Australians may get their own Stop Online Piracy Act #SOPA: Christmas Time for Copyright Owners

Matthew Rimmer

Christmas Tree, Parliament House of Australia, Photo — Matthew Rimmer

Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies.

There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull.

In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners:

Things that don’t make money:

Complaining about piracy.

Calling your customers thieves.

Treating your customers like thieves.

In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests.

The Internet Filter

Information Doesn’t Want to be Free, Cory Doctorow

The proposal to give copyright owners the power to block websites is highly controversial. The Australian Government have devised a local version of the Stop Online Piracy Act — nicknamed #SOPA. There is a concern that such a power will interfere with civil liberties, traditional freedoms, and Internet rights. There is also an anxiety that copyright trolls will abuse such a scheme. The Australian Government has not explained what safeguards and protections will be in the bill.

Malcolm Turnbull has been super-sensitive to criticisms of the copyright regime. He was incensed by questions from the Fairfax journalist Ben Grubb about whether the legislation was an internet filter:

That’s nonsense Ben. There’s no internet filter here at all. What on earth are you talking about… What we’re, look, what we are simply doing is proposing to amend the … we’re going to amend the Copyright Act to make it more straightforward for rights owners to do what they can do now, which is to seek an order that access be prevented’ to a site that is infringing content. Now the reason for the legislative provision is to make it available, is to enable you to get a remedy against an ISP -in other words to get an order against an ISP whose costs would have to be covered and so forth to block access to an overseas illegal download)…, uh, pirate site. I’ll just use the word pirate because it’s easy we understand what we’re talking about. So if you have, you know, bengrubbdownloads.com.au in Australia and you are happily streaming, you know, unlicensed copies of movies, then this amendment would have no relevance to you because the rights owners can go after you directly.

Critics of the regime have been unconvinced by such sophistry, and have been of the view that blocking websites amounted to an internet filter.

Professor Dan Hunter from Swinburne University has commented that blocking websites is bad for Australia’s digital economy. He observed that ‘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.’

The Copyright Code

The Australian Government has given an ultimatum to internet service providers to co-operate with copyright owners or else. If internet service providers refuse to co-operate within four months, the Australian Government will be able to impose its own industry scheme. The Ministers explained:

The Attorney-General and the Minister for Communications have written to industry leaders requiring them to immediately develop an industry code with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997. The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content. The Minister and the Attorney-General expect strong collaboration between rights holders, internet service providers (ISPs) and consumers on this issue. A copy of the letter to the industry leaders is attached. Failing agreement within 120 days, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

Such a proposal involves a striking combination of copyright law and media law. Internet service providers face a Hobson’s choice — they can either submit to an industry code with copyright owners in a short time frame, or else have the Federal Government impose an industry code upon them.

Dr Nicolas Suzor and Eleanor Angel from Queensland University of Technology have provided an incisive analysis of the regime:

ISPs and copyright owners have 120 days (over the holiday period) to come to agreement on an issue that they have been at loggerheads over for the past five years. The government hasn’t given ISPs much negotiating power, either. The clear threat is that if ISPs don’t give the industry what it wants, the government will do it for them. These types of industry codes can be an effective way to regulate, but the only way they will reflect the overall public interest is if consumer groups are also given a seat at the negotiating table. We also need transparency and continual monitoring to ensure the scheme is not being abused, and public interest groups must have the power to effectively protect end users. In this proposal, consumer groups are not invited, and rightsholders hold all the power.

The Coalition Government’s tactics and strategies in this area are crafty. Professor Susan Sell has highlighted the use of soft power in copyright policy-making. This is a classic instance of trying to use industry codes and private agreements to achieve copyright goals. There will be much debate over whether the new scheme will constitute an Internet Tax.

Consumer Rights

Australian consumers have been let down by the copyright proposals. There is no defence of fair use, even though such a defence had been recommended by the Australian Law Reform Commission. There is no policy action on IT pricing rip-offs by copyright owners and information technology owners. Furthermore, the Government has failed to provide for a general safe harbour for intermediaries. As a result, Australian consumers are third-class citizens in the digital economy — lacking the rights and privileges of their counterparts in the United States.

The Coalition Government has not extended the safe harbour for intermediaries such as search engines, social media, and internet video sites. Malcolm Turnbull noted: ‘Given that this is related to broader issues than just online copyright, this proposal will not be pursued at this time.’ He stressed: ‘The Government expects that schools, libraries, search engines and wifi providers will continue to take steps to reduce online copyright infringement on their systems.’ Such a decision represents a public policy failure for Google — which had been heavily lobbying the Federal Government for an extended safe harbour. Google’s Digital Alliance has protested against the decision. However, the Coalition Government has shown little sympathy for Google and other information technology companies — especially given the scandal over tax avoidance in the new economy. Moreover, the Coalition Government has been keen to please Rupert Murdoch — who has called Google “Kleptomaniacs” in the past.

Nonetheless, such an approach to intermediary liability in respect of copyright law is of concern. It is outrageous that Malcolm Turnbull expects that schools and libraries will be copyright cops and police copyright infringement on their networks. Such a proposal will interfere with the mission of schools and libraries to provide access to knowledge.

