Concerns have been raised about the viability of a voluntary industry code of practice to fight online piracy, with some technology experts warning the code contains a major flaw in only targeting residential users, and was unlikely to succeed without the involvement of other countries.

The draft code was released last week for public consultation by the Communications Alliance, which represents internet service providers and rights holders from the music, film, television and performing arts industries. Under the proposed code internet users who have allegedly been illegal downloading content will be sent a series of warnings under a graduated response system, and in extreme cases face legal action.

However the code will only apply to fixed line residential internet accounts held with ISPs – leaving questions open about people switching to business and mobile accounts to illegally download content outside the code’s remit.

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This is a major issue according to Professor Thas Nirmalathas, director of the Melbourne University’s Networked Society Institute, who said it was unclear if the code would actually work in reducing online piracy.

“The internet is pervasive and it would be foolish to think that it is only the fixed line residential service that are going to be doing this (illegally downloading content), because the content can be accessed and consumed using a broad variety of technologies; so if you don’t have a fair system that covers the whole access question, I think it’s probably then quickly going to fall into a heap in terms of implementation and at least perceptions of fairness,” he told Mumbrella.

“It’s actually very difficult to implement. The argument being the internet is very pervasive throughout the world, just one country implementing alone would not have any ways to prevent the piracy because there are very clever ways you can safe tunnels to access international content so the domestic jurisdictions and whatever code you put can quickly become redundant because people can use things like VPNs and other options,” he said.

Communications Alliance CEO, John Stanton, acknowledged there were some problems with the draft in it’s current form.

“No scheme is going to perfect, but this scheme is designed to educate and influence the behaviour of the general population and thereby to significantly reduce infringement,” he told Mumbrella.

Stanton pointed out at the release of the draft code that it was a working document but was the right direction to be taking.

“Much work remains, but publication of a draft Code is an important milestone toward greater protection for the legitimate rights of the creative industries,” he said.

One possibility was a standardised definition of who is entitled to a business account with an ISP to prevent residential users, applying for ABNs and then switching en mass to circumvent being caught under the code.

According to Nirmalathas there should be serious concerns if the code were to go further and try to tighten up how business are defined, as fluidity was essential for many small start ups in the business environment and more regulation was not desirable.

“That is essentially a very important thing, because in my view Australia already does not have a good safe harbour regime for start ups, and because digital technologies and the access to online is going to be critical to lots of start ups, we have to ask at what point do these barriers to come in?,” he said.

“Because people go through quite a long process of forming a company and they will play around with some of the digital technologies before they incorporate and go into a properly established business. So I think if we have this very rigid kind of separation then you potentially could inhibit a lot of digital innovation in that space.

Nirmalathas also added that once a regulatory path was started on there was always the temptation to tighten it further if initial efforts failed, and that this could further stifle freedom of the internet and innovation.

“Some countries are blocking VPNs which is also concerning as such actions can have more positive than negative impacts,” he said.

“I think the internet doesn’t have any boundaries and unless it’s a concerted common framework, than regardless of individual countries, unless there is a common code applied broadly and then implemented in each geographic or political jurisdiction, then it will be very difficult.”

Some film companies are already pursuing ISPs through the courts with the makers of The Dallas Buyers Club film court at the moment in an action against iiNet and other companies that could see Australians chased over alleged online piracy.

Music Rights Australia General Manager Vanessa Hutley acknowledged the code was just the first step in the process, but declined to say if the music industry was satisfied with the code in it’s current form or whether they held concerns about only residential lines being targeted.

“We think it’s appropriate that that period of time be used for the public to comment and so that’s why it’s out there,” she told Mumbrella.

“This is an important step in what the music industry and other creative industries have wanted.

“We will continue to engage with the Government. ISPs and other stakeholders to bring about a robust code that will help protect and deals with a serious issue of online copyright infringement.”

Among the more vocal rights holders in the debate over how to tackle illegal downloading in recent years has been Village Roadshow chairman Graham Burke, whose company has donated hundreds of thousands of dollars to political parties as it lobbies for a crackdown on piracy.

Burke praised the ISPs and the code, saying the draft was a positive outcome.

“I think the ISPs have acted in a very socially responsible way and I think by establishing a voluntary code, the cost is still to be resolved, I think it’s a very strong step forward and a good day.”

When asked about the exclusion of mobile and business lines Burke said. “(residential) That’s the vast overwhelming bulk of users and the great majority of where pirating occurs.”

When asked if he held concerns users may switch to business accounts to avoid the code he responded: “What’s to stop people going into a department store and being more furtive and stealing oranges”.

“What we’re hoping to do with a process of education and a process of communication and also making movies available legally at the appropriate time at a cheap price; we’re hoping that just like people no longer smoke in restaurants, people with tidy towns don’t through rubbish on the street, that there will be a cultural shift”.

Robert Burton-Bradley