Anita Barraud: Hello, welcome to the Law Report, Anita Barraud with you for the next few months while Damien Carrick is on leave.

The sights, sounds, the images we find on the internet, we might share interesting pictures, fun videos, even create our own mash-ups. Many of us download the latest music, film or TV shows. But do we ever consider we're often illegally accessing the content we consume? Do we care? Probably not. We are serial culprits. Remember Game of Thrones? 1.5 million illegal downloads in Australia for the latest season. We may think it doesn't matter, but what if it's a local home-grown production?

Today we'll hear from some of the Australian creators of the content we so love to rip off the internet. First, to the government's plans to curb online piracy. Last week, Communications Minister Malcolm Turnbull presented a draft amendment to the Copyright Act. It is designed to expand the ability of internet service providers to block foreign pirate websites through the courts.

Malcolm Turnbull: There are a number of foreign-based online locations that disseminate large amounts of infringing content to Australian internet users. What they do in unlawfully accessing and then profiting from the intellectual and artistic endeavours of others is a form of theft.

Anita Barraud: As part of a range of proposed reforms, there is also a plan to introduce a warning system to users who are serial infringers. Industry and stakeholders, including the telcos, the internet service providers or ISPs, as well as content distributors, creators and consumers, have until April 8 to put their heads together and agree on a preferred code of conduct. Nicolas Suzor is a senior lecturer at the Queensland University of Technology Law School.

Nicolas Suzor: For a long time rights holders have been looking for something like this because the transnational nature of the internet makes it very difficult to enforce the law against sites that are infringing your copyright overseas.

Anita Barraud: It's an aim, I understand, that's similar to the UK system; if you own material you suspect is being infringed, that's hosted by an overseas site, you can go to the courts to get an injunction to get the internet service provider to block that site or the file sharing system.

Nicolas Suzor: And it does provide rights holders with some ability to ask ISPs to block particularly large websites like The Pirate Bay, for example. But it hasn't been terribly effective in those jurisdictions either because these sites are fairly easily able to evade those types of restrictions.

Anita Barraud: I understand that The Pirate Bay describes itself as the most resilient torrent site.

Nicolas Suzor: Yes, it certainly does, and they seem to take pride in their ability to work around these restrictions fairly easily.

Anita Barraud: And the amendment also includes a number of protections and the court has to consider the public interest, and clearly this is going to be debated.

Nicolas Suzor: This amendment does include some protections to give courts the ability to oversee the orders to block websites. But we have seen these systems abused in the past where a lot of innocent websites are often caught up in the net by the clumsiness of blocking the technology that is available to block websites. And it's unclear yet whether the increased costs to internet service providers is actually matched by a net benefit to Australian creators.

Anita Barraud: But this is only one arm of the measures to combat online infringement. Can you tell me about the other main measures on the table?

Nicolas Suzor: So the other main measure is what we might call a three strikes or a graduated response scheme. For a long time, rights holders have been seeking to find some efficient way to enforce copyright online. And the problem is that there is no one left to sue. They can't sue ISPs, they can't sue end users because it's massively expensive, and it's terrible public relations. So the idea behind graduated response was originally to require internet service providers to enforce copyright on the behalf of rights holders. Initially ISPs were being asked to actually disconnect the accounts or the internet access of people who were alleged to have infringed copyright on multiple occasions. So that's where the three strikes term comes from.

The courts worldwide and really the public worldwide quickly came to the conclusion that this is a particularly dangerous approach for internet service providers to take, given how important the internet is to our daily lives. So the current batch of graduated response systems focus on sending what they term 'educational notices' to infringers or alleged infringers. Under this scheme internet service providers will be required to pass on allegations of infringement in increasingly severe terms to users on their networks.

Anita Barraud: So it starts off as a sort of, 'Did you realise you have been downloading this material?' And then gets a slightly heavier warning, and then a final notice?

Nicolas Suzor: Exactly, and that's where it gets really interesting because after the final notice, rights holders are entitled to ask internet service providers to give them back the details, the personal information of the subscribers who they have been tracking through that system. That opens up the possibility of further enforcements later on where rights holders might choose to bring a lawsuit against individuals who've received three or more notices.

