is just the starting point, with so many factors to be considered in conjunction with a <a href="https://theconversation.com/netflix-arrival-will-be-a-tipping-point-for-tv-in-australia-38386">changing Australian media lanscape</a> in 2015.</p>
<h2>Approaches abroad</h2>
<p>So how much should someone pay if they’re found guilty of illegally downloading a copyrighted movie?</p>
<p>Dallas Buyers Club LLC has already tried a variety of approaches to get pirates to pay in different countries. In the US it <a href="http://www.news.com.au/technology/online/what-to-do-if-you-receive-a-letter-from-dallas-buyers-club-llc/story-fnjwneld-1227295177465">sent letters</a> to those who allegedly downloaded the film attempting to glean around US$7,000 (A$9,000) from them. This technique is known as speculative invoicing, and is viewed by many to be a “<a href="http://www.sunshinecoastdaily.com.au/news/speculative-invoicing-downloads-bullying-tactic/2600827/">bullying tactic</a>”. </p>
<p>The use of speculative invoicing was a concern for iiNet during the Dallas Buyers Club case. Chief Regulatory Officer Steve Dalby <a href="http://www.smh.com.au/entertainment/movies/dallas-buyers-club-movie-makers-hunt-illegal-aussie-downloaders-20141023-11a9qq.html#ixzz3XNEdWIHn">stated late last year</a> that:</p>
<blockquote>
<p>[…] we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called ‘speculative invoicing’.</p>
</blockquote>
<p>An Australian who moved to Colorado, has claimed that <a href="http://www.reddit.com/r/australia/comments/322ns8/i_was_sued_over_dallas_buyers_club/">he was sued</a> by the Dallas Buyers Club LLC, in 2013 while living in the US. In the letter sent directly from his ISP, he was informed that “he had been sued and subpoenaed by Dallas Buyers Club LLC”. He was requested to pay representation and settlement costs totalling well over US$5,000 (A$6,430). After numerous discussions it is claimed the case was settled out of court for US$500 (A$643).</p>
<p>Dallas Buyers Club LLC took a somewhat different tack in Singapore – a country with the highest rates of peer-to-peer infringement of English language TV shows per capita. The company recently <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers">sent letters</a> that “ask for a written offer of damages and costs within three days of receipt”. The letters were sent to 77 M1 subscribers, with further letters to be sent to Singtel and StarHub customers.</p>
<p>In New Zealand, the process for notification of internet piracy is a “<a href="http://media.crikey.com.au/wp-content/uploads/2014/07/copyright.pdf">graduated response scheme</a>”. The process requires the copyright holder to notify the ISP, who then forwards the information to the account holder. After the third notification the rights holder can seek compensation for up to NZ$15,000.</p>
<h2>What might Australians pay?</h2>
<p>So what could happen in Australia? Dallas Buyers Club LLC is targeting nearly <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers?page=1">five times</a> as many potential copyright violators here than in the US.</p>
<p>Michael Wickstrom, the Vice President of Royalties at Dallas Buyers Club‘s parent company, Voltage Pictures, <a href="http://www.gizmodo.com.au/2015/04/you-might-not-get-fined-for-downloading-dallas-buyers-club/">has said</a> that “we are working with our Australian attorneys to come up to an Australian solution to an Australian problem. What works in the US may not work […] in Australia. But we are developing a system that becomes a deterrent”. What that will be is yet to been seen.</p>
<p>The first point that needs to be made in regards to the Dallas Buyers Club case in Australia, is that the Federal Court will <a href="http://https://accan.org.au/news-items/hot-issues/1037-online-piracy-speculative-invoicing">review all letters</a> prior to them being sent. This will minimise the possibility of harsh speculative invoicing, which was one of iiNet’s reservations. </p>
<p>According to the reports and expert views, Dallas Buyers Club LLC will likely ask for lower amounts from Australians than in the US. Mark Vincent, an IP Lawyer, argues that what we are likely to see is “<a href="http://www.smh.com.au/digital-life/digital-life-news/internet-pirates-might-pay-only-20-compensation-each-to-dallas-buyers-club-20150411-1mgx2e.html">order damages</a>” for the cost of legally obtaining the film – which would be about A$20. </p>
<p>However, Tom Godfrey from <a href="https://www.choice.com.au">CHOICE</a> believes that what Dallas Buyers Club LLC and consumers see as a fair costs could vary considerably. In addition to the cost for obtaining the film, Dallas Buyers Club LLC may also <a href="http://www.smh.com.au/digital-life/digital-life-news/dallas-buyers-club-tells-downloaders-to-name-price-for-pirating-their-film-20150415-1mlapg.html">argue that</a> “it should include the costs of their application for preliminary discovery, and the costs associated with sending the letter”.</p>
<h2>Waiting game</h2>
<p>It will now be a waiting game for those Australians who may receive one of these letters from Dallas Buyers Club LLC. What is clear is the amount requested is likely to be far less than the US$5,000 requested in the US. </p>
<p>While there has also been <a href="http://www.todayonline.com/singapore/peer-sharing-affects-livelihoods-film-makers">confirmation</a> of replies and acceptance of offers in the more recent Singaporean case, the figures have not been disclosed. Therefore a comparison can not be applied.</p>
<p>This raises another issue when it comes to piracy. In the discussion that is likely to take place between rights holders and the government, one key stakeholder is not being included: the consumers.</p>
<p>Suing “mums and dads and students” should not be the path rights holders undertake. We have seen this year in a Australia a change in the access and cost of media content, specially film and television, thanks to new <a href="https://theconversation.com/netflix-arrival-will-be-a-tipping-point-for-tv-in-australia-38386">video-on-demand services</a>. </p>
<p>Once established, these new services will give a clear indication whether the <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">reasons given by Australians</a> for illegally downloading content, access and costs, were in fact correct.</p><img src="https://counter.theconversation.com/content/40302/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>How much might Australians caught illegally downloading Dallas Buyers Club be charged for their indescretion?Marc C-Scott, Lecturer in Digital Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/399302015-04-13T06:19:24Z2015-04-13T06:19:24ZIs downloading really stealing? The ethics of digital piracy<figure><img src="https://images.theconversation.com/files/77745/original/image-20150413-10562-1uqlr9r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Piracy might be theft, but it's not the same as robbing someone of their material possessions.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mrdos/3356126980/in/photolist-67z2Ch-5NJKUm-bGa8Qr-rak53-8BX85L-4YCuRm-9JY5Zu-C39xc-iwbZDq-6W3kBa-72VEQ2-bnQDUV-4W6FWp-6TrdZG-dmhHi-Lufdz-5veCU-6PZc3x-bEcfTC-7zKW7T-aqh5bn-68t5Z1-hqJuD-o7Zm6W-7jGXTa-388e2E-bnSn6U-6oy7eF-hZ2npV-5X8RMC-AJXSQ-AJXSH-aDqGh3-FffRN-5d6pBz-6TncYR-qjk9jU-9X9hFL-7R9q6C-qnPCPe-4vnuQ5-77VJTS-81SBkJ-eq8MT8-6TfUsx-2qjjPN-91prbd-4KGk9k-4KLkDb-4KGone">Josu/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Many millions of people throughout the world will illegally download the fifth season of <a href="https://theconversation.com/explainer-game-of-thrones-the-story-so-far-24321">Game of Thrones</a>, released today by HBO. Legally speaking, what they will be doing is a violation of intellectual property rights, or “piracy”. But will they be doing anything morally <em>wrong</em>? </p>
<p>It might seem obvious that what they will do is wrong. After all, it is illegal. But there are many things that have been illegal that people don’t think are morally wrong. Same-sex relationships, divorce and many other practices that are now widely accepted as morally acceptable were once outlawed and criminally sanctioned.</p>
<p>Few people think they were wrong just before they were legalised. Rather, they tend to think the laws governing these behaviours were unjust. So appeal only to the illegality of downloading doesn’t settle whether it is okay, morally speaking. </p>
<h2>Opposing views</h2>
<p>Two rival camps dominate public discussion around the ethics of illegal downloading. On the one hand, there are what might be called “fundamentalist libertarians”. These think that all ideas and artistic creation should be <a href="http://www.wired.co.uk/news/archive/2012-02/13/peter-sunde-evolution">held in common and be freely accessible to all</a>. </p>
<p>In their view, intellectual property, in the form of copyright and patents, unfairly <a href="https://pirateparty.org.au/faq/">restricts access to ideas and expression</a>. They consider illegal downloading to be victimless crime, and do not think it imposes significant cost on anyone. In their view, the serious criminal sanctions that sometimes attach to illegal downloading are draconian and unjustified.</p>
<p>On the other hand, there are what might be called the “fundamentalist protectors”. This camp thinks that illegal downloading is equivalent to common theft. </p>
<p>This view is vividly expressed in the aggressive message that often precedes films in Australia: </p>
<blockquote>
<p>You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a television, you wouldn’t steal a movie. Downloading pirated films is stealing. </p>
</blockquote>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/HmZm8vNHBSU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>According to fundamentalist protectors, owners of intellectual property deserve just as much protection and means for redress as those who have had their handbags or televisions stolen, including civil and criminal sanction against those who have violated their intellectual property. </p>
<p>For them, the massive penalties that are sometimes attached to illegal downloading are important because they send a clear message that this practice should not be tolerated. This seems to be the view of much of the <a href="http://www.abc.net.au/triplej/hack/stories/s4212674.htm">entertainment industry</a>, as well as public officials and legislatures in countries that produce and export a lot of intellectual property. </p>
<p>In a <a href="http://www.cnet.com/news/obama-to-aggressively-protect-intellectual-property/">recent speech</a>, for example, US President Barak Obama claimed:</p>
<blockquote>
<p>We’re going to aggressively protect our intellectual property […] Our single greatest asset is the innovation and the ingenuity and creativity of the American people […] It is essential to our prosperity. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it.</p>
