Online Copyright Infringement Discussion Paper July 2014

The Paper, by consideration of the issue of authorisation, addresses a very practical development in commerce. Online copyright infringement is now not only about unauthorised uses of cinematograph films but has filtered down to become more prevalent amongst small to medium enterprises (SME), as some competitors embrace online trading by aggressively and often unlawfully, seeking market share. It is understandable that internet service providers (ISPs), as gatekeepers of internet traffic, may be considered as being more than a conduit of contravening conduct but not a joint tortfeasor involved in a common design. In between those extremes lies the concept of authorisation in copyright which has a long history in Australia since the Copyright Act 1905 (Cth). The text of s 101(1A) of the Copyright Act, in particular s 101(1A)(a) and (c), derived from statements of Gibbs J in Moorhouse.

Submission to the Australian Government’s Online Copyright Infringement Discussion Paper

Now is not the time to increase the strength of copyright law. Copyright law is facing a crisis of legitimacy: consumers increasingly appear to doubt its moral weight. To a large extent, this can be traced to the fact that Australian consumers do not believe they are being treated fairly by (predominantly US-based) copyright producers and distributors. Compared to their overseas peers, Australian consumers pay much more for access to books, films, television, and computer games, and are often subjected to long delays before material is available in Australia. Our research shows that this perceived unfairness increases the willingness of Australian consumers to seek out alternative distribution channels. Put simply, the failure of content distributors to meet consumer demand in Australia is a leading factor in copyright infringement. This submission argues that the best strategy to reduce copyright infringement in Australia, at the present time, is for distributors to focus on providing timely, affordable, convenient and fair access to copyright goods. Until this is done, the prevalence of copyright infringement in Australia should be seen as essentially a market problem, rather than a legal one. The Australian Government, meanwhile, should address the recommendations of the IT Pricing Report as a matter a priority. As a first step, the Government should urgently consider repealing the IP exception to competition law in s 51(3), as recommended by the Ergas committee, the IT Pricing report, and the ALRC. This change alone may go a long way to enhancing the efficiency of the copyright market in Australia.

Creative Commons Australia and Organization for Transformative Works submission to the Australian Government’s online copyright infringement discussion paper

This submission focuses on the adverse effects that the Government’s proposals are likely to have on the legitimate use of copyright works. Copyright exists to support the production of new expression. Because new expression always builds on existing culture, any extension of copyright protection necessarily also increases the costs of creative expression. As a threshold matter, we do not believe that these further increases to the force of copyright law are justified. In recent years, the balance at the heart of copyright law has tipped too far in the direction of established producers and distributors, and now imposes unnecessary costs on ordinary creators. The available evidence does not support a further increase in the penalties and enforcement mechanisms available under copyright law.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

The legitimacy of graduated response schemes in copyright law

In an attempt to curb online copyright infringement, copyright owners are increasingly seeking to enlist the assistance of Internet Service Providers (‘ISPs’) to enforce copyright and impose sanctions on their users.1 Commonly termed ‘graduated response’ schemes, these measures generally require that the ISP take some action against users suspected of infringing copyright, ranging from issuing warnings, to collating allegations made against subscribers and reporting to copyright owners, to suspension and eventual termination of service.

Copyright vision : copyright jails

This article, published in ON LINE Opinion on 26 October 2006, discusses the broad ranging amendments to the Copyright Act which (in part) implement obligations under the Australia-US Free Trade Agreement (AUSFTA) which were introduced into parliament on October 19, 2006. It covers issues relating to the criminalisation of copyright infringement, user rights and liabilities, and Technological Protection Measures (TPMs).

iiNet’s Hollywood ending : what does its court victory mean for copyright law?

In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry movie studios. The case was a final appeal by the industry in its attempts to crack down on internet users infringing copyright by using BitTorrent to download movies.

Are the offences in the Copyright Act 1968 (Cth) legitimate and effective? : an analysis based in harm and social norms theory

This thesis examines the effectiveness of offences in the Copyright Act 1968 (Cth) in the online environment. The application of social norm theories suggests that the offences will be ineffective in creating an effective deterrent to non-commercial copyright infringement.

