Greens spokesperson for Communications
Senator for WA Scott Ludlam
The Australian ISP and content industries have continuously failed to successfully negotiate a shared approach to copyright infringement over a period of at least three years, due in large part to the unwillingness of copyright holders to be flexible in their position.
In this context, the Government’s requirement that a joint code be developed within 120 days is farcical. This is not enough time to develop a code.
The Government has not specifically allocated a role for public interest organisations to have a place at the negotiating table. Yet users will be the ones most affected by this new code.
If a voluntary code is not developed, it is not yet clear that the Attorney-General and Communications Minister are actually able to enforce a mandatory code on the ISP industry under the Copyright or Telecommunications Act, as they claim in their letter to industry today. Any such terms would be subject, as we saw in the iiNet High Court case, to legal challenge.
The Greens will not support amendments to the Copyright Act to allow rights holders to apply for a court order requiring ISPs to block access to a website. Such a move would be a defacto Internet filter and would allow rights holders to unilaterally require websites to be blocked.
This kind of Internet filter would not be effective at all, due to the widespread availability of basic VPN software to evade it.
The requirement that an industry code contain an avenue for rights holders to request identifying information from ISPs (“facilitated discovery”) about alleged pirates has not been tested yet legally in Australia and could lead to masses of individual consumers being sued for tens or thousands of dollars for downloading a single album or film, as we’ve seen in the US.
The Government’s claim that the existence of a code will be central to determining whether an ISP has authorised copyright infringement pre-empts legal judgements and may run afoul of the iiNet High Court judgement.
Any industry code will be easily evaded by copyright infringers and will not address the real issue: The lack of timely, affordable availability of content in Australia, which other markets such as the US already enjoy
The planned entry of Netflix into Australia next year and the development of other online platforms such as HBO’s planned offering indicate that the market is working to resolve the copyright infringement problem anyway. The Government’s industry code is unnecessary extra regulation and a burden on industry.