Three strikes doesn't deter copyright infringement

As incoming Attorney-General George Brandis looks to protect the interests of copyright owners, a new report out from Monash University law professor Rebecca Giblin has shown that the graduated response systems developed in other countries have not worked to deter online copyright infringement.

The report released on Friday examined the graduated response schemes in the UK, South Korea, New Zealand, the US, Taiwan, Ireland, and France.

Giblin's report found that in France, the so-called HADOPI system, which was dropped by the French government in May, had been slow to identify and process repeat infringers. Just four subscribers were prosecuted in three years of operation, and only three of those were convicted, all for failing to properly secure their internet connections rather than for copyright infringement.

Giblin's report also found that while copyright holders suggested that iTunes sales had increased as awareness of HADOPI grew in France, the sales of iTunes could also be lined up against awareness of the iPhone to produce a similar set of results. The report also said that the suggestion of a drop in peer-to-peer online copyright infringement also coincided with the rise of streaming music services, such as Spotify.

In New Zealand, where three strikes has been in place since 2011, copyright holders have claimed that there has been a significant drop in copyright infringement since the law came into effect, with the New Zealand Federation Against Copyright Theft (NZFACT) claiming that the number of major US films shared by NZ users has halved each month since the law came into effect.

But the report stated that another study had found that while P2P file sharing has decreased, the use of technologies to circumvent the scheme, such as HTTPS, has jumped, with users switching to other services such as online storage lockers instead of P2P.

There was no evidence of the success of the South Korean or Taiwanese systems, and although the Irish scheme has been in place for three years, Giblin found that there is no evidence suggesting that it has reduced online copyright infringement.

After six months, Giblin stated that it is still too early to state whether the US system is effective. Giblin suggests that data is being withheld at the request of the copyright holders.

"If there was any data suggesting that the US scheme was having the desired effect ... it is reasonable to expect that it would have been released," she said. "It is still early days, but the responses from stakeholders seem to confirm that there is currently no evidence in support of the US scheme's efficacy."

Giblin said that overall, there is no evidence of a link between a graduated response system and a reduction in copyright infringement.

"If 'effectiveness' means reducing infringement, then it is not effective. Furthermore, there is no convincing proof that any variety of graduated response increases the size of the legitimate market."

The report comes as the Australian Law Reform Commission (ALRC) is in the process of preparing a report for the government at the end of November that will likely make a number of recommendations around changing the Copyright Act to introduce a fair use regime that aims to be technology neutral.

Before the election had been decided, Brandis told ZDNet that changes in technology should not dilute the rights of copyright owners.

"My general approach to copyright and intellectual property issues is to be — I mean, there are no absolutes in this space, of course — but my general disposition is to be protective of the intellectual property rights of rights holders," he said at the time.

"I don't think that a change of platform or format should as a matter of logic or principle have the effect of diluting or attenuating the rights of rights holders."

Prior to the election, the Attorney-General's Department had also been looking to develop an industry-led response to online copyright infringement, which would include an "education notice scheme", where users are warned when their ISP is informed by the content owners that the user has infringed on copyright. The former government had indicated that its decision on whether to implement such a scheme would be included in its response to the copyright reform report, but Brandis said that copyright infringement notice schemes were not a policy that the Coalition would take to this election.

"I've discussed that with many stakeholders, but that is a matter we will discuss in the event we were to be elected. It is not a policy that we're taking to this election."