The government should undo the High Court ruling in the iiNet case that protects ISPs from litigation over users' copyright infringement before the ISPs start asking for costs, according to Music Rights Australia general manager Vanessa Hutley.
Speaking yesterday at the Australian Copyright Council's Copyright Law and Practice Symposium in Sydney, Hutley said that although there has been an explosion in the availability of legitimate digital music services in Australia, such as Spotify and iTunes Radio, they are unable to compete on a level playing field with the copyright infringing websites such as The Pirate Bay.
She said that Music Rights Australia, which represents artists and music labels through the Australian Recording Industry Association (ARIA), supports Attorney-General George Brandis' call for a review of safe harbour for ISPs. The 2012 copyright case against iiNet was lost on the grounds that iiNet has no direct power to prevent its customers' infringing on copyright. Hutley said this means that the Copyright Act is not working the way it was intended under the Australia-US free trade agreement, and needs to be overhauled.
Hutley also said she supports blocking websites such as The Pirate Bay through a court order, and rejected criticism that it would lead to internet censorship.
"The right to go to court and argue a case is not going to kill the internet. Here's a news flash: There were four orders today made in the UK against four major sites, and last time I looked, friends of mine in the UK were sending me email," she said.
"Those orders are presently being made around the world, and the internet is not broken. Freedom of speech has not stopped. I think there needs to be a little more calm in this discussion."
The Copyright Act needs to be amended to force ISPs to "act reasonably" to prevent their users from infringing on copyright, she said. However, she said she doesn't know what reasonable measures could be used against an ISP's customer.
"Just to be clear: We're not breaking the internet; it's not about filtering; it's not about censoring creative expression. It doesn't prevent free speech, we're not asking for anyone to be disconnected, we just sort of want them to be slightly educated about what it is they're doing and maybe ask them to go somewhere else to get the music they're using," she said.
"It won't result in a lot of litigation. It isn't about that; it's about giving the space to the genuine, fully-licensed, legal services to compete head to head and actually give consumers the music they want."
Hutley admitted that she doesn't know how much it would cost ISPs to implement such a system, and said it never came up in the three years the ISPs were in discussions with content owners and the Attorney-General's Department.
"We didn't have a circumstance where there was a genuine discussion about that," she said.
The law needed to be changed to overrule the iiNet case, and she questioned whether ISPs are seeking to profit by suggesting that ISPs should charge content owners to enforce copyright.
"Every time [ISPs] do something that [they] have an obligation to do, based on that balance, [content owners] will pay," she said.
"That seems to me to be a money-making exercise, and I don't think that was what was really intended."
iiNet's chief regulatory officer Steve Dalby, who was a participant in the roundtable discussions before they came to an abrupt halt last year, told ZDNet that costs were repeatedly brought into the discussion, but it wasn't about the quantum so much as the principle of the liability for costs.
"The content owners' principle being that they want to stop what they described as losses, by having ISPs incurring costs by harassing customers," he said.
"Our principle was that according to law, we have no obligation to incur costs by protecting third parties' rights."
He said the ISPs' proposed model that Hutley rejected was more than the content industry had put up.
"It's not our industry's job to do their work for them, and that includes putting proposals forward to solve their problem," he said.
"The only proactive steps they've taken is lobbying incessantly with cries of 'somebody do something' [and] failing miserably in the High Court to prove that ISPs are at fault for their failed business model."
Hutley said that one reasonable measure would be for ISPs to slow down a customer's service when they are caught infringing, so they can contact the ISP to be educated on legal alternatives to copyright-infringing material. She said this would be no different to when a customer's download speed is slowed when they exceed their monthly limit.
"They clearly have the ability to pretty much know what people are doing. All we ask, and what we did ask previously, was work with us to find a way so that a subscriber you have — who we would never know given the nature of your dynamic IP addresses and what happens on your network — please find a way to communicate with them that there are options, and what they're actually doing does infringe," she said.
Music Rights Australia would not seek the details of the customer, and had no interest in suing individuals for infringing on copyright, she said.
"We don't want to know who the subscriber is. We want the subscribers generically to be educated to change their behaviour," she said.
"I personally do not want to go and sue that person because it won't work, and it won't have any effect."
Last week, it was reported that film studios are considering pressuring Netflix to stop accepting Australian credit cards to prevent the estimated 50,000 to 200,000 Australian subscribers accessing the US video-streaming service through a virtual private network.
While local video-on-demand service Quickflix itself is calling for Netflix's "free ride" in Australia to be brought to an end, Tim Parsons, the former chief technology officer for Quickflix said that some studios that own the rights might ultimately decide that it is more worthwhile to not enforce their rights.
"If you have a Hollywood deal, you're supposed to enforce restrictions on your credit cards, so you can see [Netflix] kind of providing a huge income stream to creators, and at the same time, they're disrupting themselves," he said.
"Those studios have to be kind of smart about it [and] make a conscious decision about whether they're going to enforce their rights or not. Whether actually not enforcing their rights is going to generate more value than enforcing their rights."