EFA has mixed feelings on anti-piracy scheme


news Digital rights group Electronic Frontiers Australia has indicated there are both positive and negative aspects to a plan unveiled last week by the ISP industry to deal with Internet piracy.

The proposal is backed by major ISPs Telstra, Optus, iiNet, Internode and Primus, although other major players TPG, Dodo and Exetel have so far declined to back it. If enacted, it would see those pirating content such as films, TV episodes and games online served with warning and educational notices, with their details being provided to content owners through a subpoena legal process as a last resort.

The publication of the proposal represents the latest development in ongoing talks between the ISP and content industries over online copyright infringement in Australia, which have taken place both under the auspices of the Federal Attorney-General’s Department, as well as independently, in the shadow of the trial between iiNet and the Australian Federation Against Copyright Theft, which represents a coalition of film and TV studios.

The principal organisation representing the content industry in Australia, the Australian Federation Against Copyright Theft, has declined to comment on the proposal, being focused on its upcoming High Court legal action against ISP iiNet on the issue of online copyright infringement.

In a comment emailed after the ISPs’ discussion paper on the scheme was published, EFA chair David Cake firstly noted that the paper as honest in “representing this scheme as a response to rights holder lobbying”. Because of this, he said, the proposal had “no real value to consumers”, and limited value to ISPs as a means to demonstrate responsiveness to such lobbying.
“So it is hard to be positive about this scheme,” Cake said.

However, he added that the ISPs’ scheme proposed last week was “significantly less problematic” than similar initiatives which had been proposed by the content industry, and the EFA looked forward to consultation on the proposal.

The EFA strongly agreed with the Communications Alliance (which has acted as a focus for ISPs in developing the scheme) that any anti-piracy scheme must protect consumer rights to privacy, “to the full protection provided by the Australian legal system”, and the right to access the Internet. Notably, the scheme does not propose to terminate users’ Internet accounts, as some other jurisdictions have done internationally.

The EFA, Cake added, agreed that the costs of rights enforcement mechanisms should be borne by the content industry — as they were seeking to commercially exploit those rights — and it also agreed with the scheme’s focus on independent oversight.

Such independent oversight and an appeals process — described in the paper in one form as a panel to oversee much of the workings of the scheme — would, however, need consumer or civil society representatives, Cake wrote, with the model proposed by the ISPs being flawed because it lacked such representation.

The EFA, he added, also looked forward to discussion of funding models for the ISPs’ scheme.

“The funding model proposed by the Communications Alliance assumes that AFACT estimates of lost income represent income that is genuinely obtainable, in effect assuming that those who downloaded material for free in violation of copyright would be willing to pay the market price, which is not always true. It will be interesting to see if rights holders are willing to accept AFACT estimates when it is used to determine their funding contribution.

In a separate statement, EFA secretary Kimberley Heitman agreed that the proposal was “interesting” in that it attempted to change user behaviour through education, and that the EFA agreed with many of the principles. He hoped to see comment from peak consumer groups in submissions to the Communications Alliance on the proposal.

However Heitman added there were also concerns in the proposal which would need to be addressed — such as whether the content industry would itself change what he described as its “anti-competitive behaviour”, to help reduce the drivers for users to infringe copyright, whether the appeals process would be easy and cheap for end users, and whether the scheme would discourage the content industry from litigation.


  1. *the content industry would itself change what he described as its “anti-competitive behaviour”*

    marketing and distributing your IP in ways that maximise its economic value is “anti-competitive”?

    gimme a break.

    does the EFA want the ACCC to “declare” multimedia content, implement an “open access model” with arbitrated wholesale access pricing?

  2. Renai,

    What does Heitman mean by “anti-competitive behaviour”? Based upon the context I believe she may be referring to the tendency for the providers to release content in Australia late, and in inconvenient forms for today’s consumers, but I would hardly call that anti-competitive. Who precisely could the content owners compete with considering it is their own IP?

    If this is the case I’m not sure “anti-competitive behaviour” was the right term for her to use. Possibly “antiquated distribution model”.

    • I read that as being a comment on the way content providers lock up their content with exclusive deals that preclude other services from getting access to the kind of premium content that subscribers are prepared to pay for. Optus Vision had this problem when Foxtel stitched up exclusive rights to loads of sporting events and other channels that were taken from overseas licensees in packages. If emergent IPTV providers are restricted in the same way, their models (competition to Foxtel) will never get off the ground.

