Piracy discussion paper focuses on copyright stick not content carrot

If we are to understand the government's move to crack down on online copyright infringement from its now-officially-released discussion paper, the plan is to disproportionately address the symptoms without addressing the underlying causes.

Censoring websites and forcing ISPs to police their consumers' internet use seems to be the main thrust of the questions arising from the discussion paper released by Attorney-General George Brandis and Communications Malcolm Turnbull yesterday.

The justification for the proposal seems to rely on a PriceWaterhouseCoopers claim in a 2012 report (PDF) prepared for the Copyright Council that the content industry in Australia has more than 900,000 people employed and generates economic value of "more than $90 billion".

Which not only included film and TV show makers but also caterers, blank disc makers, jewellry makers, and even journalists — whose content, incidentally, would not be protected from infringement under any of the government's proposed measures.

Then at the same time, one of the discussion questions claims the government can't estimate how much copyright infringement is costing Australia, so there needs to be a way to quantify the impact of any scheme.

So the government is relying on a report prepared by the copyright industry to lobby for copyright infringement proposals, and then the government admits it has no way of estimating the overall impact of copyright infringement in Australia.

The paper's opening paragraph references the underlying cause of copyright infringement, that is "the availability and affordability of lawful content", but then almost nothing in the paper puts the onus on copyright holders to make that content more available in the first place. 

Of the 11 questions put to stakeholders in the paper, there is just one question asking if there might be "alternative measures" from rights holders, ISPs, and other stakeholders to reduce online copyright infringement.

Despite the unfortunate return of the comparison between copyright infringement and stealing a DVD that was rightly mocked by The IT Crowd a few years ago, Communications Minister Malcolm Turnbull's comments on ABC this morning were heartening, with the minister stating that content owners do have a role to play in addressing piracy.

"There is an obligation on the content owners. If their concerns are to be taken seriously, and they are, by government, and if governments are going to take action to help them prevent piracy then they have got to play their part, which is to make their content available universally and affordably," he said.

"I'm not suggesting the government should be setting prices here, but I'm just saying that if you want to discourage piracy the best thing you can do... is to make your content available globally, universally, and affordably," he said.

They would also have to pay for a scheme, he indicated, which would bring some relief to the ISPs.

"Well the cost belongs to the rights holder, that's right. There are some people in the content industry who believe that the costs of this should be borne in whole or in part by the telecommunications sector — by the ISPs," he said.

"I don't find that a particularly persuasive argument."

But none of that is reflected in the discussion paper released by the government. From the paper alone, the government appears to be entirely focused on lumping responsibility for copyright enforcement on ISPs and punishing customers for doing it in the first place, while letting content owners continue with the status quo of delayed content at prices and in formats that Australians aren't willing to accept.

One the one hand, we have the arts minister and attorney-general playing the bad cop punishing infringers and ISPs to please the content owners, and on the other hand we have the communications minister as the good cop trying to keep the ISPs and consumers on side by talking about making content more easily available.

Without mandating prices or access, as Turnbull seems reluctant to do, it's unclear what, if any, action the government could take to get affordable content made available in Australia when and where consumers want it.

For now, it seems like any new legislation brought in will be all about making it harder for customers and ISPs. As one executive remarked to me recently, the government is being very small government when it comes to the copyright industry, and very big government when it comes to consumers and the telecommunications industry.