The game of clones and the Australia tax : divergent views about copyright business models and the willingness of Australian consumers to infringe

It is often said that Australia is a world leader in rates of copyright infringement for entertainment goods. In 2012, the hit television show, Game of Thrones, was the most downloaded television show over bitorrent, and estimates suggest that Australians accounted for a plurality of nearly 10% of the 3-4 million downloads each week. The season finale of 2013 was downloaded over a million times within 24 hours of its release, and again Australians were the largest block of illicit downloaders over BitTorrent, despite our relatively small population. This trend has led the former US Ambassador to Australia to implore Australians to stop 'stealing' digital content, and rightsholders to push for increasing sanctions on copyright infringers. The Australian Government is looking to respond by requiring Internet Service Providers to issue warnings and potentially punish consumers who are alleged by industry groups to have infringed copyright. This is the logical next step in deterring infringement, given that the operators of infringing networks (like The Pirate Bay, for example) are out of regulatory reach. This steady ratcheting up of the strength of copyright, however, comes at a significant cost to user privacy and autonomy, and while the decentralisation of enforcement reduces costs, it also reduces the due process safeguards provided by the judicial process. This article presents qualitative evidence that substantiates a common intuition: one of the major reasons that Australians seek out illicit downloads of content like Game of Thrones in such numbers is that it is more difficult to access legitimately in Australia. The geographically segmented way in which copyright is exploited at an international level has given rise to a ‘tyranny of digital distance’, where Australians have less access to copyright goods than consumers in other countries. Compared to consumers in the US and the EU, Australians pay more for digital goods, have less choice in distribution channels, are exposed to substantial delays in access, and are sometimes denied access completely. In this article we focus our analysis on premium film and television offerings, like Game of Thrones, and through semi-structured interviews, explore how choices in distribution impact on the willingness of Australian consumers to seek out infringing copies of copyright material. Game of Thrones provides an excellent case study through which to frame this analysis: it is both one of the least legally accessible television offerings and one of the most downloaded through filesharing networks of recent times. Our analysis shows that at the same time as rightsholder groups, particularly in the film and television industries, are lobbying for stronger laws to counter illicit distribution, the business practices of their member organisations are counter-productively increasing incentives for consumers to infringe. The lack of accessibility and high prices of copyright goods in Australia leads to substantial economic waste. The unmet consumer demand means that Australian consumers are harmed by lower access to information and entertainment goods than consumers in other jurisdictions. The higher rates of infringement that fulfils some of this unmet demand increases enforcement costs for copyright owners and imposes burdens either on our judicial system or on private entities – like ISPs – who may be tasked with enforcing the rights of third parties. Most worryingly, the lack of convenient and cheap legitimate digital distribution channels risks undermining public support for copyright law. Our research shows that consumers blame rightsholders for failing to meet market demand, and this encourages a social norm that infringing copyright, while illegal, is not morally wrongful. The implications are as simple as they are profound: Australia should not take steps to increase the strength of copyright law at this time. The interests of the public and those of rightsholders align better when there is effective competition in distribution channels and consumers can legitimately get access to content. While foreign rightsholders are seeking enhanced protection for their interests, increasing enforcement is likely to increase their ability to engage in lucrative geographical price-discrimination, particularly for premium content. This is only likely to increase the degree to which Australian consumers feel that their interests are not being met and, consequently, to further undermine the legitimacy of copyright law. If consumers are to respect copyright law, increasing sanctions for infringement without enhancing access and competition in legitimate distribution channels could be dangerously counter-productive. We suggest that rightsholders’ best strategy for addressing infringement in Australia at this time is to ensure that Australians can access copyright goods in a timely, affordable, convenient, and fair lawful manner.

Why Australians should back Turnbull in the stoush over copyright

Attorney-General George Brandis is at loggerheads with Communications Minister Malcolm Turnbull over proposed reforms to the Copyright Act. Brandis wants ISPs to take more responsibility for copyright infringement by their users. Turnbull says that they shouldn’t be required to police their subscribers’ activities. Here’s how to understand what’s at stake in the debate.

Copyright in 2014 : the year in review

Speakers reflected on the various developments that have occurred in copyright in 2014, from the February release of the ALRC Report on Copyright in the Digital Economy to the Attorney-General’s public consultation on online copyright infringement, as well as corresponding developments in the UK and EU.

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Submission to Communications Alliance Industry Code: Copyright Notice Scheme

In making this submission, we suggest that Australia learn from the experiences of other jurisdictions, and avoid some of the mistakes that have been made. In particular, this involves: * Ensuring that adequate information is available to evaluate the success of the scheme * Ensuring that notices sent to consumers provide full and accurate information that helps them understand their rights and options * Limiting the potential abuse of the system, and particularly attempts to intimidate consumers into paying unfair penalties through ‘speculative invoicing’ * Avoiding the potential for actual or perceived bias in the scheme’s oversight body

An elegy for Greg Ham: Copyright law, the Kookaburra case, and remix culture

The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry Copyright and the Digital Economy. This article provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The ‘Kookaburra’ case also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works – including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham – paying tribute to the multi-instrumentalist for Men at Work.