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New copyright laws are not the answer to illegal downloads

News Ltd chief Kim Williams took aim at ISPs and the NBN over illegal downloads, but new copyright laws are not the answer. AAP

Earlier this week, Kim Williams, CEO of News Limited, spoke at the Australian International Movie Convention on the Gold Coast and called for new copyright laws to better protect digital property rights.

Back in February, my colleague and friend Bruce Arnold opined a similar view, stating that in “the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question”.

Williams complained the NBN would make illegal file-sharing and downloads worse and called upon the NBN to be included in any future code and be obligated to take reasonable steps to stop piracy. Additionally, he requested ISPs to take stronger action against unlawful activity on their networks.

But what can be done and are new laws really the solution? ISPs, as the focal point of the pipe which delivers content, certainly play a major role in many issues of online trust and safety.

In this instance we need to look at whether ISPs have either contributory or vicarious liability. This could be based on if an ISP knows or has reason to know of copyright infringement and induces, causes or materially contributes to the infringing conduct of another. But just as ISPs could do more to stop malicious software, so too they could contribute to and could assist in the reduction of copyright theft. Recent legal precedence is illuminating.

After three years of legal argument, the Roadshow v iiNet case ended with the High Court unanimously deciding iiNet never supported or encouraged unauthorised sharing or file downloading by its users. The Court held that an ISP “is not to be taken to have authorised primary infringement of a cinematograph film merely because it has provided facilities for making it available online to a user who is the primary infringer”.

Many content rights holders have lobbied for strategies to address online copyright infringement, including the implementation of a graduated response scheme designed to compel ISPs to forward notices and apply sanctions against users the rights holders allege are engaging in copyright infringement, for example, via peer-to-peer file sharing.

The ability for a rights holder to be able to send a copyright infringement notice to a relevant ISP for forwarding on to their subscriber is a good idea.

But in the iiNet case, the High Court determined “[i]t was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement”.

The next biggest players after ISPs are search engines. Search engines trawl content on the web and reproduce text, images and sound recordings. Copyright law raises a number of challenging legal issues for search engines as they do not own content, but instead organise, rank and display vast amounts of material that is posted on, or to websites. Other copyright issues for search engines include caching of copyright material, the extent to which fair use applies, authorisation liability and the impact of safe harbour provisions.

But what about other industries? The recent Finkelstein Report discussed charging for online content and found highly-differentiated online content would normally command a scarcity premium.

“For such content, charging for access could work provided that the producer can retain control over the related property right. But it may not be an easy proposition given the current level of piracy and unauthorised use of content on the internet.”

Online media companies are also similar to search engines and generate revenue by selling advertising.

So what does the government think? Principle 8 of the Australian Government Convergence Review Interim Report states “Australians should have access to the broadest possible range of content across platforms, services and devices”. There is no mention though of copyright protection or the role of ISPs and search engines.

And the NBN - well, that will transform the way we live and operate in the online environment - but we can hardly blame it for copyright infringement. NBN Co are an important stakeholder, but do not hold the answer.

Clearly, there is a problem. Williams raises some valid concerns. We need industry to collaborate with government to assist content rights holders to be able to enforce their copyright and change the behaviour of those who engage in online copyright infringement.

New laws are not the answer. Rather, we need to look at education, technical mechanisms, licensing solutions and responsibility of ISPs and search engines to find a workable balance between the right to own and creative content and the ability of users (and intermediaries) to access and reuse such content.

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