Anita Barraud: I understand a sticking point between the copyright holders, the rights owners and the telecommunications industry, including the internet service providers, the ISP, is who pays.

Nicolas Suzor: The ISPs are concerned that they are not going to be left with the bill for the running and overseeing this scheme. And the public interest groups who have an interest in this are not particularly well heard at these negotiations. They are represented by ACCAN, the Australian Communications Consumers Action Network, but it is very difficult to introduce safeguards to these private schemes that protect the public interest in a way that we expect our legislation to protect the public interest.

Anita Barraud: What about, for example, there were two independent films a couple of years ago, The Sapphires, which I understand was one of the most frequently pirated Australian films at the time, and the producers reckon they lost about $1 million from that illegal downloads. And then there was the 100 Bloody Acres, which was a low budget film and apparently about the same number of people downloaded it as saw it in the cinemas.

Nicolas Suzor: A lot of people argue that elicit downloads are a symptom of unmet demand and a symptom of hype and interest in a particular production.

Anita Barraud: And a problem of distribution too, I think.

Nicolas Suzor: And a problem of distribution, absolutely. The reality is it's very difficult for independent filmmakers in Australia, and it's not clear that increasing the strength of copyright will actually improve that situation. There are other non-copyright systems that I think are much more important in supporting Australian production, so industry grants and tax breaks and support from the public. The copyright market is really a lottery. There's a few people who make it very big and most people struggle to get by.

Anita Barraud: And perhaps legal subscription streaming services that are popping up all over the place may also have an impact on stemming online copyright infringements.

Nicolas Suzor, senior lecturer at QUT's School of Law.

This is the Law Report on RN, Radio Australia and ABC News Radio, and freely online and downloadable from most platforms, just head to the RN website. I'm Anita Barraud.

[Music: 'The Good Baker's Dream', Brendan Gallagher]

The song 'The Good Baker's Dream' from Brendan Gallagher, which I got from the ABC sound library. He is a well-known award-winning musician, music producer, composer and author, perhaps best known for being singer/guitarist in the band Karma County. Brendan has just become a board member of APRA, the Australasian Performing Right Association, which has been part of the discussion around the code of conduct in the three strikes plan.

Brendan Gallagher: You have to have some form of copyright to protect creators, but you have to have a balance between what those rights are and the rights of the general public. But it's only in the last five years that the term consume music has entered the lexicon. One very common experience for most performers is when someone comes to a gig and they film you and then post that performance on Facebook or wherever and it might go viral, it might not, but it's an abrogation of many of an artist's rights, their performance right, their reproduction right, their moral rights. And people think it's really cool because they don't understand that…well, for me, I might have done a really bad version of that song and I don't want it out there. And a lot of it has come down to what is the common sense of the age, that you film anything you like and put it anywhere you like because no one is going to enforce a breach of copyright because mainly they don't know about it.

Anita Barraud: So you perform and you produce on a lot of different platforms, from film to stage to live performances. How do you protect your work and get the proper attribution and reward?

Brendan Gallagher: Well, that's almost out of my hands. All I can do with my work is that I can register songs with APRA as being a composer and in some instances ensure that I am attributed authorship. But as far as enforcing it, you know, going around to people's houses and saying, hey, don't download my stuff illegally, I mean, I'm almost powerless.

Anita Barraud: Melissa de Zwart is a Professor of Law at the University of Adelaide. She is the co-author of a report investigating the impact of copyright infringements on the creators like Brendan Gallagher. Commissioned by the Copyright Council as part of their contribution to the debate, she interviewed musicians, artists, writers, photographers and filmmakers. She found many were concerned about the public's tendency to think everything published online is free.

Melissa de Zwart: So I think there's a lot of down-grading or perhaps not even downgrading but lack of awareness of the significant investment of time and effort that goes into creative works of all kinds. So the problems were multiple. One is the way that it's so easy to copy and to share something.

Anita Barraud: And you spoke to one visual artist who basically, apart from a website promoting her work, doesn't sell it online at all because she said it was just too easy to rip it off the web.

Melissa de Zwart: Yes, absolutely, and with particular issues there because we were dealing with an Indigenous artist and she'd had some very bad experiences of having her artwork downloaded and turned into all sorts of weird and wonderful multi-coloured items that were sold to people in the belief that they were getting some kind of genuine Indigenous artwork. And so, again, we come down to the loss of both economic return but also serious impingement on her rights, her cultural rights, her own personal rights and artistic and moral rights.