      I would have also added the delivery of first-run movies to this but I think there have been many changes in this market of late that have broken down what used to be an equally protected garden of competition; now it’s possible to get movies in so many ways, on-demand and IRL, that I’m not sure it’s anywhere near as problematically competitive as in the past.

      • mind you, in the early days of the pay-TV content battle, Optus Vision actually had the headstart on Foxtel by securing exclusive rights to AFL, ARL, Disney Channel, ESPN, MTV as well as a bunch of other sports.

        however, they subsequently lost those rights — so, it wasn’t a case of Foxtel dominating from day one.

        the bottomline is — there is COMPETITION for “content” and the rights for premium content generally go towards the highest bidder. there is no restriction on anyone participating in the bidding. in fact, the bidding for sporting rights is so competitive, the astronomical value of the winning bids are often international headline news.

        as a result, these rights will generally go to companies and organisations with substantial scale and audience reach which are in the best position to monetise or amortise the rights. nothing wrong there. it’s all part of the natural economic order.

        to label such outcomes as “anti-competitive” as a lazy reflex is plain erroneous, unless your definition of “competition” is a 100m sprint where every competitior has to be of same height, identical musculature, equal genetic endowment of fast-twitch muscles, same sponsorship dollars, etc.

        now, that’s just plain silly.

      • I doubt having quick and easy access to media will have any effect on piracy. It would probably just increase it. More sources for bit torrent.
        I am basing this off games (an area I worked in and who have tried more distribution models than movies and tv shows). Putting games on Steam with easier access and substantially lower price had no effect. In fact the games that had the highest piracy rates were available on Steam.
        There is probably a percentage who are honest, but a larger percentage who aren’t, who will offset any gains made by easier access to content.

        • Do you have any statistics to verify your claim that Steam has had no affect on the rates of privacy of games or are you going for the Ubisoft method of priacy rate analysis of “assume the worst in people thus completely alienate your customers”?

  3. Who else suspects it might be difficult to show legal ways of obtaining content as part of the “education”?

    If we are talking 100s of notices a month, when I suspect 100,000s of infringements are occurring, and with a 1 year wiping of the slate… It’s not hard to do the maths.

  4. Surprise the greedy content owners reject a valid proposal. Lets face a few inconvenient facts Toll road owners are not required to police users to see if they are either carrying stolen goods or are driving a stolen car just like the telephone lines are not monitored by the telcos for illegal activities that is and has always been the governments (content owners) responsibility. ISP should have no responsibility in this area at all. The content owners want the ISPs to bear the cost of monitoring and then they want to bar the use of their service to protect their content. They want ISP to stop internet access (UN has defined this as a human right which trumps content rights in any case) to force compliance. This is like saying to a parent that we will remove access to a child if you don’t exercise.
    Here is an idea to reduce the incidence of copyright infringement, change the copyright law as follows:
    1. If something has been broadcast on either pay tv or free to air (movies, series, sport, music etc) no copyright infringement occurs if it is down loaded electronically and used for personal use
    2. Reduce the protection time to something realistic for personal download and use, say 12 months from release
    3. Ban exclusive deals that lock up content to a single provider and allow content to be freely streamed (assuming no copyright is infringed ie reasonable payments are received by content owners) from anywhere in the world.
    4. Have content owners build realistic pricing models with immediate access to content lets say all video content owners agreed to allow unlimited personal use access for $200 a year and music for $150 a year. If content owners did this copyright infringement would fall dramatically.

    So in essence the issue of personal content copyright infringement is largely due to the behavior of the content providers themselves and secondly by unrealistic copyright laws. The content providers are probably losing a lot less revenue that they assume as the vast majority of people illegally downloading wouldn’t buy the low quality stuff the content owners think is valuable.

  5. It’s going to be a bit annoying for them to monitor the THOUSANDS of teenagers that download tv shows and movies every day.

    I’m just saying.

    • Here’s an idea, no internet access til 18. You need to be 18 to get a license or drink. It’s where they consider you to be socially responsible enough for that. Would be a good age to allow them into online games. Then you could play without whiney little “You suck ‘ or complaints to the mod that you must have an aimbot or some other hack coming through the headphones each time you killed them.

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