A week ago Attorney-General George Brandis rose at an Australian Digital Alliance forum to discuss copyright reform in the wake of the release of the Australian Law Reform Commission’s copyright review. He began by quoting Thomas Macaulay speaking in the House of Commons on copyright in 1841. “It was, I believe, the first occasion that copyright law had been debated by the House of Commons,” the Attorney-General said.
Whatever his merits as a lawyer, Brandis is a dud historian. Copyright was often debated in the House of Commons long before 1841, most notably for the Copyright Act of 1709. In fact, the history of English governments trying to regulate what would eventually be termed copyright goes back to the 16th century, when an industry group called the Stationers’ Company convinced the murderous regime of Queen Mary to let it have a monopoly on printing books, in order to better enable the Crown to stifle Protestant dissent.
That system of censorship enabled the Stationers to block competition for its members from the middle of the 16th century to the end of the 17th. And when their monopoly came under threat, the Stationers argued in a submission to Parliament that unfettered printing was a “dangerous innovation”, like a “field overpestered with too much stock”, and that the “public good of the state” was linked to the “private prosperity of the Stationers’ Company”; what England needed was not printing but “well-ordered printing”.
Sound familiar? Perhaps the reason Brandis rewrote copyright legal history is because it shows that content and copyright regulation has always been linked to political censorship and anti-competitive practices. Nothing has changed in 450 years. Content producers still advocate anti-competitive practices and censorship in submissions to governments aimed at protecting their revenue.
In discussing the ALRC report, Brandis dismissed its most important recommendation about the adoption of a “fair use” exception in Australia, which is opposed by the copyright industry. “I remain to be persuaded,” Brandis said of the ALRC recommendation, but generously allowed that he would “bring an open and inquiring mind to the debate”.
However it wasn’t fair use or the rest of the report that Brandis especially wanted to discuss, but piracy, a topic barely mentioned by the ALRC. Piracy was theft, Brandis insisted, but to get us enthused by this rather standard copyright industry message, he went patriotic. “The illegal downloading of Australian films online is a form of theft,” he said, citing The Great Gatsby, as though a US film with US stars based on one of the great American novels counted as Australian.
Brandis explained that he disliked the High Court’s iiNet decision from 2012, and was looking at:
“… considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks. This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”
Alternatively, Brandis is considering providing “the Federal Court with explicit powers to provide for third-party injunctions against ISPs, which will ultimately require ISPs to ‘take down’ websites hosting infringing content”.
“It is very possible that it regards the internet … as a threat to be attacked with whatever tools are available.”
Putting aside that (a) there is considerable evidence “piracy” doesn’t cost the copyright cartel revenue e.g. here; (b) graduated warnings haven’t worked anywhere; and (c) many censorship measures would be trivially easy to bypass, the copyright industry has long sought to outsource the burden of stopping file sharing from companies to governments, courts and ISPs, so that taxpayers and consumers end up paying the cost of doing for the content industry what less influential industries have to pay for themselves: protecting their assets.
All along, of course, the key to massively reducing piracy — providing content where, how and when consumers want it, at a reasonable price, rather than gouging and exploiting them — has rested with the copyright cartel.
Not coincidentally, 21st Century Fox, the healthy and successful arm of Rupert Murdoch’s empire (as opposed to the dead newspaper company walking, News Corp), is a strong supporter of government moves to crack down on piracy.
Turning ISPs into an enforcement arm of the copyright cartel will not only cost ISPs a great deal — something Brandis acknowledged as an issue — but requires them to monitor every customer’s internet usage for downloading of copyrighted content or use of file sharing networks, as well as censor websites targeted by the copyright industry. Perhaps the IT Keystone Cops from the Australian Securities and Investments Commission can help with that.
While Brandis prepares the way for a de facto internet surveillance and censorship regime, Communications Minister Malcolm Turnbull’s parliamentary secretary, Paul Fletcher, has been “consulting” on the government’s other internet censorship proposal, under which a “children’s e-safety commissioner” would have a legislated power to demand social media and other internet companies take down content deemed offensive. The plan is initially intended at material aimed at harming children, but when last in government the Coalition also prohibited online gambling and banned online discussion of euthanasia.
During the week the government used The Australian (which is itself engaged in a permanent “old man yells at cloud” campaign against social media) to bolster its case, under the heroic headline “Tony Abbott stands up to cyber giants on bullying“.
This all coincides with an increasingly aggressive stand by the government against scrutiny. The ABC has been repeatedly attacked for stories that embarrass the government; a number of politicians from the Prime Minister down have, without evidence, smeared whistleblower Edward Snowden as a traitor who has placed Australian lives in danger; Brandis dispatched the Australian Security Intelligence Organisation to raid a whistleblower and a lawyer after revelations Australian intelligence services had bugged the East Timorese cabinet. The more paranoid among us might even add in Australian Federal Police raid on the Seven Network this week.
Together, these all form part of what looks increasingly like a concerted attack on the internet from a government closely allied with corporate interests whose analog-era business models have been undermined by the internet, like Rupert Murdoch, and composed almost entirely of men with minimal understanding of how Australians use the internet to connect with each other, form communities and share information. Indeed, this is a government that has persistently shown itself to be hostile to the very concept of sharing information.
It is very possible that it regards the internet, which is fundamentally about more rapid, easier and resilient information-sharing, as a threat to be attacked with whatever tools are available.