Attorney-General George Brandis and Communications Minister Malcolm Turnbull tabled a new legislative proposal to address internet piracy in Australia in a cabinet meeting on Tuesday. The meeting was presented with a submission that is informed by a lengthy period of consultation that involved the entertainment industry, internet providers, consumer groups and the public.
Prior to the presentation of the proposal, a Senate legal and constitutional affairs legislation committee was held in May 2014, at which Mr Brandis explained that "Australia lacks any protection against online piracy", unlike other prominent Western nations in North America and Europe. The Abbott government then released the Online Copyright Infringement Discussion Paper on 30 July that was followed by a warning of a major online crackdown fromMr Turnbull in September.
Described as "minimalist" by the Sydney Morning Herald on Tuesday, the main elements of the proposed reform package are:
- Rights holders will be able to block access to piracy websites, both domestic and international, through the Federal Court.
- An opportunity for ISPs and rights holders to formulate their own anti-piracy code, rather than the government forcing one upon them.
- A "graduated response scheme", whereby a series of warning notices will be sent to ISP customers who have allegedly engaged in unauthorised downloading before legal action is taken.
The meeting was followed by a letter addressed to internet service providers (ISPs) and rights holders, sent on Wednesday morning, that asked recipients to develop the code mentioned in the proposal, "with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997 (the Telecommunications Act)." However, the letter also issues a deadline for the code, 8 April 2015, and states that a "binding arrangement" will be prescribed by the government or the ACMA if the code is not finalised by the due date.
Responses to the government's actions this week have been mixed. According to ABC radio's PM program, Mr Brandis and Mr Turnbull's approach is "softer" than expected and is "almost certain to disappoint both camps". The program's first interviewee was cyber crime investigator Michael Speck, who was overwhelmingly disgruntled with the outcome, calling it "touchy, feely" and a "huge win for the pirates". Mr Speck said that the urgent need for a legislative framework for ISPs has not been met, and believes that pirates and lawyers will be the only beneficiaries if the government's new laws are passed.
Australian Digital Alliance executive officer Trish Hepworth, a representative of Australian copyright owners, echoed Mr Speck's concerns, and questioned how effective the "highly problematic" laws would actually be. A particular issue raised by Ms Hepworth is the possibility of innocent parties inadvertently becoming "responsible for other people's copyright infringement".
Both Ms Hepworth and chief regulatory officer of iiNet, Steve Dalby, believe that the supply side of the equation is where the best solution lies. Both argue that Australians are prepared to pay for content if critical matters such as affordability and timeliness are addressed. A November 2014 Choice survey revealed that Australian consumers were most often driven to piracy by price and timeliness of content.
iiNet, Australia's second largest ISP—which won a High Court case against Hollywood in 2012—is one of the telecommunications companies that is relieved by the government's official response. They were backed by their peak body, the Communications Alliance, whose CEO, John Stanton, welcomed a "balanced approach". ISPs feared that content owners would get their way, and service providers would be forced by the government into a policing role.
Although Electronic Frontiers Alliance executive officer Jon Lawrence informed Fairfax Media on Wednesday that downloading is "simply a civil issue and it's the copyright owner's problem if they want to come after you", the first Australian case in which rights holders have applied to the Federal Court asking ISPs to reveal the identities of downloaders has not yet been heard. Scheduled for February 2015, the Dallas Buyers Club case will lead to fines of up to A$5,000 if successful, and could make an impact that would toughen the softness of the government's proposed approach. The Labor Party's official position is still forthcoming.