This article is by Nigel Phair, director at the Centre for Internet Safety at the University of Canberra. It was first published on The Conversation and is re-published here with permission.
analysis Earlier this week, Kim Williams, CEO of News Limited, spoke at the Australian International Movie Convention on the Gold Coast and called for new copyright laws to better protect digital property rights.
Back in February, my colleague and friend Bruce Arnold opined a similar view, stating that in “the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question”.
Williams complained the NBN would make illegal file-sharing and downloads worse and called upon the NBN to be included in any future code and be obligated to take reasonable steps to stop piracy. Additionally, he requested ISPs to take stronger action against unlawful activity on their networks. But what can be done and are new laws really the solution? ISPs, as the focal point of the pipe which delivers content, certainly play a major role in many issues of online trust and safety.
In this instance we need to look at whether ISPs have either contributory or vicarious liability. This could be based on if an ISP knows or has reason to know of copyright infringement and induces, causes or materially contributes to the infringing conduct of another. But just as ISPs could do more to stop malicious software, so too they could contribute to and could assist in the reduction of copyright theft. Recent legal precedence is illuminating.
After three years of legal argument, the Roadshow v iiNet case ended with the High Court unanimously deciding iiNet never supported or encouraged unauthorised sharing or file downloading by its users. The Court held that an ISP “is not to be taken to have authorised primary infringement of a cinematograph film merely because it has provided facilities for making it available online to a user who is the primary infringer”.
Many content rights holders have lobbied for strategies to address online copyright infringement, including the implementation of a graduated response scheme designed to compel ISPs to forward notices and apply sanctions against users the rights holders allege are engaging in copyright infringement, for example, via peer-to-peer file sharing.
The ability for a rights holder to be able to send a copyright infringement notice to a relevant ISP for forwarding on to their subscriber is a good idea.
But in the iiNet case, the High Court determined “[i]t was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement”.
The next biggest players after ISPs are search engines. Search engines trawl content on the web and reproduce text, images and sound recordings. Copyright law raises a number of challenging legal issues for search engines as they do not own content, but instead organise, rank and display vast amounts of material that is posted on, or to websites. Other copyright issues for search engines include caching of copyright material, the extent to which fair use applies, authorisation liability and the impact of safe harbour provisions.
But what about other industries? The recent Finkelstein Report discussed charging for online content and found highly-differentiated online content would normally command a scarcity premium. “For such content, charging for access could work provided that the producer can retain control over the related property right. But it may not be an easy proposition given the current level of piracy and unauthorised use of content on the internet.”
Online media companies are also similar to search engines and generate revenue by selling advertising.
So what does the government think? Principle 8 of the Australian Government Convergence Review Interim Report states “Australians should have access to the broadest possible range of content across platforms, services and devices”. There is no mention though of copyright protection or the role of ISPs and search engines. And the NBN – well, that will transform the way we live and operate in the online environment – but we can hardly blame it for copyright infringement. NBN Co are an important stakeholder, but do not hold the answer.
Clearly, there is a problem. Williams raises some valid concerns. We need industry to collaborate with government to assist content rights holders to be able to enforce their copyright and change the behaviour of those who engage in online copyright infringement.
New laws are not the answer. Rather, we need to look at education, technical mechanisms, licensing solutions and responsibility of ISPs and search engines to find a workable balance between the right to own and creative content and the ability of users (and intermediaries) to access and reuse such content.
Nigel Phair does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations. This article was originally published at The Conversation. Read the original article.
When the NBN delivers 4-40 times the speed of current net options, how can you keep up? Someone downloading a movie will be able to do so in a matter of minutes, making it very difficult to do anything but capture that they connected peer to peer, which by itself isnt a crime.
Doesnt matter how many laws get put in place, the sheer speed of the NBN will counteract the intent of those laws very quickly.
Williams complained the NBN would make illegal file-sharing and downloads worse and called upon the NBN to be included in any future code and be obligated to take reasonable steps to stop piracy.
It would be nice to see how Williams proposed this be done in practically instead of simply throwing it out there as a political type statement.
And I’d like to see how he proposed to (since it would need to be done via deep packet inspection), avoid encountering things like say, military communication, medical data, personal information, etc, and having have that in turn go into the wrong hands. It seems a high price to pay to protect the entertainment industry.
The first thing that these commentators on copyright violation using the internet need to realise is that the NBN has no idea or any legal means to determine what is traveling down their fiber. The only people who are able to legally determine this is the individual RSPs. I am really starting to get fed up with this rubbish not being seriously challenged.