</blockquote>
<h2>Excluding theft</h2>
<p>Despite their currency, both of these positions are overdrawn and seem at odds with moral common sense. The fundamentalist protector position is problematic because there are clear and morally relevant differences between stealing someone’s handbag and illegally downloading a television series. </p>
<p>In common theft, the owner of property is entirely deprived of its use, as well as their ability to share it and dispose of it as they choose. Common theft is zero-sum: when I steal your handbag, my gain really is your loss. </p>
<p>The same is not true when I download a digital file of your copyrighted property. In downloading your film, I have not excluded you from its use, or your ability to benefit from it. I have simply circumvented your ability to exclude me from its use. To draw an analogy, this seems more like trespassing on your land than taking your land away from you. </p>
<p>Criminal sanctions seem warranted in thefts where one person’s gain is very clearly another person’s loss. But things are not so clear when the relationship between gain and loss are more complex. </p>
<p>And of course there are ways that owners of intellectual property can gain, overall, from infringements of their rights. The more accessible their products become, the more people may want to consume them. This certainly seems to be the case with products like Game of Thrones, a fact <a href="http://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">recognised by its producers</a>.</p>
<h2>Protecting public goods</h2>
<p>On the other hand, the fundamentalist libertarian position is problematic because it treats all intellectual property infringement as a victimless crime. For one thing, intellectual property rights are an important means by which people gain profit from the effort that they put into the production of creative works. </p>
<p>That they can profit in this way provides an important incentive – aside from the intrinsic value of the productive activity itself – for them to engage in socially useful productive activity. </p>
<p>This is evident in other fields, such as research and development of medical treatments: firms have little reason to invest the time and resources in developing vaccines and other <a href="http://en.wikipedia.org/wiki/Public_good">public goods</a> if they cannot benefit from their distribution. </p>
<p>Thus, not protecting the rights of the producers in some meaningful way is bad for everyone. Infringing intellectual property rights can also increase cost to those do pay for the good, in the form of higher prices. Those who pay for intellectual property are effectively subsidising its use by those who do not pay for it. In most cases this seems unfair.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77734/original/image-20150413-10555-djv45w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Copyright holders are going to great lengths to discourage piracy.</span>
<span class="attribution"><span class="source">Descrier/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>A different kind of theft</h2>
<p>The question of the morality of illegal downloading is so difficult because it takes place in an environment in which the penalties attached to this behaviour ordinarily seem to be overkill, but where there are pretty clear social costs to engaging in it. </p>
<p>What, then, should be done? For starters, it seems important to stop treating intellectual property infringement as common theft, and to develop different legal remedies for its protection. Various kinds of property are different, and warrant different forms of protection. This is hardly a novel idea.</p>
<p>In his fascinating book, <a href="http://www.amazon.com/Thirteen-Ways-Steal-Bicycle-Information/dp/0674047311">13 Ways to Steal a Bicycle: Theft Law in the Information Age</a>, the legal philosopher Stuart Green has pointed out that treating all infringement of property as theft subject to the same legal rubric is a relatively new development.</p>
<p>Prior to the 20th Century, theft law consisted of a sort of ad hoc collection of specific theft offences and specific kinds of property that were subject to theft. Different rules applied to different offences, and intangible forms of property, like intellectual property, were not included in theft law at all. We may need to <a href="http://www.carnegiecouncil.org/studio/multimedia/20120606/index.html#section-23499">return to rules</a> that are well suited to protecting different forms of property. </p>
<p>In the meantime, it seems incumbent on consumers to try to respect intellectual property unless doing so imposes unreasonable cost on them. Refraining from accessing patented essential medicines that are inaccessible due to price does seem unduly costly. Refraining from watching the latest season of Game of Thrones, the ardour of its fans notwithstanding, does not. </p>
<p>At the same time, we should also strongly resist massive penalties levied on downloaders when they are caught. The practice of “<a href="https://www.scribd.com/doc/230228190/Dbc-Settleltr-00384oh">speculative invoicing</a>” – whereby people are sent threatening letters that offer the opportunity to pay a sum to prevent legal action seeking vast sums – is seriously objectionable. Even if what the downloaders have done is wrong, it is much worse to over-punish them.</p><img src="https://counter.theconversation.com/content/39930/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Barry receives funding from the Australian Research Council for the project The Ethical Responsibilities of Consumers</span></em></p>Downloading copyrighted material without permission is illegal, but is it morally equivalent to stealing a DVD?Christian Barry, Head of the School of Philosophy, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/399122015-04-10T07:37:59Z2015-04-10T07:37:59ZFrom convicts to pirates: Australia’s dubious legacy of illegal downloading<figure><img src="https://images.theconversation.com/files/77610/original/image-20150410-2103-16a6jpx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Game of Thrones has been the most pirated television show in history. Will season 5 be any different?</span> <span class="attribution"><span class="source">Helen Sloan/HBO</span></span></figcaption></figure><p>The fifth season of Game of Thrones is being <a href="http://www.smh.com.au/entertainment/tv-and-radio/game-of-thrones-to-be-broadcast-simultaneously-around-earth--which-means-11am-monday-aest-20150311-140jrr.html">released simultaneously across the globe</a>, which means Australians will get access from 11am (AEST) on Monday April 13. HBO has decided to not drip-feed the episodes across differing regions, a method more commonly used for television series.</p>
<p>One reason for the change is an attempt to curb the high piracy rate associated with earlier broadcasts of the popular television series, particularly in Australia.</p>
<p>But according to Game of Thrones director, <a href="http://torrentfreak.com/piracy-doesnt-hurt-game-of-thrones-director-says-130227/">David Petrarca</a>, piracy is not a bad thing and “may do more good than harm” by contributing to the buzz around the series. </p>
<p>During 2013, prior to the third season, <a href="http://www.smh.com.au/entertainment/tv-and-radio/downloads-dont-matter-20130226-2f36r.html#ixzz2LywE7AZ2">Petrarca said</a> that unauthorised downloads did not matter because shows such as Game of Thrones thrive on “cultural buzz” and benefit from the social commentary they generate.</p>
<p>The premiere of season 4 for Game of Thrones triggered a <a href="http://torrentfreak.com/game-of-thrones-premiere-triggers-piracy-craze-140407/">record rate</a> of “more than a million downloads in half a day”. Torrent Freak <a href="http://torrentfreak.com/game-of-thrones-premiere-triggers-piracy-craze-140407/">revealed</a> Australia as the leader (11.6%) in illegal sharing of the episodes, followed by the US (9.3%) and UK (5.8%). </p>
<p>Australian cities also led the top cities in illegally sharing the program. Melbourne ranked number one and Sydney third, with Brisbane (ninth) and Perth (tenth) rounding out the top ten. These are not titles of which Australians should be proud. </p>
<h2>Dubious record</h2>
<p>Game of Thrones is not the only television program with a legacy of piracy. The Breaking Bad finale in 2013 had <a href="http://www.smh.com.au/entertainment/tv-and-radio/house-of-cards-season-3-piracy-booms-in-countries-without-netflix-20150302-13sr7a.html">illegal downloads</a> of “more than half a million times within 12 hours”. </p>
<p>Top of the list again for pirating the finale was Australia, accounting for 18% of the illegal downloads, followed by the US (14.5%) and UK (9.3%).</p>
<p>But we are not always on top of the illegal download table. The recent release of House of Cards season 3 saw Australia at <a href="http://www.smh.com.au/entertainment/tv-and-radio/house-of-cards-season-3-piracy-booms-in-countries-without-netflix-20150302-13sr7a.html">fourth place</a>, behind China, the US and India. </p>
<p>What is important to note is that of the top ten countries listed, half – China, India, Australia, Poland and Greece – had no local Netflix service (although the Australian service launched weeks later). This lends support to the notion that a key problem is access, which needs to be resolved to help reduce piracy globally.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77613/original/image-20150410-2092-dg1jxi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Breaking Bad is another television show that has been heavily downloaded by Australians.</span>
<span class="attribution"><span class="source">Ursula Coyote/AMC</span></span>
</figcaption>
</figure>
<h2>But are Australians the pirate leaders?</h2>
<p>The <a href="http://www.ipawareness.com.au">Intellectual Property Awareness Foundation</a> has commissioned studies in this area since 2009. Its <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120744">2010 report</a> showed that more than half of Australia’s population had participated in some form of piracy. The largest group was 18-24 year olds, with 69% pirating in some way, and over half using file-sharing software to pirate films and television programs. </p>
<p>The <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120742">following year</a> the attitude and rate of piracy of movie and television programs in Australia had “remained consistent”. </p>
<p>The <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120375">2012 report</a> stated that more than a quarter of those surveyed were persistent or casual illegal downloaders (i.e. downloading at least once a month). A further 10% noted they had but were no longer downloading illegal content. The report also indicated that the “persistent” downloaders were downloading more television programs than movies. </p>
