Something Like a Public Consultation

The Australian government often engages in public consultation on a variety of matters. This is a good thing, because it provides an opportunity for us to participate in our governance. One such recent consultation was from the Attorney-General’s Department on Online Copyright Infringement. I quote:

On 30 July 2014, the Attorney-General, Senator the Hon George Brandis, and the Minister for Communications Malcolm Turnbull MP released a discussion paper on online copyright infringement.

Submissions were sought from interested organisations and individuals on the questions outlined in the discussion paper and on other possible approaches to address this issue.

Submissions were accepted via email, and there was even a handy online form where you could just punch in your answers to the questions provided. The original statement on publishing submissions read:

Submissions received may be made public on this website unless otherwise specified. Submitters should indicate whether any part of the content should not be disclosed to the public. Where confidentiality is requested, submitters are encouraged to provide a public version that can be made available.

This has since been changed to:

Submissions received from peak industry groups, companies, academics and non-government organisations that have not requested confidentiality are being progressively published on the Online copyright infringement—submissions page.

As someone who in a fit of inspiration late one night (well, a fit of some sort, but I’ll call it inspiration), put in an individual submission I am deeply disappointed that submissions from individuals are apparently not being published. Geordie Guy has since put in a Freedom of Information request for all individual submissions, but honestly the AGD should be publishing these. It was after all a public consultation.

For the record then, here’s my submission:

Question 1: What could constitute ‘reasonable steps’ for ISPs to prevent or avoid copyright infringement?

In our society, internet access has become a necessary public utility.  We communicate with our friends and families, we do our banking, we purchase and sell goods and services, we participate in the democratic process; we do all these things online.  It is not the role of gas, power or water companies to determine what their customers do with the gas, power or water they pay for.  Similarly, it is not the role of ISPs to police internet usage.

Question 2: How should the costs of any ‘reasonable steps’ be shared between industry participants?

Bearing in mind my answer to question 1, any costs incurred should rest squarely with the copyright owners.

Question 3: Should the legislation provide further guidance on what would constitute ‘reasonable steps’?

The legislation should explicitly state that:

  1. Disconnection is not a reasonable step given that internet access is a necessary public utility.
  2. Deep packet inspection, or any other technological means of determining the content, or type of content being accessed by a customer, is not a reasonable step as this would constitute a gross invasion of privacy.

Question 4: Should different ISPs be able to adopt different ‘reasonable steps’ and, if so, what would be required within a legislative framework to accommodate this?

Given that it is not the role of ISPs to police internet usage (see answer to question 1), there are no reasonable steps for ISPs to adopt.

Question 5: What rights should consumers have in response to any scheme or ‘reasonable steps’ taken by ISPs or rights holders? Does the legislative framework need to provide for these rights?

Consumers need the ability to freely challenge any infringement notice, and there must be a guarantee they will not be disconnected.  The fact that an IP address does not uniquely identify a specific person should be enshrined in legislation.  The customer’s right to privacy must not be violated (see point 2 of answer to question 3).

Question 6: What matters should the Court consider when determining whether to grant an injunction to block access to a particular website?

As we have seen with ASIC’s spectacularly inept use of section 313 of Australia’s Telecommunications Act to inadvertently block access to 250,000 web sites, such measures can and will result in wild and embarrassing unintended consequences.  In any case, any means employed in Australia to block access to overseas web sites is exceedingly trivial to circumvent using freely available proxy servers and virtual private networks.  Consequently the Court should not waste its time granting injunctions to block access to web sites.

Question 7: Would the proposed definition adequately and appropriately expand the safe harbour scheme?

The proposed definition would seem to adequately and appropriately expand the safe harbour scheme, assuming the definition of “service provider” extends to any person or entity who provides internet access of any kind to any other person or entity.  For example, if my personal internet connection is also being used by a friend, a family member or a random passerby who has hacked my wifi, I should be considered a service provider to them under the safe harbour scheme.

Question 8: How can the impact of any measures to address online copyright infringement best be measured?

I am deeply dubious of the efficacy and accuracy of any attempt to measure the volume and impact of copyright infringement.  Short of actively surveilling the communications of the entire population, there is no way to accurately measure the volume of copyright infringement at any point in time, hence there is no way to effectively quantify the impact of any measures designed to address online copyright infringement.

Even if the volume of online copyright infringement could be accurately measured, one cannot assume that an infringing copy equates to a lost sale.  At one end of the spectrum, a single infringing copy could have been made by someone who would never have been willing or able to pay for access to that work.  At the other end of the spectrum, a single infringing copy could expose a consumer to a whole range of new media, resulting in many purchases that never would have occurred otherwise.

Question 9: Are there alternative measures to reduce online copyright infringement that may be more effective?

There are several alternative measures that may be more effective, including:

  1. Content distributors should ensure that their content is made available to the Australian public at a reasonable price, at the same time as releases in other countries, and absent any Digital Restrictions Management technology (DRM, also sometimes erroneously termed Digital Rights Management, which does more to inconvenience legitimate purchasers than it does to curb copyright infringement).
  2. Content creators and distributors should be encouraged to update their business models to accommodate and take advantage of the realities of ubiquitous digital communications.  For example, works can be made freely available online under liberal licenses (such as Creative Commons Attribution Share-Alike) which massively increases exposure, whilst also being offered for sale, perhaps in higher quality on physical media, or with additional bonus content in the for-purchase versions.  Public screenings, performances, displays, commissions and so forth (depending on the media in question) will contribute further income streams all while reducing copyright infringement.
  3. Australian copyright law could be amended such that individuals making copies of works (e.g. downloading works, or sharing works with each other online) on a noncommercial basis does not constitute copyright infringement.  Changing the law in this way would immediately reduce online copyright infringement, because a large amount of activity currently termed infringement would no longer be seen as such.

Finally, as a member of Pirate Party Australia it would be remiss of me not to provide a link to the party’s rather more detailed and well-referenced submission, which thankfully was published by the AGD. We’ve also got a Pozible campaign running to raise funds for an English translation of the Dutch Pirate Bay blocking appeal trial ruling, which will help add to the body of evidence demonstrating that web site blocking is ineffective.

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