Destined to repeat past copyright mistakes

For a government that has promised to make life easier for business, the Coalition seems hell-bent on repeating other governments' inefficient policies that have done little beyond pushing up costs through complex regulation.

And that is exactly what Attorney-General George Brandis’ proposal to require internet providers to block websites and introduce a graduated-response system warning for file sharers will do.

Other countries that have tried site blocking and three-strike systems have found such measures are a burden on providers, snare innocent people and are not compatible with the internet era.

The problem with Brandis’ notion of Stop the Torrents is that all content on the internet is copied, often multiple times, before reaching its final destination.

That’s how the internet works: it is the biggest network of networks, full of copying machines, and it’s getting larger by the day.

It is astounding that the internet's fundamental principle of operation is being papered over, with legal minds and politicians pretending we’re still dealing with a broadcast medium.

Copyright itself was devised as a response to the technological advance of printing presses that changed everything for the content creators of the day.

The internet kicked up the technological advancement several notches, and copyright needs to adapt accordingly.

Brandis couldn’t be more wrong when he says the principles of copyright did not change with the invention of the internet.

Three strikes is out

The old notion of copyright is very much the square peg in the round internet hole, and no amount of hammering is going to make it fit in.

There are plenty of failed overseas examples the government can study when considering its own approach.

France has had a three-strikes anti-file sharing system since 2009, codified as the HADOPI law. It criminalises file sharing and penalises those involved with fines and internet suspension.

Did HADOPI deter French file sharers? Not according to a recent study.

The new French government agreed and last year, took a hard look at HADOPI and killed the administrative agency responsible for it, which was costing millions a year to run with very little to show for it.

Closer to home, Monash University Faculty of Law researcher Rebecca Giblin came to a similar conclusion - three-strikes regimes are ineffective. 

Elsewhere, since 2011, British courts have blocked several file sharing, streaming, search engine sites and even a DNS provider to prevent copyright infringement.

As of writing, 38 sites including the notorious torrent indexer The Pirate Bay are blocked in the UK. 

Unfortunately for the British courts, it is very simple to bypass the blocks, and research shows again that the measure isn't very effective.

It’s the law

Enforcing graduated response systems and associated penalties requires byzantine processes that leave alleged infringers helpless while not providing the desired deterrent against file sharing.

Across the ditch, the two recent New Zealand Labour and National governments went a long way to accommodate rights holders when they drafted an amended copyright act that introduced a three-strikes regime.

The NZ system introduced features that go against traditional law - such as guilt upon accusation and holding the internet account holder responsible for infringement rather than the actual downloader - but much to rights holders’ chagrin, the Kiwis did not ditch all due process.

The onus is on the rights holders and their agents to apply, through the Copyright Tribunal, for monetary penalties from infringing users. 

As a result, only a few three-strike cases have been brought before the tribunal.

While rights holders were hoping for thousands in compensation, the penalties meted out by the tribunal for downloading and sharing a small number of songs via Bittorrent peer to peer networks have been small, only a few hundred dollars in each case.

Only the music industry has bothered to go through with the NZ three-strikes process; there have not been any cases of movie studios taking file sharers to the tribunal.

Read on for why the current process is too easily open to abuse...