<p>In <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=157662">2013</a> those who were persistent or casual illegal downloaders dropped by a small margin of 2%. But research by Sycamore Research and Newspoll in 2014 <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=178182">showed</a> “29% of Australian adults admitting to being active pirates”, up 4% from the previous year.</p>
<p>What maybe more surprising for some is that piracy rates in Australia correlate with <a href="http://www.theaustralian.com.au/business/media/online-piracy-appeals-most-to-those-who-are-better-educated/story-fna03wxu-1226660999120">level of income and education</a>. The rate of piracy more than doubles between those with a household income of A$40,000 (14%) to over A$100,000 (30%). The rate is highest in Victoria (25%) and metro areas far outweigh regional areas, 25% to 16%.</p>
<p>Even the US ambassador to Australia, Jeffrey Bleich, has <a href="https://www.facebook.com/notes/ambassador-bleich/stopping-the-game-of-clones/542850132425361">asked Australians</a> to stop pirating Game of Thrones after the launch of season 3. In his Facebook message, Stop the Game of Clones, he states:</p>
<blockquote>
<p>As the Ambassador here in Australia, it was especially troubling to find out that Australian fans were some of the worst offenders with among the highest piracy rates of Game of Thrones in the world. While some people here used to claim that they used pirate sites only because of a delay in getting new episodes here, the show is now available from legitimate sources within hours of its broadcast in the United States.</p>
</blockquote>
<p>The post resulted in numerous opposing comments, resulting in a second post, <a href="https://www.facebook.com/notes/former-us-ambassador-jeffrey-bleich/return-of-the-clones/546315188745522">Return of the Clones</a>.</p>
<p>But Australia should not be seen as a country of pirates, nor should piracy be seen as the social norm in this country. <a href="http://www.abc.net.au/news/2014-10-15/piracy-cancer-will-kill-australian-film-tv-industry-john-jarratt/5815864">The ABC reports</a> that 60% of Australian adults and 66% of Australians aged 12 to 17 said they had never downloaded or streamed pirated content.</p>
<h2>Why are Australian’s downloading TV and movies?</h2>
<p>The main reasons Australians give for pirating content are cost and availability of content. In 2010 <a href="http://www.news.com.au/">News.com.au</a> completed market research that <a href="http://www.news.com.au/technology/internet-pirates-say-theyd-pay-for-legal-downloads/story-e6frfro0-1225863187697">reported</a> that TV shows were more regularly downloaded than films or music. </p>
<p>The study also showed that:</p>
<blockquote>
<p>The most popular prices for legal downloads chosen by respondents were $1 per TV show, $2 per movie and 50c per music track.</p>
</blockquote>
<p>The discussion of price was again raised in 2014 by the Communications Alliance <a href="http://www.commsalliance.com.au/__data/assets/pdf_file/0003/46857/Online-Copyright-Infringement-Summary.pdf">Online Copyright Infringement Research Report</a>, which <a href="http://www.afr.com/business/telecommunications/aussies-say-theyll-stop-pirating-tv-shows-if-they-get-better-access-20141112-11l84h#">noted</a> that “most Australians believe cheaper and easier access to content will solve piracy problems”. </p>
<p>The report found that Australians believe that A$1.20 per episode was the optimal price for television content, which is less than half the iTunes price for standard-definition shows, at $A2.99 per episode, and far from the high-definition price of A$3.49 per episode. </p>
<p>The <a href="http://www.ipawareness.com.au">Intellectual Property Awareness Foundation</a> reports of 2012 and 2013 also had interesting results. During <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=120375">2012</a>, when acting legally, the preferred method from those surveyed was to stream content rather than downloading it. The following year the <a href="http://www.ipawareness.com.au/LiteratureRetrieve.aspx?ID=157662">research showed</a> a 4% increase on the uptake of pay-per-view services from the previous year.</p>
<h2>Exclusive issues</h2>
<p>Despite the many years of discussion around Australians’ delayed access to content, it still continues. The most pirated television program, Game of Thrones, is restricted to Foxtel, which has only a <a href="http://www.theguardian.com/media/2014/sep/04/foxtel-halves-price-basic-pay-tv-package">30% penetration</a> rate in Australian households. </p>
<p>This is in comparison to the US, where pay TV has <a href="http://www.marketingcharts.com/television/us-pay-tv-penetration-2010-2014-45625/">over 80%</a> penetration, and 50% in the UK. Therefore, in the local environment, 70% of households will not have access to the program – at least, not without subscribing to a large package of other programs and channels.</p>
<p>In the US the latest season will be available via the new HBO Now service via Apple TV, at a cost of <a href="http://www.smh.com.au/digital-life/digital-life-news/how-aussies-geododgers-could-benefit-from-new-apple-tv-deal-with-hbo-now-20150309-13zq7z.html">US$14.99 per month</a>. For Australians this won’t be an option, unless they wish to attempt bypassing geo-blocking. Again, the content producers are demonstrating a “restrictive” – or as they may say, “exclusive” – ideology. </p>
<p>As noted previous, Australians’ approach toward subscription television is far different to those in the US. In Australia, television was developed on a free-to-air model. Subscription services like Foxtel are still young in comparison to the US, which has a <a href="http://www.fcc.gov/encyclopedia/evolution-cable-television">long history</a> of pay television.</p>
<p>In the US there has been a recent decline in the subscription rate of pay television with the introduction of Netflix. A report by Leichtman Research Group stated that:</p>
<blockquote>
<p>48% of US households that don’t subscribe to pay TV now pay a monthly Netflix bill, up from just 29% in 2012 and 16% in 2010.</p>
</blockquote>
<p>Netflix has also been shown to lower the BitTorrent traffic in the countries it operates within. Netflix’s chief content officer, Ted Sarandos, <a href="http://www.stuff.tv/news/netflixs-ted-sarandos-talks-arrested-development-4k-and-reviving-old-shows#RlAHmETKxVCxc09T.99">noted</a>:</p>
<blockquote>
<p>When we launch in a territory the Bittorrent traffic drops as the Netflix traffic grows. So I think people do want a great experience and they want access – people are mostly honest. The best way to combat piracy isn’t legislatively or criminally but by giving good options.</p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77614/original/image-20150410-2122-15zpjh9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The arrival of video-on-demand services such as Netflix in Australia may reduce the incidence of piracy.</span>
<span class="attribution"><span class="source">Dekuwa/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<h2>Will the new VoD services assist with piracy in Australia?</h2>
<p>Whilst we can continue to make the comparisons between Australia, the United States and the United Kingdom, we need to be clear about the differences between the media structures and business models of the countries.</p>
<p>Whilst Australia emulates parts of the US and UK models, Australian viewing and sourcing of media, particularly television, differs from the other two countries.</p>
<p>Australia’s free-to-air broadcasters have made attempts to hinder piracy by “fast-tracking” programs, but it appears this has not had a major impact. This may be due to the limited prime-time hours available to Australia’s three commercial broadcasters and the added costs to broadcast a program at the same time as it is launched in the US.</p>
<p>While the new <a href="https://theconversation.com/what-do-netflix-stan-and-presto-mean-for-australian-tv-39244">video-on-demand (VoD)</a> services – Stan, Presto and Netflix – could assist in reducing piracy, as evident by the results in the US with Netflix, there still is the issue of “exclusive” rights, in particular with Foxtel. </p>
<p>This could change in the future as Foxtel is a joint partner with Seven in Presto. But for now Game of Thrones remains solely with Foxtel. This could yet again see Australia top the piracy charts for season 5.</p><img src="https://counter.theconversation.com/content/39912/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>Australians are amongst the top pirates of movies and television worldwide, but that may change in time.Marc C-Scott, Lecturer in Digital Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/398012015-04-08T00:49:16Z2015-04-08T00:49:16ZCopyright trumps privacy in Dallas Buyers Club ruling<figure><img src="https://images.theconversation.com/files/77265/original/image-20150407-26496-1owu2b6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Dallas Buyers Club ruling is a further attack on online privacy.</span> <span class="attribution"><a class="source" href="http://www.voltagepictures.com/details.aspx?ProjectId=131e77c6-d02a-e211-a8d1-d4ae527c3b65">Voltage Pictures</a></span></figcaption></figure><p>Our <a href="https://theconversation.com/au/topics/online-privacy">online privacy</a> is constantly under threat. Our activities on the internet are monitored for a variety of reasons and our <a href="http://www.un.org/en/documents/udhr/index.shtml#a12">human right of privacy</a> is often pitted against other human rights like freedom of expression. </p>
<p>Such situations require an appropriate balance to be struck, and there are <a href="https://theconversation.com/google-court-ruling-creates-a-more-forgetful-internet-26696">signs of privacy gaining ground</a>. But there is one interest that always seems to trump privacy: the financial interest protected by copyright.</p>
<p>Only yesterday the Federal Court of Australia <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2015/317.html">ruled</a> that a group of internet service providers (ISPs) are required to disclose details of almost 5,000 of their account holders to a Hollywood studio. The individuals in question are alleged to have illegally downloaded the movie Dallas Buyers Club over the internet without permission.</p>
<p>The case is being discussed as a landmark “<a href="http://www.theaustralian.com.au/business/latest/iinet-loses-dallas-buyers-club-landmark-piracy-case/story-e6frg90f-1227294508657">anti-piracy</a>” case. However, for most Australians, it is more importantly a landmark “anti-privacy” case.</p>
<h2>The background</h2>
