news Attorney-General George Brandis has threatened to introduce legislation to deal with the issue of Internet piracy in Australia unless the ISP and content industries can agree on a voluntary industry code to deal with the issue.

In 2011 and 2012, the Attorney-General’s Department hosted talks between the ISP and content industries about the issue of online copyright infringement, with the stimulus for the talks appearing to come from the department itself in the form of departmental secretary Roger Wilkins, and not the Australian Labor Party, which was in power at the time. However, despite the fact that the ISP industry proposed a voluntary industry code to deal with the issue, the talks eventually collapsed, with major ISP iiNet stating that discussing the issue with the content industry was like “talking to a brick wall”.

Several weeks ago, new Coalition Attorney-General George Brandis gave a major speech in which he re-opened the issue. At the time, Brandis appeared to back a scheme proposed by a coalition of most of Australia’s major ISPs in November 2011 which would see the issue of online copyright infringement handled through Australians being issued with warning notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if the behaviour continued. iiNet has subsequently pulled out of the scheme.

In a new interview today with Radio 5AA in Adelaide (you can read the full interview online), Brandis ramped up his rhetoric on the issue.

“… the reason I’m raising the issue is because it is an increasingly important issue for Australia, particularly for the entertainment sector,” Brandis told host Leon Byner. “The fact is that people don’t have a right to download pirate copies of songs or movies or television programs because the people who make those programs or other items have a right of property in them.

“The way artists earn their living is through royalties and that’s the way they are remunerated for what they do. To pirate a video or a song without paying the fee for it through iTunes, and so on, is an act of theft, it’s pure and simple. And the fact that it’s very common, I know it’s a very common practice particularly, I must say, among teenagers, doesn’t make it right.”

The Attorney-General went on to state that ISPs, in his view, did need to take some responsibility for the issue, because they provided the facility (broadband) which allowed piracy to happen, and that he wanted to restart the talks with the ISPs on the issue.

Brandis concluded: ” … if we can have a voluntary industry based code of practice that is always the best way to go. And I haven’t, even though the former Attorney-General, Mark Dreyfus, failed to achieve this, I haven’t given up on the possibility of developing a voluntary industry based code of practice. That will require the cooperation of the ISPs.”

“But there is always the capacity, if that fails, for government to legislate. We had a report, that you’d probably be aware of, two weeks ago from the Australian Law Reform Commission about the Copyright Act which is almost 50 years old now. The Government will, during this term, be looking to make significant amendments to bring the Copyright Act up to date. I would prefer that those amendments not include a mandatory scheme but if a voluntary scheme can’t be developed then they will.”

Brandis’ comments contain several puzzling elements for any Australian observer of copyright law. Firstly, the Attorney-General’s statement that Internet piracy constitutes theft is factually inaccurate. Under Australian law, copyright infringement constitutes an infringement of copyright rights. However, because there are a variety of legal uses of others’ copyrighted works, and because the items in question are not stolen but copied digitally, copyright infringement does not constitute theft and is treated differently by the courts. Copyright infringement constitutes an infringement of others’ rights under the law, but does not constitute stealing per se. It does not deprive the original creator of the work of their copyright.

Secondly, Brandis’ mention of the recently published Australian Law Reform Commission review of the Copyright Act in the context of the new digital environment is also puzzling when discussing Internet piracy, as the terms of reference for the report explicitly prohibited the ALRC from examining Internet piracy.

Consumer group reacts Brandis’ approach

The news comes as consumer group CHOICE has recently severely criticised Brandis for his comments re-opening the Internet piracy debate, and particularly his mention of a “graduated response” scheme, which could see users hit with a series of warnings before facing penalties for copyright infringement.

“Three strike schemes have proven to be ineffective and costly in other countries. They have also undermined the rights of consumers to due process,” said CHOICE CEO Alan Kirkland in a statement. “If implemented in Australia, these measures would push up the price of internet access without any impact on piracy.”

“Nobody supports internet piracy but punishing consumers is not the answer. The best way to stop piracy is to make it easier for Australians to pay for content like movies and television series at internationally competitive prices. The main driver of piracy is frustration, as Australians look overseas for flexible, affordable and timely content. Piracy in Australia is driven by a market failure, plain and simple. The Government should be embracing the internet as a source of innovation and development, not restricting it.”

CHOICE welcomes comments from the Attorney-General that the government will seek to engage with Internet Service Providers in establishing a scheme, however we stress that given the very real risks for internet users, consumers must be consulted as well. “Any discussion on how to address online piracy must examine how industry can make content more available to consumers. Lack of access to legitimate content is the elephant in the room, and it’s time that industry addressed it in a meaningful way,” said Kirkland.

During several rounds of the previous talks regarding an industry code to deal with Internet piracy, consumer groups were explicitly initially excluded. CHOICE has also launched a petition urging the government not to introduce a three strike policy.

Brandis explicitly declined to answer questions on the Coalition’s policy on Internet piracy before the Federal Election or shortly after it. The Australian Labor Party has similarly not issued a policy on the issue.

Image credit: CeBIT, Creative Commons