My opinion is that two things need to happen with copyright:
The first is that the whole concept needs to be re-examined to decide precisely what is trying to be achieved when copyright is granted and the copyright laws changed to reflect this. We should be looking at whether or not restrictive use practices by region locking and DRM etc. are an acceptable use of copyright.
The second thing that is needed is an honest and open attempt to provide easier access to copyright material that is designed to protect the producer of the copyright material and the final consumer. I hear a lot of noise from middle men such as AFACT and the IIA but neither of these seems to be representative of the producer or consumer and are only interested in maximising their own financial returns. The result seems to be inflated prices and price fixing to the detriment of the consumer.
One thing I am certain of is that in the current climate the groups making the most noise over copyright have little will to rethink their model for dealing with copyright which is what is needed.
“The first is that the whole concept needs to be re-examined to decide precisely what is trying to be achieved when copyright is granted and the copyright laws changed to reflect this.”
+1 for that. Copyright laws have moved from originally a way to protect creators from being ripped off for about 16 years, to ever more restrictive and longer lasting copyright that extends for decades beyond the death of the creator. This has been caused by copyright holders who didn’t create the original to secure a cash cow for their own benefit. There is now a severely limited freedom to exchange information, something that is essential for a developing society. There is even a move afoot to do away with public domain and creative commons altogether, so that everything with be permanently copyrighted.
Copyright law should be reconsidered to return to the original purpose, which wasn’t to throttle creativity and communication, nor to make rich corporations even richer for generations to come.
This will never happen unless it happens in America first, and it won’t happen there as long as it’s in the interest of big business to maintain the status quo.
“New laws are not the answer. ”
Indeed, the existing laws are effective enough
They just want to make the ISP’s the bad guys by being their private police force. They have under current law the right to go to a court and have a warrant issued for the ISP to hand over individual users details so they can proceed to prosecute them – yes, they’ve had this for decades already.
They want new laws, just to the make ISP’s be their police, judge and executioners, whilst they keep up the appearance oh having clean hands. Thankfully most people in this country have a higher IQ than the entertainment industries shoe sizes and see right through this.
” But just as ISPs could do more to stop malicious software, so too they could contribute to and could assist in the reduction of copyright theft”
Just as the entertainment industry could do a lot more in the reduction
– same time releases
– tv networks stop treating us with contempt and also show popular hit tv series same time as the U.S. and Europe, yeah 24 hours is acceptable, 2 to 4 months is NOT (is it any wonder why Australia has the highest TV piracy record in the world, but they wont accept the blame for this, rather blaming the users/viewers)
– fair and acceptable access methods and accordingly fair priced.
The music industry learnt a decade ago and is raking it in, bout time MPAA et al did the same.
But hey why should they change their 1980’s methods, or protect their own investments when they can cry foul and expect others to do it for them at no cost or effort to them.
Yes we do net new copyright laws.
Item one should be a codification of fair use provisions, which we are currently lacking. Followed by proscribed penalties for any content producer that deliberately puts up technical barriers to fair use.
While I dont disagree with your ideas (for the record, I agree the laws should be modified for current society), here’s a few bugs to get past.
Fair use… where? Hosted in the US/Singapore/England, where there are different laws, which laws have to be followed? What happens if USA says their laws, Australia says our laws? How do you enforce it if the hosting country says doing so is against THEIR law?
Technical barriers… define. What IS a technical barrier? Region locking? DRM? Customs duty? Legal barriers like age rating? Geo blocking of IP’s? Pay AND time barriers to content? Not providing content to 3rd party devices? Example: is apple putting up a technical barrier by not syncing non-apple devices to iTunes? By not doing so non apple devices cant access your iTunes library.
Extent… How far do you go? Music, movies, books, images, net traffic…
Point being, every solution suggested is going to bump into very tough to solve problems. Digital barriers isnt anything new, I’ve been dealing with it for 12 years now since GST came in, and the solution is further away than ever.
I can say with certainty that decisions from a decade ago are still an issue today.
I can’t disagree with anything so far said, in the above article or in the comments above.
Copyright probably needs to evolve, not necessarily be added to.
I agree with Phair in that a whole suite of measures probably needs to come in to play in order to make a dent in copying and sharing against creators wishes.
My bottom line is that I think creative people need some kind of possibility of having a career. Spending your own money to record an album, or taking a year to write a book, only to see both lose their value on release due to widespread sharing, is not going to promote a vibrant and diverse creative community.
And that’s ultimately bad for consumers.
It’s a shame the major players are at loggerheads all the time – Google, Hollywood, ISP’s, Music Industry.
I think we all need to work together.