<p>The dispute arose when the copyright holders of Dallas Buyers Club, Voltage Pictures, <a href="http://www.smh.com.au/digital-life/digital-life-news/dallas-buyers-club-slays-iinet-in-landmark-piracy-case-20150407-1mey38.html">hired a German firm</a> to identify individuals illegally sharing the film online. They subsequently identified 4,726 Australian <a href="http://www.pcmag.com/encyclopedia/term/45349/ip-address">IP addresses</a> they associated with the sharing of the movie via <a href="http://www.pcmag.com/encyclopedia/term/38716/bittorrent">BitTorrent</a>. </p>
<p>To link those IP addresses to real people – who can be made to pay for the alleged copyright violations – the copyright owners needed the help of the Australian ISPs that had distributed those IP addresses to their users. That is, only the ISPs can provide the necessary link between the infringing IP address and the account holder who was assigned that IP address at that particular time.</p>
<p>When a group of Australian ISPs refused to disclose the personal details of their users to the US copyright owners, the copyright owners sought the assistance of the courts by filing a “discovery application”, a tactic previously applied in other parts of the world. </p>
<h2>The rules about legal ‘discovery’</h2>
<p>A key issue in the case was the fact that, in many circumstances, several people share the same internet connection. Consequently, in such situations the actual offender may not be the account holder. In essence, what the copyright owners wanted was for the ISPs to be forced to reveal the identity of the account holders so that the account holders could be forced to identify the actual offenders. </p>
<p>This issue went to the heart of the court proceedings. The judge – <a href="http://www.fedcourt.gov.au/about/judges/current-judges-appointment/current-judges/perram-j">Nye Perram</a> – acknowledged that, to meet the requirements of the relevant provision of the law (<a href="http://www.austlii.edu.au/au/legis/cth/num_reg/fcr2011n134o2011269/s7.22.html">Federal Court Rules 7.22</a>), it was necessary for the copyright owners to satisfy the court that the ISPs know or are likely to know the identity of the prospective respondent. Ostensibly, this is the person or persons who infringed copyright.</p>
<p>Given the ISPs can only identify the account holders, not the actual offenders, the law does not seem to support the copyright owner’s application to be provided with the personal information of the account holders. </p>
<p>However, through what can only be described as a legal contortionist show, justice Perram managed to read the relevant law to mean something different to what it says, so that the discovery sought by the copyright owners could be allowed after all. </p>
<p>The problem is obvious: where the law is bent and twisted to such a degree, it will never be straight again. And where the law does not mean what it says, it is a failure. </p>
<h2>Privacy issues</h2>
<p>The potential difference between account holders and actual copyright infringers is relevant also when it comes to one of the privacy concerns the case gives rise to. After all, if the copyright infringer and the account holder are different people, then a notice containing a description of the content that is alleged to have been downloaded may disclose sensitive personal information about the alleged infringer to the account holder. </p>
<p>Such handling of personal information is only lawful where it is authorised under the <a href="http://www.comlaw.gov.au/Series/C2004A03712">Privacy Act 1988</a>. Yet this matter was not even mentioned in the judgement.</p>
<p>Instead, justice Perram saw the privacy aspect as properly disposed of merely by imposing a condition that the copyright owners only would be allowed to use the personal details of the relevant 4,726 Australians for the purpose of recovering compensation for the infringements. </p>
<p>As this restriction does not require anything that is not already required under the Privacy Act 1988, it does not really soften the blow to privacy that this decision represents.</p>
<p>Other privacy concerns relate to questions such as: </p>
<ol>
<li><p>How will the copyright owners choose which internet users they place under surveillance?</p></li>
<li><p>Is there a risk that the personal information collected by the copyright holders will attract hackers <a href="http://arstechnica.com/tech-policy/2011/05/france-halts-three-strikes-ip-address-collection-after-data-leak/">as happened in France</a>?</p></li>
<li><p>Are there any privacy risks stemming from the fact that the surveillance of Australian internet users is carried out from abroad, and from the fact that personal information about Australian internet users is at risk of being exported to copyright owners overseas? </p></li>
</ol>
<p>The groundwork for a judgement hostile to privacy like this was laid down already in 2011 by the High Court of Australia in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html">another anti-piracy dispute</a>. In the context of that case, the <a href="https://www.privacy.org.au/">Australian Privacy Foundation</a> had <a href="https://www.privacy.org.au/Papers/HCA-Amicus-iiNet-111007.pdf">filed a “friend of the court” brief</a> (<a href="http://en.wikipedia.org/wiki/Amicus_curiae"><em>amicus curiae</em></a>) seeking to draw attention to the considerable privacy concerns that arise where ISPs are forced to reveal customer information to copyright owners. However, the High Court <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/54.html">took no interest in the privacy angle</a>.</p>
<p>The concern for the future is obvious. With a precedent like that set by justice Perram, monetary copyright interest are given a carte blanche to continue to trump our fundamental human right of privacy, with increased online surveillance as the tragic consequence.</p><img src="https://counter.theconversation.com/content/39801/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Jerker B. Svantesson is an ARC Future Fellow (project number FT120100583) and receives funding from the Australian Research Council. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.
In 2011, he was a Deputy Chair of the Australian Privacy Foundation and the lead author of the amicus brief referred to in the text.
</span></em></p>The Dallas Buyers Club court ruling has serious implications for online privacy.Dan Jerker B. Svantesson, Co-Director Centre for Commercial Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/344182014-11-24T19:36:33Z2014-11-24T19:36:33ZBlocking piracy websites is bad for Australia’s digital future<figure><img src="https://images.theconversation.com/files/65299/original/image-20141124-19627-12l61m8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Website blocking always fails – audiences will always find a way to watch Game of Thrones.</span> <span class="attribution"><span class="source">Foxtel</span></span></figcaption></figure><p>Rumours are <a href="http://www.smh.com.au/digital-life/digital-life-news/online-piracy-websites-set-to-be-blocked-sources-20141117-11o8pz.html">flying</a> that the government will introduce legislation before Christmas aimed at blocking certain websites, such as The Pirate Bay and Kickass Torrents, as part of a range of efforts to reduce copyright infringement in Australia.</p>
<p>Although the details are unclear at this stage, it looks like the law will allow copyright owners such as movie distributors and record labels to seek a court order to block sites that facilitate peer-to-peer file sharing, providing access to copied content.</p>
<p>This looks like a good idea, and it’s certainly a less intrusive approach than “extended authorisation liability”, the last copyright reform which the government <a href="http://www.ag.gov.au/Consultations/Documents/Onlinecopyrightinfringement/FINAL%20-%20Online%20copyright%20infringement%20discussion%20paper%20-%20PDF.PDF">proposed</a> in July and then <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-admits-unanimous-opposition-to-copyright-law-proposal-20140910-10ethp.html">hurriedly dropped</a> in the face of almost universal condemnation. </p>
<p>The problem is that website blocking always fails. </p>
<p>The technical problems with website blocking are the most obvious. Basically, you can block at the domain name level, or at the level of the internet address. </p>
<p>Blocking domain names means that the content owner convinces a court to tell internet service providers (ISPs) to drop problematic domain names from their name servers. This means that when a copyright scofflaw like, well, me, tries to get access to <a href="http://thepiratebay.se">The Pirate Bay</a> nothing happens. The domain name doesn’t resolve correctly, and so it’s like the site doesn’t exist. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65261/original/image-20141124-1046-on3h4h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Co-founder of The Pirate Bay, Swede Hans Fredrik Lennart Neij, was arrested in Nong Khai province, Thailand, earlier this month.</span>
<span class="attribution"><span class="source">EPA/STR THAILAND OUT</span></span>
</figcaption>
</figure>
<p>There are some good policy reasons to be troubled about this type of action — essentially it breaks <a href="https://theconversation.com/explainer-net-neutrality-2315">the guarantee of internet connectivity</a> — but even if the government ignores that principle, the bigger problem is that it just doesn’t work. </p>
<p>The Pirate Bay will just change its domain name, forcing a constant game of Whack-A-Mole for the content companies and the courts. In any event, I can still get access to The Pirate Bay by getting a <a href="https://theconversation.com/harpers-competition-review-is-good-news-for-netflix-consumers-32092">virtual private network</a> (VPN) or change my domain name system (DNS) lookup server. (It sounds complicated, but trust me, every 15-year old will know how to do this if the government introduces domain name blocking.)</p>
<h2>Blocking is a technical nightmare</h2>
<p>Blocking websites at the internet address level is trickier. This involves stopping all traffic from a given IP (internet protocol) number or a given block. </p>
<p>The problem with this type of action is that it inevitably catches and stops some innocent content. For networking reasons numerous websites can share the same IP number or address block, and so shutting down one IP address can wipe out other sites that are completely fine. </p>
<p>Back in 2013, the Australian Securities and Investment Commission (ASIC) applied a little-used section of the Telecommunications Act to block three websites that were hosting investment scams. ASIC ended up with <a href="http://www.computerworld.com.au/article/553342/asic_reveals_depth_ignorance_over_website_blocking_debacle/">egg on its face</a> when the block also wiped out Australian access to around 250,000 innocent websites that happened to be hosted on the same address.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=440&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=440&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=440&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=553&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=553&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65335/original/image-20141124-19639-7su3mk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=553&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Communications Minister Malcolm Turnbull looks set to introduce laws favouring US content providers.</span>
