news Federal Attorney-General George Brandis is reportedly set to introduce two proposals to Federal Cabinet that could see Australians who pirate content online receive warnings and Internet service providers forced to block file-sharing sites such as the Pirate Bay, in a move that comes without any public consultation on the issue.
In February this year, Brandis gave a major speech in which he re-opened the issue of Internet piracy. At the time, Brandis appeared to back a scheme proposed by a coalition of most of Australia’s major ISPs in November 2011 which would see the issue of online copyright infringement handled through Australians being issued with warning notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if the behaviour continued. iiNet has subsequently pulled out of the scheme.
However, Brandis subsequently upped the intensity of his discussion on the issue. In late February the Attorney-General threatened to introduce legislation to deal with the issue of Internet piracy in Australia unless the ISP and content industries can agree on a voluntary industry code to deal with the issue.
And several weeks ago other elements of the content industry intensified its public pressure on the issue, telling media and marketing site Mumbrella that all options for dealing with Internet piracy were on the table, from court orders to target pirating users, to ‘three strikes’ mechanisms and website blocks.
Brandis had been expected to open public consultation on the Internet piracy issue, following the ongoing debate the Attorney-General opened on the topic in February.
However, in an article published today, the Sydney Morning Herald reported that the Attorney-General appeared to have already made up his mind on the issue and would shortly table two concrete proposals to Federal Cabinet. There are reportedly two proposals: “One is internet service providers being required to issue warnings to people who repeatedly download illegally. The other is forcing ISPs to block file-sharing websites such as Pirate Bay.”
The news comes as last month it was revealed that a key lobbyist for the anti-piracy group originally known as the Australian Federation Against Copyright Theft enjoys a congenial email relationship with Roger Wilkins, the secretary of the Attorney-General’s Department and other senior officials, with the lobbyist regularly using the channel to pass on anti-piracy propaganda.
The Attorney-General’s Department has previously hosted talks in 2011 and 2012 between the ISP and content industries about the issue of online copyright infringement, with the stimulus for the talks appearing to come from the department itself in the form of Wilkins, and not the Australian Labor Party, which was in power at the time. However, despite the fact that the ISP industry proposed a voluntary industry code to deal with the issue, the talks eventually collapsed, with major ISP iiNet stating that discussing the issue with the content industry was like “talking to a brick wall”.
The 2011 and 2012 talks explicitly blocked consumer representatives from attending the talks. A number of journalists and digital rights groups fought a furious and protracted Freedom of Information battle with the department just to get the most basic information about the meetings, which were held behind closed doors and involved the largest companies in the ISP and content industries. It is still not clear what was discussed, as the department believes disclosure of the agenda to be contrary to the public interest.
After nine months, the department eventually did invite at least one dedicated consumer representative to the talks — the Australian Communications and Consumer Action Network, which the Government directly funds. But at least one of its representatives was quickly forced to step out, due to a conflict of interest which saw them also representing rights holders.
The news comes as consumer group CHOICE has recently severely criticised Brandis for his comments re-opening the Internet piracy debate, and particularly his mention of a “graduated response” scheme, which could see users hit with a series of warnings before facing penalties for copyright infringement.
“Three strike schemes have proven to be ineffective and costly in other countries. They have also undermined the rights of consumers to due process,” said CHOICE CEO Alan Kirkland in a statement. “If implemented in Australia, these measures would push up the price of internet access without any impact on piracy.”
“Nobody supports internet piracy but punishing consumers is not the answer. The best way to stop piracy is to make it easier for Australians to pay for content like movies and television series at internationally competitive prices. The main driver of piracy is frustration, as Australians look overseas for flexible, affordable and timely content. Piracy in Australia is driven by a market failure, plain and simple. The Government should be embracing the internet as a source of innovation and development, not restricting it.”
In addition, the news also comes as content distributors such as Foxtel have recently made it significantly more difficult for Australians to access premium content without potentially infringing copyright. In early February, for instance, Foxtel signed a deal with US cable TV giant HBO which will block the popular Game of Thrones show from airing through any other medium than Foxtel — at all — apart from DVD release. The news resulted in record local piracy rates of the latest season of the show.
My opinions on this issue are very clear: Ordinary Australians must be allowed to have their say on how Internet piracy should be handled; and secondly, the answer to piracy should be a commercial one, not a regulatory one. As I wrote for the ABC in February:
“Once again, the Federal Government has decided that something absolutely must be done about the pesky issue of internet piracy of popular TV shows and movies. And once again, it looks like the people most affected by any action on the issue – Australian consumers – are being completely locked out of the conversation.
There is no doubt that the Australian public does have views about internet piracy, and on both sides of the debate. A poll by Essential Media this week found 38 percent of the population, predominantly Coalition voters, supported government action on the issue, while 42 per cent, predominantly Labor and Greens voters, opposed it.
But we’ll never know quite what those views are, especially the nuanced details, unless the Federal Government starts discussing the issue openly and involves consumers and their representatives in these kinds of talks. Massive corporations and government bureaucrats should not be able to decide the future of Australians’ access to content without the ordinary punter having their say too. The only way to characterise that situation would be “undemocratic”.”
And as I wrote in an article about Foxtel’s Game of Thrones lockup in April:
“If Game of Thrones has one central lesson, it’s that change never stops and history cannot go backwards. Today’s King in the North may very well likely be tomorrow’s dogfood, if he plays his cards wrong, and nobody can put his head back on his shoulders once it’s been lopped off like a bit of cheap lumber. Internet piracy is not new: It’s been going on now for several decades. The only way to address it, as Steve Jobs conclusively proved during the days of Napster and Kazaa, is to offer a better service.”