Brandis claims consumer interests to factor in copyright review

Brandis claims consumer interests to factor in copyright review

Summary: The official release of a leaked discussion paper from the Australian Attorney-General's Department has given the public and industry a month to provide submissions on its proposals.


After the leaking of its online copyright infringement discussion paper last week, Attorney-General George Brandis and Communications Minister Malcolm Turnbull have said that consumer interests will play a key role in the development of an infringement scheme.

"The Government would not expect any industry scheme or commercial arrangement to impose sanctions without due process, or any measures that would interrupt a subscriber's internet access," the official version of the paper said.

However the paper reiterates the government's assertion that despite the 2012 High Court judgment that iiNet did not authorise its users' copyright infringement, an ISP can still take "reasonable steps" to deter copyright infringement, even if the ISP does not have a direct power to prevent the infringement from occuring. To rectify the situation and reverse the High Court's ruling, the government proposing to extend the application of authorisation liability definition in the Copyright Act to require a court to consider the "power to prevent" an infringing act as part of a process to determine if reasonable action was taken to avoid infringement.

"The amendments would clarify that the absence of a direct power to prevent a particular infringement would not, of itself, preclude a person from taking reasonable steps to prevent or avoid an infringing act," the paper said.

The definition of a "reasonable step" is left open, and the paper states that the government is looking to the industry to determine steps that do not disadvantage the ISPs, or burden them with "unreasonable costs".

The industry lobby group representing Australia's major telco companies, Communications Alliance, urged caution around several of the reform proposals, and said that careful consideration was needed regarding the proposal to extend the authorisation liability within the Copyright Act.

"We do not share the view in the discussion paper that the High Court's decision in Roadshow Films Pty Ltd v iiNet Ltd (April 2012) undermines Australia's international obligations, nor that there is any obligation in Australia’s free trade agreements that means the Copyright Act must be amended to extend authorisation liability," Communications Alliance CEO, John Stanton said.

"This [authorisation liability extension] proposal has the potential to capture many other entities, including schools, universities, libraries and cloud-based services in ways that may hamper their legitimate activities and disadvantage consumers."

As a co-signatory to the paper, Turnbull's involvement in the creation of the discussion paper is at odds with supportive statements he made at the time of the 2012 High Court ruling that found in favour of iiNet.

"I think the High Court came to the right decision and I really welcome it," Turnbull said at the time. "It is very, very, very difficult if not impossible for someone that is just selling connectivity, just providing bandwidth to then be monitoring what people are doing."

"So the owners of that copyright have got to be in a position where it can be released simultaneously theatrically, or in the case of something like that on Pay TV everywhere. But also, it should be for sale through the iTunes store or various other platforms at the same time.

"And if they can download, they will. Now we’re just kidding ourselves — all they are doing is throwing money away by not making it available instantly."

The government has not backed away from erroneous claims made in a 2012 PricewaterhouseCoopers report that the copyright industry made up more than 900,000 people, or almost 8 percent of Australia's entire 11.6 million workforce, by including not only content producers, but anyone involved in the process of content creation, including art gallery curators, picture framers, cable TV installers, photocopier and paper salespeople, musical instrument repairers, and even those employed in the transport industry.

Calling out the impact on caterers as well as actors, and directors, Foxtel said the discussion paper was a positive step to protect the work of the livelihoods of those involved in content production.

"Government should put in place a regulatory system that encourages legitimate use and discourages illegitimate use of content, while content owners need to make content available quickly and conveniently," Foxtel CEO Richard Freudenstein said. "For its part, Foxtel goes to great lengths through its 'Express from the US' effort to bring content to subscribers as soon as possible."

A spokesperson for Shadow Attorney-General Mark Dreyfus, who backed an education notice scheme when in government, said that Labor would likely wait until it saw the legislation to respond.

Submissions in response to the discussion paper's proposals close on September 1 2014.

Topics: Privacy, Government AU, Australia


Chris started his journalistic adventure in 2006 as the Editor of Builder AU after originally joining CBS as a programmer. After a Canadian sojourn, he returned in 2011 as the Editor of TechRepublic Australia, and is now the Australian Editor of ZDNet.

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  • Borderline corruption

    Dear Uncle Rupert,

    Thank you for helping us get elected! Now that we've successfully undermined the idea of fast, universal broadband in Australia; here's that other policy we promised you to help protect your outmoded business model for a few more years.

    We remain as ever your faithful servants,

    Tony, George and Malcolm
    James Beattie
    • A Lost Cause

      Unless the public wakes up & boycotts all Rupert's products to perhaps reduce this parasite's political influence.
    • PS Rupert...

      ... just in case you are thinking about getting hitched again (Rebecca's out free you know) don't forget I'm available as a wedding dancing jester for only a couple of k. I know I had to pay it back to the Australian taxpayers last time, but I'm sure we can come to an arrangement,


      Georgey Porgey, aka the Big B
  • LOL.

    I just love the way some industries tied down others by "international law".

    Who would think that biggest threat to the democracy nowadays would be.. international law.
    (Look at New Zeland "software patents" 98% of affected - programmers - do not want it. Gov. is tied by "international law"....)

    ISP have no knowlege what so ever if You have ANY authorization. No 100% certaintity.

    Lets take simple example - torrents:

    I get my fully legal Operating System (OpenSuSE), by torrents. And one can find (fully legal) iso's on all major torrent tracking websites.

    So can ISP block those sites?

    No. They can not. As they can not know if I obtained authorization to that torrent download from copyright owner.

