Stop the pirates? Behind Brandis’ copyright crusade



This article is by Angela Daly, Research Fellow in Media and Communications Law at Swinburne University of Technology. It originally appeared on The Conversation.

analysis Copyright has been firmly back on the agenda in recent months. We’ve seen the Australian Law Reform Commission (ALRC) release its report on copyright which recommended that Australia adopt a “fair use” exception to copyright infringement. Yet we’ve also seen the Attorney General, George Brandis, get more exercised about copyright piracy this month, and pledge to do something to address it:

Australia already has a robust legal framework for the protection of copyright, but despite an extensive menu of criminal offences and civil wrongs applicable under copyright law, still the problems of piracy and unauthorised continue to rear their heads.

I and other observers of the debate on copyright reform believe Brandis’ comments regarding copyright piracy have been somewhat mysterious. Questions of piracy were outside the ALRC’s terms of reference for its copyright report, and there has not been any other impartial evidence to suggest that copyright piracy is rampant in Australia and is a priority for law reform along the lines Brandis is suggesting.

The approach Brandis is following to deal with copyright piracy so far seems to involve encouraging internet service providers (ISPs) Telstra, Optus and iiNet to negotiate with the “content industry” such as large corporate copyright holders from music, film and publishing.

The aim is to produce a voluntary industry code to address any customers of the ISPs illegally downloading and sharing copyrighted content. This code could include ISPs sending out warning notices to their customers for alleged illegal activity and possibly blocking websites that host infringing material.

Interestingly enough, in the wake of the 2011 decision in the iiNet case, ISPs and large content providers already engaged in similar talks, which eventually broke down so nothing came of them in the end.

Tellingly, important research by Monash law academic Rebecca Giblin of similar anti-piracy schemes elsewhere in the world actually suggest that they have not been particularly effective in achieving their aims of reducing illegal downloading and encouraging legal access to content. So why is Brandis embarking on this copyright crusade? One answer to this question might lie in the content industries having close channels of communication with the Attorney General’s Department.

Emails from the Australian Screen Association (the main film industry lobby group in Australia) to the department obtained via a Freedom of Information request show the persistence of this group in providing information to the Attorney General regarding copyright piracy.

Furthermore, other content industry representatives have also been vocal in the press regarding Australians’ piracy, with Village Roadshow co-executive chairman Graham Burke even going as far as to say that “Australia is probably the worst country in the world for pirating movies”.

But rigorous impartial evidence is very much lacking from this debate as to the extent to which Australians are “pirating” content and whether this is indeed having the debilitating effect on creation and innovation in Australian society that seems to be implied by the entertainment industry.

Research from the Australian Home Entertainment Distributors Association, while also an industry body, paints a different picture. They suggest that the market for digital film and television sales in Australia is actually growing, and Australians are “among the most avid consumers of legal content”.

Nevertheless, the head of the Association also laments the lost sales due to piracy. Perhaps though a better option to recoup those lost sales, rather than campaigning for new laws that may be totally ineffective like their predecessors in other countries, would be to heed some of the conclusions of last year’s Parliamentary IT Pricing Review.

This report found that Australians were paying sometimes a huge amount more than their counterparts in the US and the UK for the same copyrighted content and software goods, known as the “Australia tax”. This premium was not justified by higher costs of doing business here.

Aside from paying over the odds for these products, Australians are also often subject to later release dates for films and TV series compared to elsewhere in the world, for no obvious reason.

Surely, if there really is a problem with piracy in Australia, one way to solve it would be to address these two issues first (the higher prices Australians pay for content and the delay in releasing films and TV series here) by providing Australians with legal and convenient ways to view content at reasonable prices.

Otherwise, the lack of hard, unbiased research driving this debate on piracy, as well as the privileged access to the Attorney General that entertainment industry lobbyists seem to have, does not bode well for robust, evidence-based policy being adopted in the near future.

Angela Daly 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 on The Conversation. Read the original article. Image credit: CeBIT, Creative Commons

The Conversation


  1. People download because after trying to buy content from say Netflix or HBO they are blocked because some TV channel in Australia has decided to sit on the show. We can hide our VPN and pay that way but often hit problems with credit card being non American. I am prepared to buy programs but at the moment I can’t. Brand is would be better off getting those market restriction lifted. Like newspapers and cable TV free to air is going down the tubes.

  2. So, hypothetically, if I don’t want to pay out the expense of getting Foxtel just to get Game of Thrones and pirate it instead, and then when it comes out buy the Bluray set of the series, that’s classified as a lost sale? Got it.

    • These fucking loonies in holywood would still classify that as a lost sale. You were supposed to pay twice. /s

  3. The bottom line is the major rights holders want to turn ISPs into collections agencies. All material on the internet is copyright by *someone*. Hollywood argues that they own 20% of the world’s content, so they should be able to claim copyright royalties on 20% of internet traffic, regardless of what it actually is. While it would be very nice if everyone who reads these incredibly valuable words had a small piece of their monthly ISP bill transfered to *my* bank account, somehow I don;t think that’s what the people lobbying Brandis have in mind.

    What we need is a reasonable “fair use” provision in our Copyright Laws, and we also need a national collections agency that allows users unbundled access to copyright content for not more than the going *international* market rate. So we can buy Game of Thrones for no more (per user) than the overseas TV networks do, without having to also buy 26000 hours worth of monster truck races and synchronised swimming coverage.

    I don’t know who’s interest Brandis’ think’s he’s acting in, but it’s certainly not the Australian public’s.

  4. Brandis MUST have watched VHS recordings during the 80s & 90s of TV broadcasts. It may have been sporting events, movies, or even operas on the ABC. Everything he watched during the 80s & 90s that was recorded from a TV broadcast was copyright infringement.

    So, Brandis, you´re a ¨Pirate¨ too.

    Be sure and pass this on to Brandis, won´t you guest/Gane.

  5. There is one thing content needs to be provided here in a Fair reasonable and Nondiscriminatory manner once this is the case and ONLY once this is the case can content providers enter into negotiations with ISP’s!

  6. Could you just imagine if this idiot is successful, all those illegal downloaders will switch to VPN’s, the increased internet traffic will cripple back haul links and Abbot/Turnball will be exposed to a whole new raft of abuse from ligitimate internet users. The only winners will be the ISP’s that offer unlimited downloads and free uploads.
    Best leave it be.

  7. The solution is not rocket science.

    Give Foxtel the kick in the arse they deserve, roll back their power then piracy will drop. Until that time, you know where the door is.

  8. Brandis ,Is laying the legal groundwork for Mudochs sole control of our ABC ,We heard so much from Abbott about the faceless men ,controlling Labor . Abbotts faceless men are being exposed now ,They start an enquirey accusing union & Labor government corruption ,Enquiurey turns around on them . I,m enthralled by it !! Slipper was a sacrificial lamb ! Abbott ,Pyne & A betz are up to their balls in that conspiracy !! They are so corrupt & arrogant ,They have to be removed !!!

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