<span class="attribution"><span class="source">AAP/ Nikki Short</span></span>
</figcaption>
</figure>
<p>The other really serious technical problem is that you actually can’t block many of the places where infringing content is hosted. When I download a movie using BitTorrent (a peer-to-peer file transfer protocol), a huge swarm of computers from all over the internet is responsible for sending me bits and pieces of the movie file. </p>
<p>Although a court could order ISPs to block sites like The Pirate Bay that aggregate the initial seed for the torrent files, there is no way to block all the computers that eventually provide me with the movie.</p>
<p>So all in all, blocking is a technical nightmare. However, these problems pale compared with the policy problem of how you write a law that catches only the “bad guys”. </p>
<p>The law can’t just block sites that host infringing content, because sites such as The Pirate Bay actually don’t host infringing content. But if you draft the law to catch sites like this which help me find movie torrents, then you’re going to shut down Google. </p>
<p>Beyond Google – who will never let a law like this get through – a poorly drafted law will inevitably be used to threaten Australia’s nascent cloud computing industry, because cloud storage is where a large number of infringing files are found these days. </p>
<p>So, once again, we’ll have laws that favour US content industries at the expense of Australia’s digital future.</p>
<p>At best, blocking laws might be slightly effective to reduce the access to overseas movie streaming sites. Maybe. This should make Foxtel and Australian market newcomer Netflix happy because a small number of people will buy a subscription because they can no longer get programs like Game of Thrones free on the internet. </p>
<p>But after a while you have to ask whether it’s worth spending the amount of time, money, and effort that the government keeps expending to keep the copyright lobby happy.</p><img src="https://counter.theconversation.com/content/34418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Hunter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Rumours are flying that the government will introduce legislation before Christmas aimed at blocking certain websites, such as The Pirate Bay and Kickass Torrents, as part of a range of efforts to reduce…Dan Hunter, Dean, Swinburne Law School, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/327822014-11-06T09:49:21Z2014-11-06T09:49:21ZThe next great copyright act should be flexible and forward-looking<figure><img src="https://images.theconversation.com/files/62404/original/3gz2hqr8-1413908475.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Congress has recently stepped up its efforts to reform the copyright system, which is woefully inadequate to deal with today’s rapidly evolving communication technologies. These efforts began early last year after Maria Pallante, the US Register of Copyrights, urged lawmakers to review the existing system and come up with <a href="http://www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=612486">“the next great copyright act.”</a> </p>
<p>Updating our aging copyright laws, however, will not be easy. Although the entertainment industries have called for stronger protection and enforcement, internet users and civil society groups fear that tighter protection would stifle technological innovation while impeding access to knowledge and information. The two sides are unlikely to agree any time soon.</p>
<h2>Past reform efforts</h2>
<p>Even worse, copyright reform efforts have often led to unintended consequences. For example, the Digital Millennium Copyright Act of 1998 was designed to facilitate the use of technology to protect movies, music and computer software. Yet, the law has been <a href="https://www.eff.org/wp/unintended-consequences-under-dmca">misused</a> to stifle competition over technologies not on the minds of lawmakers, such as garage door openers and printer toner cartridges.</p>
<p>Likewise, many copyright penalties were created with commercial pirates in mind. In the past decade, however, they have been repeatedly used to target individual non-commercial activities. Frustrated by this growing trend, some of the biggest names on the web such as Wikipedia, Reddit and WordPress staged a <a href="http://www.theguardian.com/commentisfree/cifamerica/2012/jan/18/sopa-blackout-protest-makes-history">service blackout</a> in 2012, amid the public protest against the Stop Online Piracy Act.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=552&fit=crop&dpr=1 754w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=552&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/62673/original/8q87v7bm-1414098382.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=552&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Wikipedia was part of a widespread internet blackout in 2012 to protest copyright reform bills that some argued would stifle the free exchange of ideas.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/lightwerk/6718787953/in/photolist-beHxzB-61Ksea-beVuv2-beXBSR-beVewZ-beJmQp-beJxVn-bnwfni-beXuK8-bnwfjt-bmUQJw-bUqRHK-ckzhgE-ckzhmG-ckzhcJ-bUqRMv-bzPF9k-9FtToP-oNsRmh-nYyHWe-beL6zc-2efoxS-beT2jD-beSbgv-dqihQW-619JB6-uzuLW-beXDPt-bf8w5K">Ray Weitzenberg/Flick via CC BY SA</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Even when copyright reform seeks to lower protective standards, it has caused unintended consequences. Although Congress has written well-intended copyright exceptions into laws, courts and businesses have later reinterpreted these exceptions as the maximum limits on the use of copyrighted works. </p>
<p>In addition, short-term victories in copyright battles have ushered in dramatic changes to business practices that result in long-term losses. In 2001, freelance authors successfully convinced the Supreme Court to require newspapers to obtain permission before including their articles in electronic databases. Today, however, authors are routinely required to sign away their rights before publication.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=779&fit=crop&dpr=1 600w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=779&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=779&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=979&fit=crop&dpr=1 754w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=979&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/62403/original/n82swn5w-1413908239.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=979&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The phonograph, which wasn’t originally intended to be used for entertainment, demonstrates how hard it is to craft good copyright law since we don’t always know how a new technology will be used in the future.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>An iterative process</h2>
<p>In view of the continued disagreement and potential unintended consequences, it is more accurate to treat copyright reform as an iterative process. If the past is any guide, reformers will need to remain vigilant. Even with initial success, they will still have to mobilize to protect their gains while continuing to challenge the undesirable status quo.</p>
<p>To complicate the reform process, predicting the future use or impact of new technology without the benefit of hindsight is virtually impossible. Even though commentators have widely documented the changes brought about by the latest technologies, nobody knows exactly how they will be used in the future.</p>
<p>As Andrew Shapiro <a href="http://books.google.com/books/about/The_Control_Revolution.html?id=4qzZAAAAMAAJ">reminds us</a> in The Control Revolution, the phonograph was not designed for entertainment but to record one’s thoughts. The telephone was intended to pipe music from faraway concert halls into individual homes. If people were asked in the 1960s, they certainly would not have anticipated that television would become a modern-day babysitter. At this point, who knows how cloud computing, 3D printers and robots will eventually be used?</p>
<h2>Flexible, forward-looking reform</h2>
<p>When considering copyright reform, Congress must take into account both the unpredictability of new technology and the unintended consequences new laws will inevitably generate.</p>
<p>First, laws have to be open-ended, flexible and forward-looking, keeping in mind that new technology will lead to changing markets, lifestyles and consumer preferences. While our common law system will facilitate adaptation, legal developments are simply too slow to keep up with technological change.</p>
<p>Second, even though the copyright industries tend to lobby for complicated contract-like provisions to protect their investments, laws should avoid locking in standards that favor incumbents. The more laws are developed with specific business and regulatory models in mind, the less adaptable they are to disruptive technology.</p>
<p>Third, as important as it is to develop future technology, Congress should not lose sight of the authors’ specific needs. There has been a wide debate on what copyright holders or technology developers want, but much less discussion on what authors actually need. No matter how successful our financial or technological environment is, authors still need sufficient economic and non-economic support to engage in full-time cultural production.</p>
<p>Finally, laws should anticipate the global participation of individual users. Today, people are no longer just watching programs on television or listening to CDs. Instead, they write emails, listen to music stored in the cloud, generate mash-ups of worldwide digital content and watch foreign shows recommended by distant friends. Any laws that fail to consider these activities and the related consumer expectations will quickly become obsolete.</p><img src="https://counter.theconversation.com/content/32782/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter K. Yu does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Congress has recently stepped up its efforts to reform the copyright system, which is woefully inadequate to deal with today’s rapidly evolving communication technologies. These efforts began early last…Peter K. Yu, Kern Family Chair in Intellectual Property Law, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/335852014-11-05T19:23:34Z2014-11-05T19:23:34ZA real victim of online piracy is Australian indie cinema<figure><img src="https://images.theconversation.com/files/63504/original/wzwr7s4n-1414985334.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Sapphires (2012), starring Jessica Mauboy, had attracted 123,030 illegal downloads worldwide by October 2013.</span> <span class="attribution"><span class="source">APP/Dan Himbrechts</span></span></figcaption></figure><p>Game of Thrones downloaders need not fear data retention plans, <a href="http://www.smh.com.au/federal-politics/political-news/game-of-thrones-downloaders-need-not-fear-data-retention-plans-says-malcom-turnbull-20141031-11etrn.html">said</a> Communications Minister Malcolm Turnbull last Friday. </p>