Anita Barraud: Did you have any sense of how much money they might have lost from copyright infringements?

Melissa de Zwart: We did talk to a number of artists who said that they themselves had lost a significant amount of money. So you have the examples of photographers who would find that an image that they had created was then shared on platforms like Flickr, and in many instances they are actually required to share their photos or to upload them to a digital platform, making it much easier for people to then copy it. So they share one photo and then it will simply be cut and paste and used possibly on someone's Instagram feed or on Facebook. But also for commercial purposes or having their name taken off them and someone else claiming attribution. So again, you do have that blurring of both the moral and economic rights being infringed upon.

Anita Barraud: There was one solution from one photo journalist, he took steps, he used low resolution images, because he'd had around 42,000 unauthorised downloads of the one photo. It must have been some photo.

Melissa de Zwart: Yes, it's staggering, isn't it, to think that an image can be reproduced that many times.

Chris Shain: My name is Chris Shain, I'm a commercial photographer based in Sydney, I do a lot of infrastructure, architecture, and industrial projects.

Anita Barraud: So I just have to ask you one little question about a photo that I know is not yours, but can you tell me about what the photo was that was downloaded 42,000 times?

Chris Shain: I think it was a glass of wine. It's nothing particularly difficult, an image that was useful, it was there, people can right-click it, is the short story.

Anita Barraud: So what's your experience of copyright infringement on your work?

Chris Shain: It's an ongoing issue is I guess the problem. As a small business creator, there's a lot of heritage pictures, architectural heritage pictures that I know have been right-clicked, and I google my own name sometimes and up they all come. It gets to the point where it's definitely not worth commercially chasing it, but you know it happens.

Anita Barraud: So do you know how much money you might have lost through these infringements?

Chris Shain: The day-to-day stuff would be…you know, if somebody rang and said, 'I want to use your picture in a domestic environment,' you might say, look, that would be $20 or $50 or something like that, but I would think there would be certainly thousands of dollars over a period of time. I've never really added it up, to be honest with you, because it's massively time-consuming to pursue these things.

Anita Barraud: And of course if you were to pursue it in the court it would cost you about $20,000 to mount a case.

Chris Shain: Just to start, just to start. And there's very few legal cases for photographers that have actually ever gone through the courts. There is a particular one that in fact I was an expert witness for, Tyler v Sevin, that went through the Federal Court, it was an online infringement, through a travel company, and that set a very good benchmark for photographers in fact for online infringements.

Anita Barraud: And that court case Chris Shain mentions went to the Federal Court last year. It involved a travel agent who used an American photographer's stock pictures of a beach in Hawaii, without paying a licence fee. She ignored numerous letters, including from lawyers, to pay the levy or take down the picture. The court was satisfied the travel agent had breached the photographer's moral right of attribution, and in making the judgement the court said there was a need to deter similar infringements.

Melissa de Zwart says the creators she spoke to found it hard enough to make a living from art in Australia without the added stress of piracy. Some had to supplement their income with other jobs, others were considering heading overseas.

Melissa de Zwart: We had musicians talking to us about the fact that they felt that they were becoming a consumerist product, that they were very much treated as essentially everything is background music to something else that's going on. And then conversely you have a number of previously paying avenues for musicians, for example, like live performances or the ability to have your music included in a film or on a TV program. And these creators are being told, look, we will include your song in the TV show or in an ad but we are not going to pay you for it because this is in fact good advertising to you. So they are losing out across the board.

Anita Barraud: There is an argument that getting that kind of exposure in a TV show or getting a taste of a book or an artwork is publicity, it could even attract future funding.

Melissa de Zwart: It could, and again, we have found that the artists we spoke to tended to be experimenting with some form of access or free access or trial access. So, for example, you had musicians who would make their music available for free for a limited time for download. Or they would offer bonus material. But then of course the question becomes at what point do you begin to make money to continue to go on writing songs and to performing.

Anita Barraud: Melissa de Zwart, Professor of Law at the University of Adelaide. She is co-author of the report 'Australian Creators and Online Intermediary Liability', which you can read on our website as well as other relevant material, and you can have your say too.