    Same is repeatable for all content.

    And what about when copyright owner want intervention?
    1) ISP is not the court.
    2) Content may be exempted from copyright protection (parodies, public domain, copyright owner do not hold rights to whole content - often case for news that contain 3rd party copyright ... , etc.)

    So again ISP have no way to know for sure if user have proper authorization.

    And best of all. ISP move traffic.

    Thats that. Nothing more, nothing less. With big emphasis on "traffic" as unified bunch of bytes that have addressed to and from.

    Forcing ISP to police internet force them to investigate those bytes...
    Personal photos, personal mail, corporate trade secrets, whatever get checked.
    Not acceptable*

    (*Exception: child porn)
    • *Exception: child porn

      Unfortunately I must go outside the current view and yours stated here. Nothing in the way of filtering by my ISP is acceptable. End of story.

      For ISPs to filter child porn several thing have to be in place with makes filtering onerous or pointless..
      1. The Authorities are aware of it. They need to remove it, NOW. Not abrogate responsibility to a commercial entity.
      2. You have to be prepared for all your transmitted data to be scanned (something your obviously not happy with) including the most heavily encrypted traffic.
      3. You have to be prepared to hand over the encryption keys and passwords to your ISP so they can do the scanning.

      See your sure you want to give an exemption for anything now? If so, just remember that over 100 years ago Benjamin franklin said “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”. 1984 is here now
      • Good point. One reason some people support censorship 'for child porn' is that once the system to do that is in place, it's an easy matter for a govt to 'refine' the process to include blocking other things.

        This could include matters which are not illegal, but which the govt (or it's mates) would like to keep out of sight, such as political criticism or alternative content sources.
  • infringement scheme

    "consumer interests will play a key role in the development of an infringement scheme."

    I as a consumer will support no infringement scheme until content providers are held to account in regards to their dodgy pricing and late releases in this country.

    We are charged significantly more.
    We have to wait longer before we can pay more. In some cases years in some cases we can never legally obtain the content!

    This is no longer acceptable in the past we had to pay more for shipping and higher wages. With digital distribution this no longer exists data centres can be hosted anywhere call centre staff are located in India or the Phillipines.

    No wonder these companies are recording massive increases in profits yet we as consumers are the ones being lined up to be slaughtered by Turnbull and Brandis.

    Consumers have no say in this
  • they still have to get this past the Senate

    It's going to be interesting. Here is a government that is polling badly and it is willing to go worse in the polls to try to legislate what most people consider an irrelevant irritant. They must owe one helluva lot of favours to waste all of that political capital. I used to think that One Term Tony was smart but he seems to be politically dumb.
    The interesting part is what will the Labor Party and the Greens do and of course, the PUPs. When in power, Senator Conjob did his best to filter and impede the internet at every turn. He eventually gave up. His government died under his feet because, although he wanted to block and filter the net, he wanted to put the blame on someone else and he ran out of time. This is just like the current pack of dodos who want to filter, block, impede or something and they want to blame our international obligations. That is a selective argument as they ignore those international obligations for boat people. Hmmm, a bit of inconsistency? In my opinion, we should be ignoring our international obligations consistently, not pick and choose those that suit our political drift.
    So what will Electrcity Bill (aka Short Circuit) do? Will they oppose this or will they be consistent and support the government? For once, I hope that the are inconsistent and block this legislation when it appears.
    The government are probably being dishonest when they say they are allowing for community consultation. The result is probably a foregone conclusion. They will do their darndest to implement it, just like Senator Conjob, and hopefully they will fail.
  • Foxtel

    Foxtel CEO Richard Freudenstein said. "For its part, Foxtel goes to great lengths through its 'Express from the US' effort to bring content to subscribers as soon as possible."

    And good on Foxtel for doing one third of of whats needed.

    Now you just need to work on the expense, ads on a paid service and supplying only the channels I want and I'll consider using you again...
  • Foxtel never does

    what is in consumers interests, only his companies interests.

    Their ONLY interest is their profit & their stock holders. I don't have a problem with that, but come on! there's a better way, but they don't want to give up the monopoly control they wield over their Australian customers.

    If Netflix & Hula+ can provide a profitable product for $10/month I expect Foxtel & others to market their products competitively & not to robbed.

    They don't provide a competitive or good selection of program material at present because they all operate as a cartel. The customer has very little choice, has to contend with endless advertisements & very restricted program material, which they get to choose... their attitude is "to hell with the customer!"

    The Foxtel CEO says he tries hard to provide programs in a timely manner.. Well I'm sorry, he doesn't & he only provides us with what they select!

    He & the other providers only give us what THEY select, compared to the 100's of programs we never get to see from overseas because they geo block almost all overseas sights which are less expensive & competitive by comparison...

    They wont change & this ISP police proposal is a nonsense only our pin head AG could dream up in support of the top end of town.
  • Flavour of the month

    Vote Labor at the next election get rid of the LNP monkeys. See what Labor can do without Rudd and Gillard influencing the flavour of the month.
  • The consumers get a month...

    to send their submissions, Brandis has been bedded down with the carpetbaggers for months getting his TPP sellout ready... love to see his expense claims for the 'meetings'...
  • Those 'Expense Claims'

    These same con artists simply get to pay back some of their expense rorts when caught out with their snouts in the trough but that 'traitor' Slipper gets his 'just desserts' via a conviction.
    Now tonight on TV Turnbull claims we're "stealing" if we torrent a Linux Distro.