Beware the spin behind Australia's copyright law discussion paper

Beware the spin behind Australia's copyright law discussion paper

Summary: Another week, another propaganda-driven proposal from the mind of Australian Attorney-General Brandis. This one assumes that ISPs need to fix other people's broken product distribution models.


The leaked discussion paper on online copyright infringement is proof that Australia's favourite Attorney-General, Senator George Brandis QC, has been utterly captured by narrow vested interests. Again.

It starts by assuming as fact a self-serving report produced for industry lobbyists. It swallows whole the dodgy claims that they face existential peril. And it frames the entire issue as "So, exactly how will ISPs be taking on their new responsibilities here?"

As ZDNet reported on Friday, the document, leaked to Crikey, is intended to be the starting point for public discussion on the very real issue of copyright infringement. Yes, real. There are indeed people creating or distributing things for which they expect to be paid, yet sometimes they are not being paid. Sometimes.

But the covering letter included with the paper, intended to be signed jointly by Brandis and communications minister Malcolm Turnbull, is such a ham-fisted exercise in propaganda and debate-framing that media studies lecturers should set its analysis as a class exercise.

"There are good reasons why all Australians should be concerned about online copyright infringement," it begins.

"According to a 2012 report, Australia's copyright industries employ 900,000 people and generate economic value of more than $90 billion, including $7 billion in exports. Digitisation means that these industries are particularly susceptible to harm from online copyright infringement with the potential to directly impact upon the Australian economy and Australian jobs. Online copyright infringement can hurt consumers as well. Consumers accessing materially unlawfully are not covered by consumer protection laws and may be exposing themselves to the risk of fraud and other forms of cybercrime. Further, children may be exposed to material that is not age appropriate."

Online copyright infringement also causes traffic jams, tooth decay, and the thing that prevents bees from pollinating flowers.

Yeah, let's look at that report, shall we?

In 2012, PricewaterhouseCoopers (PwC) produced The Economic Contribution of Australia's Copyright Industries 1996-97 to 2010-11 (PDF) for the Australian Copyright Council. That is, the copyright-holders lobby group commissioned this report to show how important copyright-holders are.

PwC has done a grand job, inflating the "copyright industries" to encompass nearly 8 percent of Australia's entire 11.6 million workforce. How? By including anything and everything that could possibly come under the copyright umbrella. Not just those "primarily involved in the creation, manufacture, production, broadcast and distribution of copyrighted works" — which includes movies, magazines, software, games, music, theatre, cards and graphic design — but also those who "support and facilitate the creation of copyrighted works" and their "performance, exhibition, broadcast, communication or distribution and sales".

The report is illustrated with a photograph of a filmmaker with his Arriflex camera, a visual artist at work, a painting by Charles Blackman, musicians and so on. Creators. But that 900,000 jobs figure actually covers everyone down to the staff at your corner newsagency, art gallery curators and picture framers, cable TV installers, photocopier and paper salespeople, musical instrument repairers — as well as all the people involved in supporting these activities with transport, telecommunications, computers and everything else they need to do their jobs.

The idea you're meant to swallow is that online copyright infringement threatens this vast $90 billion web of economic activity and 900,000 jobs. Why mention these numbers otherwise, right?

You're meant to forget that we're really only talking about movies and major TV series — specifically the interests of the Australian Screen Alliance, formerly the Australian Federation Against Copyright Theft (AFACT), the mob who lost their High Court copyright action against iiNet.

The very fact that Brandis and Turnbull are framing the debate around this one PwC report tells you everything you need to know about their biases — as well as their honesty and commitment to actual policy debate.

Sure, there's a ritual token mention of the need for copyright-holders to "ensure that content can be accessed easily and at a reasonable price", but none of the proposals address that, nor do any of the discussion questions. It's all about internet service providers taking "reasonable steps to ensure their systems are not used to infringe copyright". Whether ISPs should actually be required to take on that role is presumably not up for discussion.

All three proposals put forward are about changes to ISPs' responsibilities, including ISPs being made more directly responsible for preventing copyright infringement, and copyright-holders being able to apply for court orders requiring ISPs to block overseas websites, "the dominant purpose of which is to infringe copyright"?

The key problem with this framing is structural. It assumes there's a monolith called "copyright industries" which makes money by selling "copies", and that the internet, as the world's biggest data copying mechanism, allows people to make copies without paying, threatening the monolith.

