Ministers’ differences exposed as attorney general says service providers should have to bear some of the cost of a crackdown

Public differences have emerged between the cabinet ministers jointly responsible for cracking down on illegal downloading, as pressure grows for content providers to first allow easier, faster and more affordable legal access to movies and television shows.



The attorney general, George Brandis, and the communications minister, Malcolm Turnbull, have been at loggerheads behind the scenes for months as they prepared a joint “discussion paper” released last week.

Now their differences on one of the many contentious issues involved is public, with Brandis telling the Australian newspaper that internet service providers could not pretend to be “innocent bystanders” and would have to bear some of the cost of a crackdown, including sending warning notices to customers downloading illegally.

After the discussion paper was released, Turnbull insisted content providers such as Foxtel or Village Roadshow would have to pay for a crackdown.

“I think it is reasonable to ask ISPs to alert people, so long as their costs are covered, and those notices will have an educative effect, but in terms of a sanction, that obviously should lie with the content owner,” he told Guardian Australia. “That is a reasonable approach, because they are suffering the loss.

“There are some people in the content industry who believe the costs should be borne in whole or in part by the telecommunications industry. I don’t find that a persuasive argument.”

As the debate intensifies, Labor – whose Senate support is very likely to be crucial to any future legislative changes – has said the government will have to address the higher prices Australians are forced to pay for legally downloaded films and music.

“The government’s discussion paper doesn’t suggest any measures to deal with the higher prices Australians are often forced to pay for content,” the shadow attorney general, Mark Dreyfus, told Guardian Australia.

“Australia’s piracy problem will not be solved unless a comprehensive policy solution is developed, something the government’s discussion paper has clearly failed to provide.”

Dreyfus said the discussion paper was “vague” and “didn’t come close” to the substantial response on the issue the government had promised.

Turnbull has also said content providers need to reduce the incentive for illegal downloading by making programs available in Australia in an affordable way.

“That is a very powerful argument. There is an obligation on the content owners, if their concerns are to be taken seriously by government, and they are … they have to play their part to make their content available universally and affordability,” he told ABC radio in an interview last week.

“Anyone is entitled to sell their products for whatever price they like, that is their right, but if you want to discourage piracy the best thing you can do is to make your content available globally, universally and affordably.

“If you look at what the music industry has done making songs available at low cost on Spotify and Pandora … you reduce the incentive for people to do the wrong thing. So everyone has to play their part … The content owners … are the ones who have to justify why they are charging more in Australia, why they are not releasing content in Australia at the same time it is released elsewhere in the world.”

Choice has made the same point, saying Australians pay 42% more to watch the Australian actor Hugh Jackman in The Wolverine.

The consumer group said it believed that online copyright infringement was a real issue but piracy was in part driven by poor access and high prices of content, which were out of sync with other markets.

It suggested the government reform copyright law to give greater protection to consumers getting around geoblocks on sites such as Netflix and that consumers be educated about their rights to get around geoblocks, and the tools available to them.

And it said as a last resort the government should consider amending the law to ban terms of service that seek to enforce geoblocking.

Foxtel has said the government, ISPs and content providers have to work together to stop illegal downloads.

“Government should put in place a regulatory system that encourages legitimate use and discourages illegitimate use of content, while content owners need to make content available quickly and conveniently,” it said in a statement.

“ISPs should also assist by mitigating, to the extent they can, use of their networks for unauthorised purposes. All parties have an obligation to ensure that consumers are educated about the implications of unauthorised use of content and how to get access to legitimate sources of content.

“For its part, Foxtel goes to great lengths through its ‘Express from the US’ effort to bring content to subscribers as soon as possible. Moreover, Foxtel has made a massive investment to maximise the number of ways in which people enjoy content by making it available on tablets, mobile phones and other popular devices, while offering flexible, no lock-in contract, subscription via its internet-delivered service, Foxtel Play.”