<p>Perhaps there is nothing for pirates to fear from Turnbull, but the Attorney-General George Brandis, is a dreadnought of a different disposition. <a href="https://theconversation.com/turnbull-agencies-wont-get-access-to-more-forms-of-data-33635">Data retention</a> will go a long way to facilitate <a href="https://theconversation.com/brandis-leaked-anti-piracy-proposal-is-unrealistic-29709">his crusade</a> to crack down on internet piracy. </p>
<p>But who is the biggest loser in this modern epidemic of online piracy?</p>
<p>Speaking at the Australian Digital Alliance forum on February 14 this year, Brandis <a href="http://www.attorneygeneral.gov.au/Speeches/Pages/2014/First%20Quarter%202014/14February2014-openingoftheAustralianDigitalAllianceForum.aspx">said</a> that he stood on the side of content creators in the copyright debate. </p>
<p>Perhaps he should have said “rights holders” because content creators are not necessarily the owners of copyright. Ask any wage slave in an animation film factory.</p>
<p>Brandis told the forum:</p>
<blockquote>
<p>I firmly believe the fundamental principles of copyright law, the protection of rights of creators and owners did not change with the advent of the internet and they will not change with the invention of new technologies. </p>
</blockquote>
<p>Last week, the commissioner of the Australian Federal Police, Andrew Colvin, confirmed “<a href="http://www.smh.com.au/federal-politics/political-news/game-of-thrones-downloaders-need-not-fear-data-retention-plans-says-malcom-turnbull-20141031-11etrn.html">absolutely</a>” that the legislation could be used in the war on illicit downloading of copyright content.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=887&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=887&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=887&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1115&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1115&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63506/original/5ffrz5tg-1414985520.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1115&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Movie poster for Dallas Buyers Club.</span>
<span class="attribution"><span class="source">Truth Entertainment</span></span>
</figcaption>
</figure>
<p>Knowing the data is there will aid fishing expeditions by interests such as the <a href="http://www.antonelli-law.com/Dallas_Buyers_Club__LLC.php">Dallas Buyers Club LLC</a>, the rights owner of the Oscar-winning film <a href="http://www.imdb.com/title/tt0790636/?ref_=fn_al_tt_1">Dallas Buyers Club</a> (2013). They have been pursuing online pirates through the courts in Australia, represented by Antonelli Law.</p>
<p>Dallas Buyers Club LLC use the powers of preliminary discovery, hoping to force internet service providers (ISPs), such as iiNet, its subsidiaries Adam Internet and Internode, Dodo and Amnet Broadband, to reveal the identity of owners of IP addresses that have illegally downloaded copies of Dallas Buyers Club.</p>
<p>If the court action succeeds, identified individuals will receive letters demanding substantial cash licence fees in lieu of further court action. Dallas Buyers Club LLC has followed this practice in several overseas jurisdictions with some success, but the practice has been outlawed in the UK.</p>
<p>Back to the biggest loser … Certainly, the rights holders of big successes in cinema or television suffer losses. </p>
<p>The Australian Content Industry Group (ACIG), <a href="http://www.bsa.org/country/%7E/media/Files/Research%20Papers/enAU/piracyimpact_australia.ashx">relying on work</a> by public policy researchers Sphere Analysis that was published in 2011, has made some claims. </p>
<p>ACIG say the annual value of loss of retail sales to Australian content industries was A$900 million in 2010, and the impact of internet piracy to Commonwealth Government revenues was A$190 million. In addition, some 8,000 jobs were lost in the content industries sector as a result of Internet piracy.</p>
<p>However, the methodology that reached these conclusions was not revealed in detail and so, for many, this was an ambit claim from a partisan player. Nevertheless, while some will claim piracy as a victimless crime, it does have an economic impact, however hard it is to quantify.</p>
<p>According to <a href="http://www.prweb.com/releases/2013/11/prweb11295125.htm">a survey</a> by US data-protection company CEG TEK, in the 30 days leading up to the opening of the American Film Market in November last year, <a href="http://www.imdb.com/title/tt1535108/?ref_=fn_al_tt_1">Elysium</a> (2013) was downloaded a massive 162,000 times a day. That amounted to more than 4.8 million times over the sample period. </p>
<p>How directly the downloads convert to lost ticket sales is unclear. </p>
<p>At a conversion rate of 50% at a ticket price of US$15, that is US$36 million lost. Elysium, with a production budget of US$115 million still grossed US$286,140,700 worldwide so the producers didn’t go broke. But after the exhibitors and distributor took their sizable cuts, the net revenue for the film would be small.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=889&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=889&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=889&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1117&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1117&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63505/original/d7sw2rgj-1414985422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1117&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Movie poster for 100 Bloody Acres.</span>
<span class="attribution"><span class="source">Cyan Films</span></span>
</figcaption>
</figure>
<p>But the biggest losers, the rights holders who are really feeling it in their back pocket, are the independent producers, the rights holders to Australian films such as <a href="http://www.imdb.com/title/tt1673697/?ref_=fn_al_tt_1">The Sapphires</a> (2012) or <a href="http://www.imdb.com/title/tt2290065/?ref_=fn_al_tt_1">100 Bloody Acres</a> (2012). </p>
<p>The same survey by CEG TEK, based on sampling peer-to-peer torrent services, discovered that little Aussie gem The Sapphires, at 46th out of the 100 most downloaded shows of the 2013 sample and 100 Bloody Acres at 95. </p>
<p>The Sapphires was the top grossing Australian film at the Australian box office in 2012, taking A$14.5 million. In October 2013, it was still attracting a lot of illegal downloads – 123,030 worldwide and 18,720 in the USA. That’s forgone revenue of just under A$1 million.</p>
<p>But coming in at 95, with 1,929 downloads a day or 57,870 for the month was 100 Bloody Acres. It was released on 12 screens in the US in June 2013 but took only US$6,388. In Australia, it made A$18,356 at the box office corresponding to a paying cinema audience of around 1,300 all up. </p>
<p>In the CEG TEK sample, about 50% more people illegally down loaded 100 Bloody Acres every single day, than saw it in the cinema. And compared to gross Australian and US revenues of A$24,744, the illegal downloads were worth perhaps A$434,000 in box office sales. Viewed in this way, the impact of piracy is devastating to small producers and genre films.</p>
<p>So in the Australian case at least, the ones really suffering from piracy are the small independent producers such as Cyan Films, not so much the big players like Village Roadshow.</p>
<p>Piracy such as that suffered by The Sapphires and 100 Bloody Acres has the potential to kill the Australian film industry. And while it is said that patriotism is the last refuge of the scoundrel, it might be the best hope for Australian film-makers.</p><img src="https://counter.theconversation.com/content/33585/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vincent O'Donnell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Game of Thrones downloaders need not fear data retention plans, said Communications Minister Malcolm Turnbull last Friday. Perhaps there is nothing for pirates to fear from Turnbull, but the Attorney-General…Vincent O'Donnell, Honorary Research Associate of the School of Media and Communication , RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/305912014-08-19T05:17:53Z2014-08-19T05:17:53ZThe Premier League’s video clampdown is another struggle to monetise social media<p>As a new football season starts, the Premier League has stated its intent to stop fans from posting unofficial videos of goals online. The <a href="http://www.bbc.co.uk/newsbeat/28796590">Premier League has pointed out</a> that the videos of goals and other match highlights, which get shared on social media, is copyrighted and therefore illegally uploaded.</p>
<p>This isn’t a new problem – the internet has changed viewing habits forever. The increasing number of people watching live broadcast events <a href="http://www.econtentmag.com/Articles/News/News-Feature/From-the-Olympics-to-the-World-Cup-Sports-Go-Online-97602.htm">through mobiles and tablets</a>, especially among certain demographics, is a rising issue that broadcasters must address. But as well as presenting them with a challenge, it also presents advertisers and broadcasters with an opportunity to capitalise on the changing market and habits of viewers. </p>
<p>The 2014 FIFA World Cup broke online streaming records around the world with <a href="http://www.fifa.com/aboutfifa/organisation/news/newsid=2401405/">5.3m unique viewers</a> watching at peak viewing. So, the challenge for broadcasters is how to maintain a compelling media experience, while monetising the events to get the return on the investment that they have paid for the TV and online streaming rights of these games. </p>
<p>Broadcasters have their own mobile apps and websites where subscribers can officially stream services. But they are competing with alternative social media platforms like Vine, Snapchat and the established Facebook, Twitter and YouTube, where members of the public can upload content illegally that’s free for the non-paying public around the world to watch. And so broadcasters are trying to muster their contractual and legal clout to manage the violations of recorded videos posted on websites such as Vine. </p>
