The Australian Government has proposed internet service providers monitor and punish Australians who download and infringe copyright.
In a leaked discussion paper circulated by Attorney-General George Brandis, the government proposed a sweeping change to Australian copyright law. If implemented, it would force ISPs to take steps to prevent Australians from infringing copyright.
What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.
The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
Unlikely to help pricing and availability
The problem is that this move is not likely to make things better. Similar schemes have been tried around the world, but there is little evidence they actually work to reduce copyright infringement.
This draft proposal does nothing to address the basic issue that Australians are not being fairly treated by the copyright industries.
Compared to consumers in the United States, Australians pay more for digital downloads, have less choice in how they can access film and television, face large delays before content is released, and much foreign content is still not available at all in Australia.
Recent research suggests that Australian consumers feel ripped off by distributors, and this is a key reason why they choose to download films and television instead.
If foreign film and television networks want to reduce illicit downloading, many think that their first step should be to provide better, cheaper, and more convenient legal ways for consumers to pay for access.
Meanwhile, the draft proposal is likely to have serious unintended consequences. It is likely to raise the price of internet access in Australia, as ISPs will pass on the increased costs of monitoring and enforcing copyright.
The proposals will also cause major uncertainty in copyright law. The government plans to overturn the recent iiNet case, where the High Court ruled that ISPs are not responsible when people use BitTorrent to download films.
The Court sent a strong message that iiNet could not be liable because it did not control BitTorrent protocols and did nothing to encourage their use.
The iiNet case confirmed a basic principle of copyright law: service providers are only responsible for the conduct of third parties when they have some control over their acts.
The leaked proposal will remove this limit and, with it, the ability of the law to clearly distinguish between real wrongdoers and companies who merely provide general purpose services to consumers.
This will massively increase the potential risks for companies that provide legitimate services. As well as ISPs, these include hardware manufacturers, cloud service providers, libraries, schools and universities, and many others.
Requiring service providers to act as copyright police is also dangerous. It removes the safeguards that our courts provide in ensuring the law is applied fairly.
ISPs are not well placed to investigate these claims, and there is a serious risk that consumers might be unfairly punished under these proposals.
Consumers left out of the debate
The proposals create a strong incentive for ISPs to agree to rights holder demands to protect their interests. They do not, however, provide much protection for consumers, who will have no seat at the negotiating table.
The proposals are also ominously vague. They include the threat that more regulations will be introduced if ISPs do not go far enough to protect copyright.
Eventually, this could also turn into a so-called “three-strikes” regime, where entire households are disconnected from the internet after several allegations of infringement.
Despite having been in the works for at least six months, this leak is the first time the public has been able to see any details. Meanwhile, the Attorney-General has been meeting with copyright lobbyists, but apparently not yet with either consumer groups or with telecommunications companies.
It seems the Attorney-General’s Department didn’t even listen to Malcolm Turnbull’s Communications Department, which has stressed the importance of ensuring that Australians have increased access to legitimate sources of content at a fair price.
Once the leaked proposals are officially released, Australians will have less than a month to comment.
Nicolas Suzor is the legal lead of Creative Commons Australia, a non-profit organisation that provides free licences and tools that copyright owners can use to allow others to share, reuse and remix their material, legally.
Alex Button-Sloan does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.