Sophie Masson is an award-winning author of mainly children's and young adult fiction. She's written more than 60 books. Sophie is also on the board of the Australian Society of Authors.

Sophie Masson: I've come across examples of pirated works of mine, and that has been happening a bit in the last year or two. I've had quite a few books now that have appeared on these various sites. They are anonymously uploaded to these sites, but basically what seems to be happening with most of mine is that somebody or somebodies is going around scanning the books physically and producing PDFs off them and then they are uploading them.

Anita Barraud: I understand that you sell a lot of your books as eBooks and they are quite cheap, aren't they.

Sophie Masson: That's the silly thing about it, I mean, for $7 or something you can buy one of my eBooks. Really, what does that mean to most people? It simply seems to be a thing of, oh, we can do it so we will.

Anita Barraud: And so what is your publisher doing about it? Are they working at getting these books pulled down off the sites?

Sophie Masson: One of my publishers Random House for instance has somebody dedicated to doing just that. They will then send messages basically saying cease and desist to the people who are actually the administrators of the sites, and usually they pull them down.

Anita Barraud: So what are your thoughts them on the current proposals on the table for a code of conduct and the three strikes plan to stem illegal downloads?

Sophie Masson: I think it's a very good thing to be doing because I think that what people have to understand is what they are doing is not victimless. Writers, for instance, don't have many alternative sources of income. Of course you can go and do school visits and workshops and so on, but why should you have to do? One of the things about these kinds of laws is what they do is they concentrate people's minds a bit. It is a way of saying, look, this is not victimless and something has to be done about it. A lot of people talk about the fact that it's big companies, it's distributors, it's this and that, but fundamentally it is about the people at the heart of it, at the heart of all our creative industries.

Anita Barraud: You're French, and I understand you've looked at the system in France which has gone through a few changes since it was implemented a few years ago.

Sophie Masson: That's right. The French government has got a very tough line, a very strong line on copyright and copyright infringement. So when the law, the HADOPI it's called, it's an acronym and at the heart of it's actually talking about the rights of creators, that's right within that acronym. And it was designed to really crack down very hard on illegal downloads and illegal downloaders and uploaders as well. It's has to undergo certain changes because some of the provisions were a little bit draconian and a bit unenforceable as well. But at the same time there is evidence that during the time that the law was in operation, and it's still in operation but in a modified form, the sale of music through iTunes rose considerably in France, and many articles that I've read attribute that to the fact that these laws had actually concentrated people's minds on the illegality of downloading music.

Anita Barraud: And it started off as this very punitive system. After two warnings they could then cut off for up to a year access to the internet.

Sophie Masson: Yes, that's obviously not only draconian but it's also unenforceable because people can get around that of course. And in fact there was this whole thing saying access to the internet is a human right, which is interesting because it's a new human right of course.

Anita Barraud: Well, that's what the French constitutional court declared, didn't it.

Sophie Masson: Yes, that's right. It was always a work in progress, and they always had to see how things would pan out. So they've had to modify it.

Anita Barraud: Author Sophie Masson.

The French scheme is just one model. Across the Tasman, New Zealand's graduated response scheme compels ISPs to send escalating notices to serial infringers. The New Zealand scheme also provides for the copyright holder to seek up to $15,000 in compensation from the Copyright Tribunal. Most schemes such as those in the UK and Canada use an alert system designed to increase awareness of the impacts of copyright breaches.

For indie pop artist Brendan Maclean, the internet is his main platform for making a living from his music.

[Music: 'Stupid', Brendan Maclean]

So that's the song 'Stupid' by singer/songwriter Brendan Maclean. Brendan, how many views did you have for that song?

Brendan Maclean: I think we've racked up about 300,000 views for it now. It did quite well after it got picked up by an internet website called BuzzFeed, it was quite a surprise.

Anita Barraud: And did you make any money from that?

Brendan Maclean: I didn't make any money off the video. You can make money off YouTube if you monetise it and put an ad, but just personally I get a bit tiffed when those ads come up, so I turn them off. I don't actually put any of my new songs up on iTunes anymore and I don't use streaming services which would usually be your go-to. I feel that there are new campaigns that you can do, so things like Kickstarter where people donate before you've made the product for them in return for rewards or special treatment. But my main source of income as a musician now is something called Bandcamp.