Although the Coalition Government emphasized that timely access to affordable copyright content was key to addressing copyright infringement, the policy package provides no legislative or administrative proposals to address that issue. Turnbull sought to explain why the Coalition Government had not responded to the IT Pricing inquiry: ‘The Inquiry raised significant public awareness of the issue of price disparity and brought to the attention of Australians a range of options and opportunities available to level the playing field.’ He noted: ‘The Government agrees that Australian consumers should be empowered to seek out goods and services at the best available price, consistent with the measures being introduced for online copyright.’ Turnbull observed that ‘there are also a number of other processes underway within Government including the Competition Policy Review (the Harper Review) and the Government’s consideration of its response to the Australian Law Reform Commission’s report into Copyright in the Digital Economy.’ While the Coalition Government has deferred its response to the IT Pricing inquiry, it has rushed ahead with its proposals to enhance the rights and remedies of copyright owners.

Political Responses

In response, the Australian Labor Party has lambasted the proposal. In a powerful critique, Jason Clare MP has maintained that the Abbott Government does not understand the Internet:

The Abbott Government has made it clear it doesn’t understand the internet or its users. Senator Brandis demonstrated this with his complete inability to explain metadata earlier this year. Malcolm Turnbull is about to buy an ageing copper network because he thinks that by 2023 the median household in Australia will only require 15 Mbps.

Jason Clare argued: ‘It is clear that action is needed both to deter piracy, and to encourage access to legitimate content.’ He also wondered whether the proposals of the government would be effective: ‘Site-blocking is unlikely to be an effective strategy for dealing with online piracy’. Jason Clare maintained that ‘the Government has passed the buck back to industry, asking rights holders and ISPs to reach an agreement among themselves’. He contended: ‘Any crackdown on the infringement of copyright needs to be accompanied by changes to make copyright law fairer, clearer, and more in keeping with public expectations’. In his view, ‘The Government should look after the interests of consumers.’

The Australian Greens have also been highly critical of the copyright proposals of the Coalition Government. Senator Scott Ludlam has commented:

The Greens will not support amendments to the Copyright Act to allow rights holders to apply for a court order requiring ISPs to block access to a website. Such a move would be a defacto Internet filter and would allow rights holders to unilaterally require websites to be blocked. This kind of Internet filter would not be effective at all, due to the widespread availability of basic VPN software to evade it.

Senator Ludlam was also of the view that the ultimatum for a copyright code was unjust: ‘The Australian ISP and content industries have continuously failed to successfully negotiate a shared approach to copyright infringement over a period of at least three years, due in large part to the unwillingness of copyright holders to be flexible in their position.’ He observed: ‘In this context, the Government’s requirement that a joint code be developed within 120 days is farcical.’ In his view, ‘This is not enough time to develop a code.’ Senator Ludlam lamented that ‘the Government has not specifically allocated a role for public interest organisations to have a place at the negotiating table’, even though ‘users will be the ones most affected by this new code.’ He concluded: ‘Any industry code will be easily evaded by copyright infringers and will not address the real issue: The lack of timely, affordable availability of content in Australia, which other markets such as the US already enjoy.’

CHOICE Australia — the leading consumer rights’ group in Australia — was also disappointed by the copyright proposals. Alan Kirkland was wary of ‘an industry-run internet filter to block ‘offending’ websites’. He commented:

We know that internet filters don’t work. This approach has been called ineffective and disproportionate by courts overseas, and it risks raising internet costs for everyone.

Kirkland said that there was a need to fix the availability, and the high prices in respect of copyright works.

The Communications Alliance has been cautious about the Coalition Government’s copyright plans.

Pirate Party Australia has denounced the new copyright regime. President of the Pirate Party, Brendan Molloy, has commented:

This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportionate, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment.

Deputy President, Simon Frew, added: ‘Website blocking is censorship, plain and simple.’ He commented: ‘By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds.’

The Institute of Public Affairs has also expressed reservations about the proposed copyright regime. Chris Berg commented:

The government’s proposal to block websites that infringe copyright is an internet filter and a threat to free speech. This is nothing more than an internet filter, of the sort which the Coalition proudly opposed when it was proposed by the Rudd and Gillard governments. There is no reason to believe that this will reduce copyright infringement in any material way.

Such criticism is notable — given that the Institute of Public Affairs is often an ally and a friend of the Coalition Government, across a range of policy fields.

The Future of the Internet

It will be interesting to see what the Australian Senate will make of the Coalition Government’s proposals in respect of a copyright crackdown in 2015. The Australian Senate has been compared to the Star Wars’ Cantina — such is its diversity and variety. Much will depend upon cross-benchers like Nick Xenophon, the Palmer United Party, Family First, the Liberal Democratic Party, and various micro-parties and independents.

The Coalition Government’s copyright proposals will further enhance the private power of copyright owners in respect of the governance of the Internet. Bernard Keane worries: ‘We’ve thus arrived at the fully fledged war on the internet by this government that some of us have long been predicting, a war motivated by commercial interests and the never-satisfied greed of security agencies for more powers of surveillance and control, and a deep and abiding fear of what citizens will do with communications technology that is no longer controlled by governments.’ This is disturbing. The Internet will be increasingly subject to the rule of private sovereigns. As Tim Berners-Lee says, we need a Magna Carta to protect an open and accessible Internet — rather than a copyright crackdown.

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.

Matthew Rimmer, ‘Australians May Get their Own SOPA: Christmas Time for Copyright Owners’, Medium, 11 December 2014, https://medium.com/@DrRimmer/christmas-time-for-copyright-owners-e3798cc0f8ad and TechDirt, 12 December 2014, https://www.techdirt.com/articles/20141211/16253729396/australians-may-get-their-own-sopa.shtml