Yet as the discussion paper itself admits, there isn't even a commonly accepted method for measuring the volume and impact of online copyright infringement. We're being asked to discuss how ISPs will address the problem before we've even established whether the problem is even worth worrying about.

How about we break up the monolith?

Try this framing.

Creators of movies and TV series want to show their creations to paying customers. Customers want to watch them. Distributors, — wholesale and retail — connect the two.

In the past, the distributors have pocketed most of the money. Shipping boxes of atoms, and leasing real estate in which to store and sell them, costs money. Broadcast spectrum doesn't come cheap either.

Now, though, the internet and its global payments systems can connect creators and customers far more cheaply. They allow businesses to be coordinated internationally. Indeed, the customers are paying for the storage media and display equipment their end, as well as the data transmission costs. The distribution costs are now almost nothing.

Consumers should be paying a fraction of the prices they are. But they're not. Because inefficient distribution businesses still want to insert themselves between the creators and the customers — extracting the same profits as when they used to herd people into barns to show them the moving pictures — and rights-holders are allowed to set up exclusive distribution deals, keeping prices artificially high.

Much as I said in 2009 in relation to the book industry, legislative reform shouldn't be about tweaking the details of an obsolete distribution system, or propping up businesses that fail to adapt.

It ought to be about encouraging more efficient distribution businesses that take advantage of new technology to give customers what they're after without soaking up most of the price.

Topics: Privacy, Government AU


Stilgherrian is a freelance journalist, commentator and podcaster interested in big-picture internet issues, especially security, cybercrime and hoovering up bulldust.

He studied computing science and linguistics before a wide-ranging media career and a stint at running an IT business. He can write iptables firewall rules, set a rabbit trap, clear a jam in an IBM model 026 card punch and mix a mean whiskey sour.

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  • the only pirates here are foxtel

    Yeah, its all well and good for big business to offshore jobs to India, and buy whitegoods and fashion from China, but when the consumer decides they can get a cheaper deal by going to Netflix or Hulu, suddenly its Piracy!
  • Copyright, IP and protecting the rent seekers and middlemen


    As Stil points out it is only the rent seekers and middlemen who profit from the current highly inefficient and unpopular (broadcast) business model. The content creators, the authors, the writers, the actors and the like are at one end of the chain adding value, the customer is at the other end of the chain providing moolah ... and in between we have the middlemen and distributor vampires sucking the life out of, and adding to the costs structures of, an industry model that should have died out years ago.

    In Murdoch's case he has a finger in both camps ... production and the obsolete distribution model ... and he seeks to protect both.

    As a consumer, I want to know why I can't watch or listen what I want, when I want, where I want, how I want, at a competitive price? Why do cable subscribers in the US pay less than 25% of what I do for their cable service, and have more than three times the number of channels. Why do I have to wait six, eight, twelve months for the more esoteric offerings that I enjoy? Why can't Fox bundle what it does for its US subscribers with Australian subscribers?

    And I ask this as a Premium (in excess of $120 pcm) Foxtel subscriber.

    I'd like George Brandis to start asking a few of these questions also ... and not to subscribe to the PwC garbage. And if you believed that tripe as 'research', George ... you get new marks for either gullibiity and I'd like to sell you some swamp land here on the Peninsula, or it's a sure sign you're in the industry's pocket. Either way, you're not looking after those who voted you into government. You're looking after those who pay for your representation.
    Frank O'Connor
    • I understand where your coming from,

      but you make it sound like its a right to get "watch or listen what I want, when I want, where I want, how I want, at a competitive price" and that certainly isn't the case. I think the market is slowly correcting itself anyway. After all there are a lot of people "cutting the cords" and replacing traditional cable services with cheaper services like Netflix and Hulu.

      Also amazon allows users an avenue to self publish book (although I believe book editors and publishers provide a much needed service while also filtering out bad content). This situation will slowly correct itself without drastic intervention from either side.

      However, there should be something in place to make it more difficult to obtain copyrighted content illegally. Right now it's just far too easy to download torrents and illegally stream videos. This could be remedied by making it harder to obtain the illegal content. At the same time the content producers (studios and such) should (but not because any law requires it) make their content more easily available online. If the studios and producers are smart they'll do this, cutting out the middleman while at the same time drastically increasing their own profit.
      • Business Model is the problem ...

        "However, there should be something in place to make it more difficult to obtain copyrighted content illegally."

