While consumer groups might be left out in the cold on any copyright infringement scheme discussions, Communications Minister Malcolm Turnbull and his department might be the key to ensuring Attorney-General George Brandis' scheme isn't as hardline as copyright holders may want.
The Australian government is moving ahead with a policy to crack down on Australians infringing on copyright by downloading TV shows and films over the internet, one way or another. That much is clear from what has been able to be pried out of the government either in Estimates, or through documents we've been able to obtain under Freedom of Information.
What is less clear, however, is what the scheme will ultimately look like. Will it balance consumer rights with content owner rights, or will the balance shift completely? Will users be educated, or warned, or punished, fined, or chased through the courts?
There's also a question of who should be responsible for it. Brandis is of the view that ISPs have an obligation to protect the work of rights holders, but many ISPs are of the view that it is not their job to be the copyright police for a system that ultimately might fail, especially if the content Australians are downloading isn't available in a timely and affordable manner, in the format that a customer wants.
Brandis, who has declared that it is the public interest to clamp down on copyright infringement, has skirted around questions on whether he has met with consumer groups such as Choice or the Australian Communications Consumer Action Network (ACCAN). Instead he has argued that the "public interest" is in protecting copyright.
But Turnbull's previous comments on copyright indicate he appears to adopt a more pragmatic approach.
"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," Turnbull said in 2012.
He has recognised that copyright infringement in Australia is largely a symptom of the content not being available here.
"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," he said.
"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."
Emails between the two ministers' departments obtained by ZDNet also reveal that while the Attorney-General's department is focused on what the rights holders want: a notification regime and "injunctive relief", the Communications Department appears to have a more fleshed out strategy that takes in all sides of the debate.
Graduated response is being actively considered, that much we already know. What the Department of Communications emails reveal is that while Brandis is concerned about protecting copyright, Turnbull seems, at least, concerned about the underlying causes of copyright infringement. Making content available legitimately, and ensuring fair pricing will be crucial, not only to making any such scheme effective, but also to win over those who will just see it as the government doing favours for its donors.
The debate then becomes more about what is the actual definition of fair pricing and access to legitimate content. Will the government say the content is all available through a Foxtel subscription?
Foxtel has improved its product offering, timing of TV show screenings, and the pricing is far more reasonable than it has been in the past. The negative feedback always centres around people not wanting to pay for all the Foxtel channels when they only want one or two TV shows. That, or they argue that they're ideologically opposed to Foxtel because of either of its owners — Telstra and the Murdoch-dominated News Limited.
Quickflix itself is vastly improving over how it started, with the company almost weekly announcing new content deals it has signed, and the recent price drop for streaming content will eventually make it a decent rival to Netflix — should it ever beat the hype and actually launch in Australia. Whatever happens, due to the complicated content business model in Australia, there will unfortunately still be higher fees for customers wanting to access the latest and greatest TV shows and movies.
While Turnbull and his department as a whole will be there to argue the case for not overly burdening the ISP industry with any major new copyright scheme, ultimately the decision on the policy will be Brandis'. We know Brandis and his department has been meeting with representatives for the copyright industry, and his refusal to confirm whether or not he has similarly met with consumer groups is telling.
If Turnbull is unsuccessful in watering down the final policy, perhaps the best course of action would be for consumer groups to look to how the government has run away from Brandis' other pet project, the overhaul of the Racial Discrimination Act, in the face of wide, and extensive public criticism of the policy.