<p>The issue is an old one in internet terms of where copyright material that is shared through a social media or a search engine is violating the original broadcasters terms and conditions. You can post links to official streams and you can list and search video clips, but this breaks down when copies can be put on sites such as Vine that specialise in momentary clips for sharing. </p>
<p>But does a short 15 or 30-second looping clip constitute streaming a game or providing a video service? It’s difficult to see – especially from a fan’s point of view – how this is intended to violate copyright, rather than the social network experience it is typically intended to foster. </p>
<p>It’s ironic that where the digital world, which disrupted the traditional business model, is now in effect disrupting itself through alternative digital platforms competing with each other for for the online viewing and social media public.</p>
<p>The two root issues that remain are the open nature of social media platforms and the challenge this creates for copyright content that prevents its widespread usage. Another is the impact of virtual business where, like the Uber taxi service, the digital world can empower anyone to be a broadcaster or a business without any physical or commercial attachment. </p>
<p>The monetisation model in the digital world is potentially at odds with the traditional model that was based on legal contracts. Traditionally, content rights were negotiated and paid for upfront by a media company that then controlled that content. The new online world, however, is driven by the here and now, with real-time social interactions being exchanged “live”. </p>
<p>It’s a world of difference in many ways from an upfront and static contract model that seeks to direct viewing traffic towards itself. This kind of managed viewing control by providers of content is a different social dynamic to the control given to social media consumers who often see it as their right to choose who they contact and what they want to see and do – with no binding contracts. </p>
<p>Mainstream broadcasters will struggle to prevent this so long as their sites are not integrated with social media websites. The problem and opportunity is that the barriers to entry for providing and capitalising on these services and switching between them are very low in the cyber world. Consumers can just click to another platform as and when they like.</p>
<p>But we are still in the early days of the multimedia social world and these battles will rumble on as digital platforms seek to own parts of the user experience and the monetisation models from this. Meanwhile traditional media will seek to maintain as much ownership and rights as possible.</p><img src="https://counter.theconversation.com/content/30591/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Skilton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As a new football season starts, the Premier League has stated its intent to stop fans from posting unofficial videos of goals online. The Premier League has pointed out that the videos of goals and other…Mark Skilton, Professor of Practice, Warwick Business School, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/301982014-08-08T05:34:08Z2014-08-08T05:34:08ZWhy Australians should back Turnbull in the stoush over copyright<figure><img src="https://images.theconversation.com/files/56027/original/rcswntp2-1407473677.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Making ISPs liable for the actions of their users almost certainly won't help artists. </span> <span class="attribution"><span class="source">AAP/Joe Castro</span></span></figcaption></figure><p><em>Attorney-General George Brandis <a href="http://www.theage.com.au/federal-politics/political-news/george-brandis-contradicts-malcolm-turnbull-over-piracy-crackdown-payments-20140804-3d41s.html">is at loggerheads</a> with Communications Minister Malcolm Turnbull over <a href="http://www.ag.gov.au/Consultations/Documents/Onlinecopyrightinfringement/FINAL%20-%20Online%20copyright%20infringement%20discussion%20paper%20-%20PDF.PDF">proposed reforms</a> to the Copyright Act. Brandis wants ISPs to take more responsibility for copyright infringement by their users. Turnbull says that they shouldn’t be required to police their subscribers’ activities. Here’s how to understand what’s at stake in the debate.</em></p>
<p>Of all the reasons given to strengthen copyright law, the one that seems strongest is the moral argument by musicians, authors, artists and other creators that the internet is taking away their livelihood. </p>
<p>It is incredibly hard to become successful as an independent artist. </p>
<p>The majority of Australians who identify as professional artists earn <a href="http://www.australiacouncil.gov.au/resources/reports_and_publications/subjects/artists/artist_careers/do_you_really_expect_to_get_paid">less than A$10,000 per year</a> from their primary creative activity. Artists need to work second (and third) jobs to fund their creative work. Even then, their <a href="http://www.australiacouncil.gov.au/resources/reports_and_publications/subjects/artists/artist_careers/do_you_really_expect_to_get_paid">average income</a> is less than both professional and blue-collar workers.</p>
<p>Unsurprisingly, then, many artists support stronger copyright laws. <a href="http://www.abc.net.au/news/2014-06-17/game-of-thrones-piracy-records-illegal-downloads-australia/5528770">Everywhere we look</a>, Australians are downloading creative work without paying for it. Music industry executives like John Ferris, Head of Licensing at Ministry of Sound Australia, point to the massive profits of Google and YouTube, and <a href="http://www.crikey.com.au/2014/08/04/no-place-for-artists-in-online-copyright-debate/">bemoan the tiny royalties that artists receive in the digital age</a>.</p>
<p>Elsewhere, John Birmingham, author of <a href="http://en.wikipedia.org/wiki/He_Died_with_a_Felafel_in_His_Hand">He Died with a Felafel in His Hand</a>, notes that the writers who started with him have all fallen by the wayside. He is <a href="http://cheeseburgergothic.com/show/5984">the only one left from his cohort</a>. He blames the internet and rails against those who don’t respect creators and who use copyright works without paying. Birmingham frames this as a simple failure of decency.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56029/original/hp8prmf9-1407474407.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">jonsson</span></span>
</figcaption>
</figure>
<p>Artists and their representatives are right, of course: it <em>is</em> unfair that artists and creators can’t make a living from their art. Society probably would be a better place if creators could spend all day writing great novels and great songs, and not have to support themselves in other ways. </p>
<p>But it’s always been like this: Beethoven taught piano to the children of nobility, Bach earned his keep as an organist and choirmaster, not as a composer. The old joke about barkeeps and waitstaff being mostly underemployed actors and authors is a cliché because it has always been true.</p>
<h2>Making copyright stronger won’t help</h2>
<p>Unfortunately, making the copyright system more draconian by making ISPs liable for actions of their users almost certainly won’t help artists. </p>
<p>Copyright helps large producers and distributors in film, television and publishing industries. An individual artist is still more likely to win the lottery than make the big time. Those artists who do win the lottery win big – and those who don’t have to take other jobs.</p>
<p>Making copyright stronger is not going to fix this structural problem. </p>
<p>Since the 1990s the copyright system has been made more and more onerous – but most artists haven’t been getting any richer. Each one of these reforms has failed, and the new proposal is almost certainly going to be a bust. The government could impose the death penalty for copyright infringement and it still would not create a future where the bulk of people who want to be independent artists can reliably make a good living from their work.</p>
<h2>Higher internet prices, greater costs for providers</h2>
<p>At the same time, the current proposal will impose costs on communications providers like ISPs, search engines and cloud computing providers, as well as the everyday consumer. </p>
<p>Compliance costs and liability risks will drive some providers offshore. They will also increase the cost of internet access for everyone. This is, at heart, why Malcolm Turnbull disagrees with the Attorney-General.</p>
<p>The question is whether the possibility of greater protection for creators is worth the cost to our communications infrastructure. The answer depends on your perspective. </p>
<p>From the perspective of successful authors and artist representatives like Ferris and Birmingham, enhanced copyright protection is probably a good idea. There is no downside for them. They succeeded in the old media environment, and the Brandis proposal means that they may be able to hold on to that success for a while longer. Maybe.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/JVxe5NIABsI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">New technologies enable creators to reach massive audiences outside traditional industry structures.</span></figcaption>
</figure>
<h2>The internet enables creativity</h2>
<p>But from the perspective of the national interest, the proposal is a bad one. Harming the communications infrastructure is a bet against the future – and against those newly emerging creators who don’t follow the model of the past. </p>
<p>The internet has allowed a brand-new group of creators to emerge, like remix artist <a href="http://pogomix.net/">Pogo</a>, off-beat current affairs show <a href="https://thejuicemedia.com/">Juice Rap News</a> and the creators of video game channels on YouTube.</p>
<p>The internet makes it <a href="https://theconversation.com/hey-download-generation-your-future-is-up-on-youtube-439">easier than ever before</a> to be a creator and to build an audience for your works. </p>
<p>Some of these creators are being paid for their efforts – and some aren’t in it for the money. It’s not an exaggeration to say that we’re living in a Golden Age of Creativity, even if creators who won under the old media model are suffering.</p>
<p>As for professional creatives, things <a href="https://theconversation.com/you-want-fries-with-that-creative-careers-are-still-out-there-for-now-28314">really aren’t all that bad</a>. </p>
<p>Becoming a successful independent artist is still a worse bet than the lottery. But for the much larger group of artists working in arts industries and the <a href="http://media.crikey.com.au/dm/newsletter/dailymail_535b9e1cdeef1b7b6920519b70e23033.html#article_22321">even larger group of creatives working in other industries</a>, wages and <a href="https://theconversation.com/guess-what-creative-industries-jobs-are-okay-25201">job satisfaction</a> are actually substantially higher than the national average.</p>