Anita Barraud: Can you explain what Bandcamp is? It's an online new music store, isn't it, that provides a site, a micro site.

Brendan Maclean: So we've probably all heard of iTunes, and it's similar to that where artists can upload their songs. But what Bandcamp does differently is you can actually choose to give away your track, technically free. So you are selling it for zero dollars. But in return for just downloading it people have to give you their email, for example, but they can also choose to give you whatever amount they want. Every day I get up and I look at my email and people will buy the track for 5$, $10, they'll buy EPs for up to $50. It's making an easy place, and this is what I really have to focus on and this is what I think is really important about all this downloading law stuff, it's an easy place for people to get my music, high quality.

Anita Barraud: And you have actually made some money.

Brendan Maclean: Absolutely.

Anita Barraud: Can I ask how much?

Brendan Maclean: Yes, I really proud of it. I think people will be surprised that just this year alone I've racked up about $5,000 for the songs on my Bandcamp, and all of those are set to 'pay what you feel'.

Anita Barraud: But what if someone takes your work and, say, uses it for commercial purposes?

Brendan Maclean: The difference for me if my song was going to be used for commercial purposes is that I know because I'm signed up to a publishing company which has quite well informed me on my rights as a musician, so you have to be aware of that. But because music has changed and because we are in social media now, people will happily contact you and say, hey, can I use your song in a short film or an independent film, and in this very tough business where 95% of us don't have an income, I think you have to give up a little bit to receive in the long run. You know, put your stuff out there, let it be used for art. But of course, if a big international brand is nicking your song or copying your song in some way, then you deserve to be paid quite a lot of money.

Anita Barraud: Musician and performance artist Brendan Maclean. The government acknowledges that reforms around online copyright infringement will need to be flexible and it won't completely stop piracy. Nicolas Suzor is a senior law lecturer at QUT.

Nicolas Suzor: My core concern is that it's not clear that these proposals will actually be able to achieve the goal of supporting Australian creators. And we need to be very careful because they do introduce a cost. They impose costs on internet access that could be passed on to consumers, making it more difficult, more expensive and further exacerbating what we call the digital divide, the gap between people who can afford access and those who cannot. So we need clear measures built into the scheme to protect transparency so that we can evaluate, have an independent evaluation of how the schemes are operating, and clear measures for success. How will we know whether these schemes are actually successful or not and are actually worth the cost? And for that we really need to be watching not just rates of detected infringement but real increases in incomes to Australian creators. And I think those are the sorts of protections that need to be built into the scheme to ensure that it represents the public interest, and it's something that has been missing from schemes worldwide.

Melissa de Zwart: Some of the more difficult elements that will need to be thought through very carefully are things like user privacy. So we need to be sure that the issues of accessing data about repeated infringers is not facilitated as a fishing expedition…

Anita Barraud: No name and shaming type of thing.

Melissa de Zwart: Absolutely, yes. And the US has had some very bad experiences with its notice and takedown regime where people have sent off notices just so they can extract information about who might be using that material. So the system itself has to have appropriate checks and balances in it. And yes, freedom of expression and privacy and data retention, all of those things need to be dealt with as part of the code of conduct that is agreed to. And it should be said that this is not out of step with what is going on internationally, this is not a question that Australia is grappling with on its own.

And I don't think that this would be the end of it either. I think it would be very short-sighted of us to say, well, I think we'll do those two things that everything is going to be okay. But I also would say that copyright is intrinsically intended to serve public interest by making creative works available. It's intended to serve the creator by rewarding them for their creativity. But it's also meant to have enough scope and capacity within it to allow creative re-uses of that. So I think we need to remember that copyright serves all of those purposes. It's not just something that is there to allow the creator to ring every last cent out of it, it truly is a balance.

Anita Barraud: Melissa de Zwart, Professor of Law at the University of Adelaide. That's the program, but clearly not the end of what is a very lively debate. I'm Anita Barraud, sitting in for Damien Carrick for the next few months while he's on leave. The program producer is Matthew Crawford, and technical producer John Jacobs. Thanks for your company.