The government will rely on flawed copyright industry claims and free trade agreements to justify proposals to overturn the High Court’s iiNet decision and develop a new internet censorship regime for internet service providers, a draft discussion paper reveals.

The Online Copyright Infringement draft, obtained by Crikey and to be circulated by Attorney-General George Brandis and Communications Minister Malcolm Turnbull, calls for public comment on new measures that would enable the copyright industry to demand that ISPs censor the internet and to remove the legislative hurdles that prevented the copyright industry from successfully suing major ISP iiNet in 2012. The paper seeks comment on amending the Copyright Act to:

  • loosen the “reasonable steps” requirement that protected iiNet from litigation by the copyright industry, so that ISPs can more easily be sued for having “authorised an infringement” of the act;
  • enable the copyright industry to obtain court orders forcing ISPs to censor foreign internet sites the “dominant purpose of which is to infringe copyright”; and
  • extend “safe harbour” provisions of the act to some service providers currently definitionally prevented from accessing them.

The draft also seeks comment on “ongoing monitoring and evaluation” measures for quantifying the volume and impact of copyright infringement. This raises the possibility of measures to monitor internet users’ traffic, but importantly the draft doesn’t discuss the “graduated response” schemes favoured by the copyright industry, under which ISPs would be required to enforce copyright rules and eventually cut off customers found to be file sharing or downloading copyright material. Such schemes have significant privacy implications and are likely to impose tens of millions of dollars in costs on ISPs — costs that would need to be passed through as a kind of copyright tax on internet users (which would be in addition to the “surveillance tax” costs of a data retention scheme of the kind currently under “active” consideration by the government). The draft invites comment on the “regulatory costs and savings” associated with proposals outlined.

The draft argues that the measures outlined are required by the United States, Singapore and South Korea Free Trade Agreements, but it also relies on demonstrably false copyright industry claims about the size of the industry, and even invokes child harm as a possible consequence of file sharing.

“… Australia’s copyright industries employ 900,000 people and generate economic value of more than $90 billion, including $7 billion in exports. Digitisation means that these industries are particularly susceptible to harm from online copyright infringement with the potential to directly impact on the Australian economy and Australian jobs. Online copyright infringement can hurt consumers as well. Consumers accessing material unlawfully are not covered by consumer protection laws and may be exposing themselves to the risk of fraud and other forms of cybercrime. Further, children may be exposed to material that is not age appropriate.”

The draft paper cites a consultant’s report commissioned by the copyright industry lobby group Australian Copyright Council. On closer inspection, the report appears highly problematic. It claims the industry generates more economic value added than construction or retailing, and at 900,000 the industry would employ as many Australians as manufacturing. However, those prodigious levels are reached only by the inclusion of industries such as textiles, clothing and footwear, furniture, household goods, electronic equipment manufacturing, paper, advertising agencies and even, as “non-dedicated support”, retailing and transport.

However, even more peculiar is the argument that copyright infringement is dangerous because Australians “are not covered by consumer protection laws”, when two of the chief motivations for Australians to download content is the refusal of providers to allow access to content at all — whether with “protection” or not — and their insistence on providing it in timeframes, in formats and at prices consumers don’t want. The spectre of kids being harmed is, of course, a staple of internet scare campaigns.

The reform proposals would open the way to the copyright industry using Australian courts to shut down not merely piracy sites but any site they could convince judges had a dominant purpose of copyright infringement.

These could include file hosting services — Kim Dotcom’s Megaupload service was shut down by the FBI after pressure from the US copyright cartel on the basis that it was a copyright infringement site, leaving thousands of users who used the site for personal and business data storage without their data. Indeed, this approach has a history elsewhere in the world of leading to ISPs being forced to block legitimate sites like Google Docs as part of sweeping court orders obtained by copyright multinationals.

However, the government is also moving to strengthen existing protections against copyright claims by fixing a problem for institutions like universities, and online search engines, which currently fall outside the definitions of entities able to take advantage of the safe harbour protections of the Copyright Act.

Peter Fray

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