        Oh I agree. But it shouldn't be the problem of the ISP and other incidental third parties to the obsolete business to take up the expense and the slack for deficiencies in that process. It shouldn't fall on the law abiding consumer (who will no doubt be charged for the increase in costs incurred by the ISP) to make up the costs of the deficiencies in the business model.

        The content industry stands to make a heap from digital distribution ... it reduces their costs phenomenally, gives them much wider client coverage than they have ever had with tape, disk and other physical forms, gets away from the downsides of the broadcast model vis-à-vis the consumer and allows them to seriously target their client demographics like they have never been able to before ... but they just can't see this.

        But the industry has a real talent and a seriously bad history for standing in the way of new technologies and distribution mechanisms (like tape, cassette tape, VCR tape, CD-ROM, and other disk, memory sticks and the like) that proved to be real money spinners when they eventually did ... and even, in my case and many others, got us to pay multiple times for what was effectively the SAME copyright.

        Now, I and many others are sick of their whining, sick of their so-called research (which if you extrapolated the exaggerated economic consequences would mean that the content industry was worth the whole world economy multiplied by a factor of 10) and sick of their attempts to get the taxpayer and third parties to pay for the cost of maintaining their stick-in-the-mud, rent seeking, non-value-adding man-in-the-middle business model at the expense of more rational, cost effective, consumer friendly alternatives.

        And I'm sick of paid-for old fogey politicians like George Brandis (and BTW, I am older than George), the LNP and the bloody Labor Party cosy-ing up to the bloody industry and believing its ridiculous protestations (even after making 5 consecutive years of increasing profit according to their own stats) of IMPENDING DOOM ... so that the industry never delivers fairer value and better service to we of the taxpayer and consumer persuasion.

        We support these industry leeches and vampires through tax concessions (which are routinely abused by the tax minimisation industry), through grants (so that they will make films, record music and whatever locally), through industry protection and quotas (and I can tell you now that there's no way 900,000 of the Australian work force ... about 10% of those working ... are involved in producing or otherwise dealing with video, movie and literary content) ... and now they want us to prop up a bloody business model with so many holes, with so much room to become more efficient, cheaper and effective that it is unbelievable ... because our politicians believe their PR and BS, or are paid by the industry machines, and like getting their pictures in the paper with 'personalities'.

        Makes about as much sense as buying the F35 Flying Turkey for $16 billion without even one entering service, a multitude of seemingly unrepairable faults and failures, that three years after its due date for operational deployment ... simply because politicians can get their pictures in the paper sitting in one. (But that's another story of government ineptitude and waste, isn't it?)
        Frank O'Connor
      • Hulu and Netflix

        I agree with what your saying, but those same services that would enable what your talking about are not avaliable unless you do something that these same people associate with piracy - use a VPN to pay reasonable prices to access content.

        I wont argue that people should use Netflix and Hulu because there is no point, if they were available people would. These same content groups put pressure on Hulu and Netflix to remove access to services via VPN, to geoblock, to deny payment from other countries, and a number of other processes to remove the ability for people like us to legally access content.

        People here cant cut the cord and still view content because these companies (looking at you FOXTEL) try very hard to make that impossible by restricting other ways to view the content. For someone to watch GoT in Australia will cost them $55 and episode. You will get other content thrown in, but thats not much value if all you really wanted was GoT and you dont watch much TV.

        I dont watch much TV, but I do love GoT, so I play the VPN hopping game to watch it legally but it gets harder and harder to do. Sooner or later ill just give up and join the other people pulling it of a torrent site. Not because I want to, but because the legacy industry doesnt want my money, unless they get it their way.
    • Get Rid of Foxtel

      Perhaps if we all avoided Foxtel & News Ltd products, Murdoch wouldn't have quite as much cash with which to buy our politicians?
  • So who shall we blame?

    It appears the Fed Govt are attempting to blame the "information superhighway" for not doing more to protect the company. What next? Shall each individual Aussie also be bound by the same sort of idea?

    It's a little like blaming the Princes Highway for being the chosen route of motorists involved in accidents when in fact speeding like a lunatic and not watching the road is often the reason. So next time I have a car accident in which I am at fault or not, should I sue the state Govt or the people of the state in total for not doing more to ensure that I knew how to drive?

    Wake up Brandis etc. Internet is basically the road upon which people do whatever it is they have in mind and ISPs are the connection to that road. Make the companies who wish their product
  • ~$90b in efficiencies to the economy

    In order words, online distribution would deliver ~$90b in efficiencies to the economy by eliminating inefficient industry practices. world class!