news The Australian Copyright Council has recommended the Federal Government modify copyright legislation to support a “repeat infringer” industry code to terminate the broadband accounts of those who repeatedly infringe copyright online by illegally downloading content such as films through file-sharing platforms like BitTorrent.

The Australian Copyright Council is an organisation which counts among its members Australian publishers across multiple categories — books, newspapers, film, music and more. It was at the organisation’s annual conference earlier this month that Federal Attorney-General Robert McClelland released a discussion paper on the issue of copyright legislation.

The paper controversially contained a prominent section proposing a “streamlined” legal process to aid anti-piracy organisations such as Movie Rights Group and AFACT to target individuals allegedly downloading copyrighted material online. The section was later deleted, with McClelland’s department citing its publication as a mistake, although not before it provoked outrage from digital rights lobby groups.

The Copyright Council today published a paper (available online in PDF form) which detailed its proposals for reform in the area of copyright, put together by a number of legal academics from universities across the country.

Among other arguments, the paper points out that Australia’s Free Trade Agreement with the US requires that service providers such as ISPs would only be freed from liability for copyright infringement occurring on their networks (the so-called ‘Safe Harbour’ approach) on the condition that they implement a “repeat infringer” policy.

Such a policy, the paper argues, “providers for termination in appropriate circumstances of the accounts of repeat infringers”. “In Australia, there has been an inability of carriage service providers who are currently eligible for the [Safe Harbour provisions] to agree upon a repeat infringer policy with copyright owners within an industry code,” it continues.

The Copyright Council noted that any such code must be developed through an “open, voluntary process by a broad consensus of copyright owners and carriage service providers” and be registered by the Australian Communications and Media Authority, under processes specified in the Telecommunications Act (1997).

The paper agrees with the Federal Government that the Safe Harbour provisions should be extended (McLelland proposed this in his speech earlier this month), but argued that any organisation which wishes to rely on those provisions under the law, should be required to implement a repeat infringer policy as a condition of their use of the provisions.

“The precise terms of those standards – perhaps set out in regulations to the Copyright Act –would be a matter for public law input from interested circles,” wrote the Copyright Council’s expert panel. It noted that in the full Federal Court judgement in the iiNet versus AFACT case, Justice Emmett had acknowledged that account termination might amount to “a reasonable step” by ISPs to as to avoid liability for authorising the online activities of customers.

Currently, the development of an industry code to deal with piracy is in the works — with the Attorney-General’s Department holding talks between ISPs and the content industry on the matter. However, the talks are being held between closed doors with no involvement from consumer representatives on the matter, and few details of the process have made it into the public eye.

Similar ‘strikes’ termination policies have been implemented in other countries such as France and New Zealand, with mixed results.

opinion/analysis

Contained in the Australian Copyright Council’s paper is a sharp reminder of how many aspects of Australia’s legal community (including governments and politicians) views the issue of online copyright infringement: As a legal nicety to be smoothed over.

If you believed the viewpoint put by the Council, the issue of Internet piracy is simply one of bringing Australian law into harmonisation with international standards, as applied through the Australia/US Free Trade Agreement and so on. If Australian ISPs want the benefits of Safe Harbour provisions, the organisation and its panel of independent experts argues, those ISPs should also sign up for a process which would see them disconnect customers if they pirate content one too many times.

However, this legal argument is not only a false dichotomy; it bears no relation to how things operate in the real world. In practice, there is actually no relation between the need for comprehensive Safe Harbour provisions and the content industry’s desire to disconnect Internet users who pirate their content. The only reason these two issues are linked is because the US Government — whose country has the world’s biggest content industry — linked them in the Free Trade Agreement.

The US Government and its stakeholders has an obvious self-interest in doing so. It wants to help preserve the power of its content industries.

But the fact remains that disconnecting people from the Internet for pirating content is not the answer to the issue. Doing so raises a whole heap of other issues. In 2011, in Western democracies, to disconnect someone’s Internet connection is to prevent them from accessing modern media platforms. It will block them from participating in democracy. It will restrict their access to many fundamental services such as Internet banking, email, online lodgement of government information such as their annual tax return, and much, much more.

In an NBN world … it will even restrict their access to emergency services telephone calls.

The Internet is as fundamental to Australian society in 2011 as a public footpath or the right to receive paper mail at your home address. Taking the entirety of it away because someone allegedly — and, I stress, allegedly — infringes a powerful organisation’s copyright — is not the answer.