And I’m 100% for better access, affordable prices, and establishing legal distribution networks that promote free content when creative people want to offer free content.
Creative people are consumers too.
There are tv shows screened in America I’d like to watch, but they aren’t broadcast here. There are 1980’s singles I’d like to buy on iTunes, but they aren’t even on iTunes!
‘My bottom line is that I think creative people need some kind of possibility of having a career. Spending your own money to record an album, or taking a year to write a book, only to see both lose their value on release due to widespread sharing, is not going to promote a vibrant and diverse creative community.
And that’s ultimately bad for consumers.’
I don’t argue against the right to try and make a career out of being an artist but I do disagree about widespread sharing killing a vibrant, diverse and creative community. There are many artists that are just happy to be creative and have others enjoy that. I think one of the biggest and most diverse creative community can be found on Youtube. While some channel owners do make a lot of money, many don’t and are happy to create films, art and music for everyone to enjoy. With high quality equipment for producing music and video becoming cheaper and cheaper, I can only see growth for the creative community, just not in its profitability for distributors who insist on forcing you to watch FBI warnings and putting protection measures in place to try and stop you form making digital copies to put on your tablet or what not.
My thoughts at least.
“Spending your own money to record an album, or taking a year to write a book, only to see both lose their value on release due to widespread sharing, is not going to promote a vibrant and diverse creative community.”
…
What a pile of bullshit. Great art is never motivated primarily by money — in fact, those who pursue great art for the purpose of getting rich always produce dross.
What promotes a vibrant and diverse creative community, throughout history, has always been the support of patrons of the arts such as (in older times) wealthy lords (see the artists always associated with monarchies), the wealthy church (see Michaelangelo) or wealthy governments (see Sweden’s patronage of the arts and the way that citizens in that country are able to receive a government subsidy to help them to become professional artists).
What most artists truly want is sufficient financial resources so that they can be left alone to pursue their art in freedom. They don’t care if they get rich. They only care that they can follow their artistic passion.
In fact, as anyone with that artistic passion will tell you, they don’t actually have a choice — they must follow it, wherever it leads — even if it leads to their own downfall.
I have to agree. Look at Hollywood.. MTV..
Sorry Renai, have to disagree, if people spend lots of money to create their art then they should be fairly compensated, and that the content industry holding back an effective distribution model is causing said people to have restrictions placed on their income.
I assume muso1 was talking about the content industry’s intentional lagging behind in their distribution model as the reason these artists are losing money? Right?
I think you completely missed his point..
“if people spend lots of money to create their art then they should be fairly compensated”
That’s not art, and we shouldn’t pretend it is. It’s a business. I expend a lot of time and effort running Delimiter, which involves creating content. But I never pretend it’s art. It’s not. It’s not even that idealistic. It’s primarily about making money to support my own life and that of my family, while having the ancillary benefits of also helping to hold powerful people to account, creating community and producing free information to help others in their lives.
It’s not art. Hollywood is not art. Most of what the music studios do is not art. Most of the TV industry is not art. It’s a content-generating business.
Art starts from a dark place inside oneself that manifests as a burning desire to create. You can’t tell me most commercial content starts that way, because it doesn’t.
I think our society often mistakes content for art.
Is The Wire art? Yes. Because it came from one writer’s burning dark place. Is the new season of Big Brother art? No. It’s about a TV channel trying to make money through selling ads through keeping people glued to a screen.
Is Radiohead art? Yes. Is Britney Spears? No. Britney Spears is about getting people to part with money for CDs and DVDs of boobs bouncing.
Before we can have this debate, we need to differentiate these different types of content creation.
ahh Renai, I was being sarcastic. That said..
Is The Wire art? Yes. Because it came from one writer’s burning dark place. Is the new season of Big Brother art? No. It’s about a TV channel trying to make money through selling ads through keeping people glued to a screen.
Is Radiohead art? Yes. Is Britney Spears? No. Britney Spears is about getting people to part with money for CDs and DVDs of boobs bouncing.
I fundamentally disagree with you, just because content is something you and I may not enjoy (ie. Big Brother, Britney Spears) it does not mean it’s not art.
And for reference although David Simon is the name behind The Wire, he openly claims writing credit for the show with Ed Burns, so it’s not “one writer”.
The fundamental difference between content and art lies in the intended audience.
An artist fundamentally creates works for themselves — they realise their vision.
Content is created for others to consume.
This difference also plays into their commercial models — an artist is satisfied solely by the act of creation — and they are often disinterested in who is consuming their art. Content is created for the consumption of others, and is therefore fundamentally associated with an entertainment factor, and a business model.
