TV and film companies must be prepared to take the unpopular step of suing individual members of the public for sharing infringing content online in order for any piracy deterrence scheme to be effective, according to Communications Minister Malcolm Turnbull.
The government's discussion paper into online copyright infringement this week outlines potential changes to legislation to compel internet service providers to intervene and deter their customers from downloading infringing TV shows, films, and music or be found liable for their users' actions.
Although proposed schemes to deter Australians from using BitTorrent and other technology to share infringing content online is not expressly outlined in the paper, in making the case for the need to crack down on copyright infringement in Australia, Turnbull this week has suggested that Australia adopt a system similar to that operating in the United Kingdom or New Zealand.
Under the New Zealand model, copyright owners send evidence of alleged infringement to internet service providers (ISPs), which investigate and issue notices to the account holder, charging the rights holders NZ$25 per notice. On the receipt of the third infringement notice, the copyright holder can then pursue the account holder through the newly-created Copyright Tribunal for damages of between NZ$275 and NZ$15,000.
Turnbull told Sky News yesterday that this model had the right balance between responsibility on ISPs and ensuring the content owners have methods in place to protect copyright, but said that it required ensuring rights holders were prepared to take people to court.
"Rights owners are not keen on taking people to court because it doesn't look good because it's bad publicity. What if the person you sue is a single mother? What happens it if it is a teenager? What if it is a retiree on a low income?" Turnbull said.
"The bottom line is, though, the rights owners are going to have to be tactical about who they take to court, who they want to sue.
Turnbull said that the only way to raise awareness and for people to stop infringing, was for the content owners to take the unpopular move of taking people to court.
"It is absolutely critical that rights owners have got to be prepared to actually roll their sleeves up and take on individuals," he said.
"They've got to be prepared to sue people, sue mums and dads and students who are stealing their content. They can't expect everyone else to do that for them."
Since the introduction of the New Zealand copyright graduated response scheme, there have been very few cases brought by content owners to the Copyright Tribunal, 17 decisions in total, and no cases have been decided this year. The average fine so far has been around NZ$500.
The Recording Industry Association of New Zealand (now Recorded Music New Zealand) is so far the only litigant to take infringers to the tribunal.
The content owners, under the New Zealand Federation Against Copyright Theft (NZFACT), said the infringement notice fee was prohibitive and also lobbied to have the fee for the notices reduced from NZ$25 to the cost of a postage stamp, but were rejected by the New Zealand government. As a result, NZFACT has yet to bring on any cases to the tribunal.
Partner with New Zealand law firm Lowndes Jordan, Rick Shera told ZDNet that it had been frustrating for the ISPs to spend so much money on implementing the infringement notice schemes only to find the content owners reluctant to use it.
"Putting such a system in place is not a trivial task and that NZ ISPs have been extremely annoyed to spend around a million dollars in aggregate on advice, system design, personnel training etc between them, only to find that NZFACT chucked its toys out of the cot and has never used the system of which it was the strongest proponent," he said.
The Australian government prefers placing the responsibility on rights holders rather than the ISPs, and Turnbull indicated yesterday that disconnection of internet services was not an option on the table, given he stood by his view that the iiNet 2012 High Court ruling in the ISP's favour was the right one.
"That decision was correctly decided. What the rights owners were saying about iiNet was that they were saying 'If we tell you that someone is breaching our copyright, you iiNet, have the obligation, at your expense, to write to them, to warn them, and then to terminate your contract with them'," he said.
"The court then felt that was unreasonable. I think that was correctly decided on the law as it stands."
One measure favoured by some content owners would be to throttle repeat infringers' download speeds, similar to when they exceed their monthly data limit. Turnbull said this was being considered but would be hard to implement.
"I think the practical ability to do that is very hard. I think it would be met from enormous resistance from both the public and the industry," he said.
Turnbull also said content availability and pricing was key.
"It is vital for the content owners to make their content available ubiquitously, that is globally, and make it available in an affordable manner," he said.
"People are entitled to price their products at whatever level they like, but if you want to prevent people unlawfully downloading and sharing your movies or songs ... make it available in a more affordable way."