The government’s proposal to force Australian internet service providers to send warning notices for copyright infringement is likely to deter fewer than one in five people from downloading pirated music, films or TV shows, according to a survey commissioned by the government.

Along with the legislation passed in May allowing film and TV companies to drag ISPs to court to force them to block websites like The Pirate Bay, Attorney-General George Brandis and Communications Minister Malcolm Turnbull also asked the ISPs to work with the rights holders to develop a “voluntary” code to send out warning letters to people caught sharing files over peer-to-peer services.

Under the proposed scheme, after three warning letters have been sent to a customer, rights holders can apply to get that customer’s details to take them to court, as happened in the Dallas Buyers Club case. The Rudd and Gillard governments tried to implement a three-strikes copyright scheme for years, but the proposal went nowhere because neither copyright holders nor ISPs would agree to pay for it.

But the Abbott government has adopted “carrot or stick” approach, emphasis on the stick. Either an industry code gets done, or the government legislates.

The thought is, though research has yet to prove it, that once people are made to feel like they’re in trouble for downloading TV shows or films over peer-to-peer services, they’ll stop doing it.

But that doesn’t appear to be the case. According to research released by the government itself on Wednesday, a survey of over 2000 people found that just 21% of Australians who admitted to downloading copyrighted TV shows, films, music, software or games said they would be encouraged to stop if they received a letter saying their account would be suspended.

It is worth noting that the government has ruled out suspending user accounts on multiple occasions, so its inclusion in this survey is odd.

That figure drops to just 17% when people were asked about getting a letter saying their account had been used to download TV shows, music or films, or a letter threatening to throttle their download speed.

Throttling is also not on the cards, for now.

The overwhelming reasons people would stop pirating, according to the survey, would be if the cost of legal content were reduced (39% of infringers) and if legal content were more available (38%) or available as soon as it was released elsewhere (36%).

This is what consumer groups, the ISPs, and even the Communications Minister himself have said from the start.

Overall the survey found 26% of people over the age of 12 admitted to downloading “illegal” content in the first three months of 2015, and 7% said they “exclusively” consumed content in this way. In contrast to the claims that most pirates just want things for free, almost two-thirds of those who did download copyright-infringing content also paid for other content.

The report itself at times seems confused as to how people actually obtain the “illegal” content. It broke up the method of obtaining the content into using “BitTorrent software” at 26%, uTorrent at 28% and Pirate Bay at 19%.

Typically a user would visit The Pirate Bay to download a torrent file to open in uTorrent to get the content using the BitTorrent protocol, so why these were counted as three separate categories is unclear.

The survey at one point also contradicted Turnbull’s previous reassurance that the use of services such as virtual private networks (VPNs) to bypass Netflix’s geoblock was not illegal.

“The survey did not capture whether respondents had legally used Netflix’s Australian service or had illegal [sic] used a foreign Netflix service,” the report stated.

After journalists at Mashable pointed this out to the department yesterday, an update was issued to remove the words “legally” and “illegal”.

A spokesperson for the department said private company TNS had been paid $130,680 to conduct the survey, and drafts of the report had been read by the department before the final copy was issued to Turnbull’s office prior to its public release.

Neither the department nor Turnbull’s office caught the error before yesterday.

The results of the survey paint the picture that the code is unlikely to be a deterrent while content isn’t available in a timely and affordable manner. This is something Turnbull appears to have picked up on.

“Rights holders’ most powerful tool to combat online copyright infringement is making content accessible, timely and affordable to consumers,” he said in a statement accompanying the release of the report.

The government isn’t forcing rights holders to do anything about it, though. There is nothing in the code that would allow a user to, for example, be exempt from punishment for downloading a TV show because it wasn’t available in Australia, or for downloading a film that hadn’t yet been released in Australia.

The government is still pushing its code, despite the fact that the same divide over who pays for it still remains between the internet service providers and rights holders.

The code was lodged with the Australian Communications and Media Authority in April, minus one key provision: who pays. CEO of the telco representative group John Stanton indicated on Wednesday that negotiations since April had failed to reach an agreement and now an independent expert had been brought in to work out what costs ISPs would face to be the copyright cops on behalf of the TV, film, and music industries.

“The widespread pattern of online infringement in Australia, indicated by the research, underlines the fact that rights holders — as indicated by the government — should be ready to pay the majority of the costs of operating a copyright notice scheme, given the enormous financial upside that will flow to rights holders from changing the behaviour of online infringers,” Stanton said.

Peter Fray

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