The difference matters.
Much of what we debate on these kinds of forums plays into this difference. We talk about businesses exploiting artists, or artists not getting their “fair” recompense. But often I feel people are talking about fundamentally dissimilar concepts. Content is not art, and art is not content. They are different things created for different reasons, which may look superficially similar. But this subtle difference is very profound.
You’ll often see artists exhorting consumers to pirate their work, for example, because they have enough of their own money and do not care if they get more — they just want artistic freedom, and if others enjoy their work along the way, great. On the other hand, you will never see a content owner exhort a consumer to pirate their work, because they are fundamentally concerned with a business model.
This dichotomy may seem a little complex. But I assure you that to someone like me, who produces both content for others’ consumption (journalism) and art motivated by my own internal passion (creative writing), the difference could not be more stark.
By that definition how then is Radiohead art and Britney Spears not?
And for reference although David Simon is the name behind The Wire, he openly claims writing credit for the show with Ed Burns, so it’s not “one writer”.
I don’t care what Simons says. He is the driving artistic force behind the show and that’s very apparent. Sure, the cinematography and some discrete writing may have been greatly influenced/created by others, but the whole thing is Simons’ baby. You’ll find this with any great TV series or film. Despite it being a group effort, it’s not a cohesive work of art unless there’s a single creator at the heart.
Ed Burns was a police detective turned writer who was the inspiration behind The Wire, he also added to ensure the authenticity of what was shown, a feature of the show that you no doubt will agree is a fundamental part of what made the show how great it was.
He also worked with Simon on the mini series The Corner in a similar type writing/authenticity type role.
As I said above, David Simon was the name behind The Wire, but without Ed Burns there wouldn’t have been a show to begin with let alone a show as great as The Wire was.
From Wikipedia about David Simon:
“Upon leaving college he worked as a police reporter at The Baltimore Sun from 1982 to 1995.[4] He spent most of his career covering the crime beat”
That’s where the inspiration behind The Wire came from.
If you’re going to quote wikipedia as a valid source of argument at least use The Wire’s page.
Simon has stated that he originally set out to create a police drama loosely based on the experiences of his writing partner Ed Burns, a former homicide detective. Burns, when working on protracted investigations of violent drug dealers using surveillance technology, had often been frustrated by the bureaucracy of the Baltimore police department; Simon saw similarities with his own ordeals as a police reporter for The Baltimore Sun.
*cough* Dilbert’s Blue Duck episode
’nuff said
“Williams complained the NBN would make illegal file-sharing and downloads worse and called upon the NBN to be included in any future code and be obligated to take reasonable steps to stop piracy.”
Correct me if I’m wrong, but wouldn’t it be extremely inefficient or next to impossible to put the onus on NBNCo? Wouldn’t it be like making a road worker responsible for speeding drivers?
NBNCo is only replacing the first two layers of the network, whereas any “reasonable steps” that are technically feasible would have to be taken at higher layers
And in relation to search engines enforcing copyright, wouldn’t that also be technically infeasible as the algorithms they use can’t really take into account copyright? While I can understand copyright holders’ frustration, proposing technically ridiculous solutions is definitely not the answer.
Correct, nothing can be done at the first two layers. ISP’s handle everything higher afaik, not NBN Co.
You know, this question surrounding file sharing i have pondered endlessly after being challenged by Coolio a decade ago in shanghai with A Wildman.
i have this only to say and not much time for another idea to solve the obvious dilemma of the transfer of wealth from the holders of creativity and those that hold the wealth related to it. “isn’t it ironic that the greatest of all marketers of music etc are the ones that steal it? If in all our wisdom we finally realise that the so called “thief” is our greatest asset in file sharing, we might just solve the problem? idea:”Dog’t” that’s what i say, tag it all with an inaudible, to the human ear, code and then reward rather than punish all those that share….you can work out the rest…EntreprenEars” you listening?… come ON!
You know, this question surrounding file sharing i have pondered endlessly after being challenged by a very funny night with (“drop” name here) Coolio a decade ago in shanghai with (meta tag name here :-)) A Wildman
i have this only to say and not much time for another idea to solve the obvious dilemma of the transfer of wealth from the holders of creativity and those that hold the wealth related to it. “isn’t it ironic that the greatest of all marketers of music etc are the ones that steal it? If in all our wisdom we finally realise that the so called “thief” is our greatest asset in promoting and selling music, we might just solve the problem? idea:”Dog’t” that’s what i say, tag it all with an inaudible, to the human ear, code and then reward rather than punish all those that share….you can work out the rest…EntreprenEars” you listening?… come ON!
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