<p>Some artists can’t adapt to the new environment. The good news is, there are many other ways to support artists other than via copyright-driven revenue: more investment in arts grants, better prizes, or other public subsidies. </p>
<p>The constant upward ratchet of copyright isn’t going to make any difference to these artists. It’s just going to hurt the infrastructure that we now rely on.</p>
<p>John Birmingham calls us “<a href="http://cheeseburgergothic.com/show/5984">freetards</a>”. But, in arguing against the Brandis proposal, we think that it’s important to look at the interests of all Australians, not one small set of special interests.</p><img src="https://counter.theconversation.com/content/30198/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Hunter previously received funding from the Australian Research Council and the American Council of Learned Societies for work related to this article.</span></em></p><p class="fine-print"><em><span>Nicolas Suzor is the Legal Lead of Creative Commons Australia, a non-profit organisation that provides free licences and tools that copyright owners can use to allow others to share, reuse and remix their material, legally.</span></em></p>Attorney-General George Brandis is at loggerheads with Communications Minister Malcolm Turnbull over proposed reforms to the Copyright Act. Brandis wants ISPs to take more responsibility for copyright…Dan Hunter, Professor of Intellectual Property and Innovation, Queensland University of TechnologyNicolas Suzor, Senior Lecturer, Faculty of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/297092014-07-28T03:00:03Z2014-07-28T03:00:03ZBrandis’ leaked anti-piracy proposal is unrealistic<figure><img src="https://images.theconversation.com/files/54982/original/fwbgyn73-1406511850.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Get ready to comment once Attorney-General George Brandis officially releases the Online Copyright Infringement Discussion Paper.</span> <span class="attribution"><span class="source">AAP/ Alan Porritt</span></span></figcaption></figure><p>The Australian Government has proposed Internet Service Providers (ISPs) monitor and punish Australians who download and infringe copyright.</p>
<p>In <a href="http://media.crikey.com.au/wp-content/uploads/2014/07/copyright.pdf">a discussion paper</a> circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law. If implemented, it would force ISPs to take steps to prevent Australians from infringing copyright. </p>
<p>What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.</p>
<p>The move comes in response to <a href="http://mumbrella.com.au/australia-leads-way-illegal-downloads-game-thrones-219249">claims that Australians are among the biggest downloaders</a> of films and television series. Under <a href="https://www.techdirt.com/articles/20140411/06564926879/hollywood-has-been-pressuring-australian-attorney-general-to-pressure-isps-into-being-copyright-cops.shtml">intense pressure from Hollywood and Foxtel</a>, the government wants to <a href="http://www.zdnet.com/au/australian-government-considers-graduated-response-to-piracy-7000029968">do something</a> to combat copyright infringement.</p>
<h2>Unlikely to help pricing and availability</h2>
<p>The problem is that this move is not likely to make things better. Similar schemes have been tried around the world, but there is <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322516">little evidence they actually work</a> to reduce copyright infringement.</p>
<p>This draft proposal does nothing to address the basic issue that Australians are not being fairly treated by the copyright industries. Compared to consumers in the United States, Australians <a href="http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=ic/itpricing/report.htm">pay more for digital downloads</a>, have <a href="https://theconversation.com/aussies-are-still-paying-over-the-odds-and-its-time-for-accc-action-27920">less choice in how they can access film and television</a>, face <a href="http://www.theguardian.com/news/datablog/2014/jun/30/australian-delayed-release-18-days">large delays</a> before content is released, and much foreign content is still <a href="http://www.zdnet.com/au/netflixs-australian-block-keeps-quickflix-going-7000012006/">not available at all</a> in Australia. </p>
<p>Recent research suggests that Australian consumers feel ripped off by distributors, and this is a <a href="https://theconversation.com/from-fare-evasion-to-illegal-downloads-the-cost-of-defiance-27978">key reason</a> why they choose to download films and television instead. If foreign film and television networks want to reduce illicit downloading, many think that their first step should be to provide <a href="https://theconversation.com/the-only-way-to-fix-copyright-is-to-make-it-fair-23402">better, cheaper, and more convenient</a> legal ways for consumers to pay for access.</p>
<h2>Unintended consequences</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=857&fit=crop&dpr=1 600w, https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=857&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=857&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1078&fit=crop&dpr=1 754w, https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1078&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/54943/original/95rgrdvk-1406343307.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1078&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Copyright infringement notices are not always accurate.</span>
<span class="attribution"><span class="source">University of Washington Computer Science & Engineering</span></span>
</figcaption>
</figure>
<p>Meanwhile, the draft proposal is likely to have serious unintended consequences. It is likely to raise the price of internet access in Australia, as ISPs will pass on the <a href="http://www.zdnet.com/costs-must-be-fixed-first-in-piracy-solution-comms-alliance-7000028227/">increased costs</a> of monitoring and enforcing copyright.</p>
<p>The proposals will also cause major uncertainty in copyright law. The government plans to overturn the recent <a href="https://theconversation.com/iinets-hollywood-ending-what-does-its-court-victory-mean-for-copyright-law-6577">iiNet case</a>, where the High Court ruled that ISPs are not responsible when people use BitTorrent to download films. The Court sent a strong message that iiNet could not be liable because it did not control BitTorrent protocols and did nothing to encourage their use.</p>
<p>The iiNet case confirmed a basic principle of copyright law: service providers are only responsible for the conduct of third parties when they have some control over their acts. The leaked proposal will remove this limit and, with it, the ability of the law to clearly distinguish between real wrongdoers and companies who merely provide general purpose services to consumers. </p>
<p>This will massively increase the potential risks for companies that provide legitimate services. As well as ISPs, these include hardware manufacturers, cloud service providers, libraries, schools and universities, and many others.</p>
<p>Requiring service providers to act as copyright police is also dangerous. It <a href="http://eprints.qut.edu.au/43926/">removes the safeguards</a> that our courts provide in ensuring the law is applied fairly. Copyright law is incredibly complicated, and allegations of infringement made by copyright owners against consumers have historically been <a href="https://torrentfreak.com/google-discarded-21000000-takedown-requests-in-2013-131227/">notoriously</a> <a href="http://bits.blogs.nytimes.com/2008/06/05/the-inexact-science-behind-dmca-takedown-notices/?_php=true&_type=blogs&_r=0">inaccurate</a>. ISPs are not well placed to investigate these claims, and there is a serious risk that consumers might be unfairly punished under these proposals.</p>
<h2>Consumers left out of the debate</h2>
<p>The proposals create a strong incentive for ISPs to agree to rightsholder demands to protect their interests. They do not, however, provide much protection for consumers, who will have no seat at the negotiating table. </p>
<p>The proposals are also ominously vague. They include the threat that more regulations will be introduced if ISPs do not go far enough to protect copyright. Eventually, this could also turn into a so-called “three-strikes” regime, where entire households are disconnected from the internet after several allegations of infringement.</p>
<p>Despite having been <a href="http://www.abc.net.au/news/2014-02-14/george-brandis-federal-government-to-target-internet-piracy/5261404">in the works for at least six months</a>, this leak is the first time the public has been able to see any details. Meanwhile, the Attorney-General has been meeting with <a href="http://scott-ludlam.greensmps.org.au/content/media-releases/estimates-who-advising-george-brandis-copyright-policy">copyright lobbyists</a>, but apparently not yet with either <a href="http://www.zdnet.com/au/australian-government-considers-graduated-response-to-piracy-7000029968/">consumer groups</a> or with <a href="http://www.abc.net.au/news/2014-02-26/lemay-internet-piracy-talks-must-include-the-consumers/5285020">telecommunications companies</a>. </p>
<p>It seems the Attorney-General’s Department didn’t even listen to Malcolm Turnbull’s Communications Department, which has stressed the importance of ensuring that Australians have <a href="http://www.zdnet.com/turnbull-may-soften-brandis-hard-line-on-copyright-infringement-7000030281/">increased access to legitimate sources of content at a fair price</a>.</p>
<p>Once the leaked proposals are officially released, Australians will have less than a month to comment. Since this is likely to impact on everyone, we suggest that you add your voice to the debate - but you’ll have to be quick.</p><img src="https://counter.theconversation.com/content/29709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Suzor is the Legal Lead of Creative Commons Australia, a non-profit organisation that provides free licences and tools that copyright owners can use to allow others to share, reuse and remix their material, legally.</span></em></p><p class="fine-print"><em><span>Alex Button-Sloan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Government has proposed Internet Service Providers (ISPs) monitor and punish Australians who download and infringe copyright. In a discussion paper circulated by Attorney-General George…Nicolas Suzor, Senior Lecturer, Faculty of Law, Queensland University of TechnologyAlex Button-Sloan, Research Assistant, Faculty of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.