Brandis claims consumer interests to factor in copyright review

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.
Written by Chris Duckett, Contributor

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.

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