Australian government considers graduated response to piracy

The Attorney-General's Department has revealed the government is actively investigating a number of options to crack down on online copyright infringement, including the controversial graduated response scheme used in other countries.

Following the iiNet High Court victory against the consortium of film studios, formerly known as the Australian Federation Against Copyright Theft in 2012, most Australian internet service providers have been reluctant to negotiate with rights holders and the government over a voluntary system to crack down on Australian customers infringing on copyright by sharing films and TV shows over programs such as BitTorrent.

Previous negotiations held up until 2012 failed because the rights holders have been unwilling to agree to pay the costs of implementing such a system, according to the ISPs. The ISPs have said that the system asks ISPs to be "copyright cops", when the content owners do not make their content available in a timely and affordable manner in Australia.

In February, Attorney-General George Brandis delivered an ultimatum to ISPs to develop a voluntary system, or expect one to be legislated for them.

Yesterday, Brandis claimed he set out prior to the election the government's views on copyright, however, the only time he mentioned it prior to the election date was when asked by ZDNet.

"The government is of the view that there does need to be reform to copyright. One of the issues ... is piracy. Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks any effective protection against online piracy," he said.

"Australia, I'm sorry to say, is the worst offender anywhere in the world when it comes to piracy and I'm very concerned that the legitimate rights and interests of content creators are being compromised by that activity.

"We want to do something about that."

The Attorney-General has been meeting with a number of lobby groups on the issue of copyright since the election, and ZDNet understands that Neil Gane, the representative of AFACT, now the Australian Screen Association, has met with the department and the Attorney-General on a number of occasions. Emails obtained by ZDNet under Freedom of Information also highlight Gane's lobbying attempts to the department since the election.

When asked by Greens communications spokesperson Scott Ludlam whether he had met with consumer groups, such as Choice, to discuss the public interest factors in cracking down on copyright infringement, Brandis said the public interest was in protecting copyright.

"There is a very strong public interest in the protection of private property, and that includes the protection of intellectual property," he said.

The government this year cut AU$38 million from Screen Australia over the next four years in this year's budget, a move that will see the organisation support the creation of fewer Australian films and TV shows.

Brandis couldn't say whether he or the department had met with consumer groups since the election, but said he had met 'numberless' stakeholders on the issue over the years.

The Attorney-General's Department officials said there was a group of four people within the Civil Law Division working on copyright as an internal working group.

When asked whether the department was looking at replicating the so-called graduated response schemes used in countries like New Zealand, and the United States that see education notices sent to customers up as many as three times before penalties begin to apply, Andrew Walter Assistant Secretary for the Attorney-General's Department confirmed it was on the table.

"Yes, that's one option," he said.

Although Brandis still favours a voluntary industry-led system, he said that there had been little interest from most ISPs since the iiNet High Court case to come to the table on negotiations.

"A lot of the pressure on the ISPs to come to the table went away because the ISPs had a very comprehensive victory in the iiNet case," he said.

"Since the iiNet judgment came down, there has been less willingness from some ISPs to come to the table."

He said that not all ISPs were that way, and singled out Telstra — a 50 percent owner of pay television company Foxtel —as one company willing to negotiate.

"Only earlier in the month I had a very long conversation with [Telstra CEO David] Thodey and [Telstra's director of government relations James] Shaw. If I may say so publicly, I think Telstra's contribution to this issue, and their willingness to work to find a solution to the piracy issue — which is really unaddressed in Australia — has been very commendable."

Brandis said it was an area being "actively pursued" by the government at the moment.

It comes as the US Center for Copyright Information, which manages the Copyright Alert System in the US, put out its first report into the implementation of its graduated response system.

According to the report, in the 10 months since the launch of the system, 1.3 million alerts have been sent out, with 265 challenges to those alerts, with no false positives found. Approximately 70 percent of the alerts sent were in the first education stage, with less than 3 percent of the alerts in the final mitigation stage.

The report said there were 47 successful challenges to the alerts, but these were all based on unauthorised use of the accounts held by the customer.