Crackdown on online piracy foreshadowed

14 February, 2014 by Don Groves

Internet Service Providers would be required to issue warnings to subscribers who are suspected of illegally downloading copyright material in a measure being considered by the federal government.

Australian distributors have long been urging the government to introduce the “notice-on-notice” scheme which operates successfully in the US, the UK, France and other parts of Europe.


“The government will be 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,” Attorney General Senator George Brandis said today.

“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. “

Addressing a copyright reform forum staged by the Australian Digital Alliance in Canberra, Brandis said, “This is a complex reform proposal, and how it is paid for is one of the principal unresolved issues. The government will not be seeking to burden ISPs beyond what is reasonably necessary to comply with appropriate domestic and international obligations.

“This would not put Australian ISPs at a disadvantage by comparison with their counterparts internationally as many overseas jurisdictions have the concept of authorisation liability, secondary liability or similar, which are intended to capture ISPs.”

He cited The Great Gatsby as an example of a film that would be pirated, “placing the sustainability of our screen industry at risk.”

Brandis also referred to distributors’ calls to provide the Federal Court with explicit powers to require ISPs to take down websites hosting infringing content, but did not express an opinion.

He did say, “In framing any enforcement reforms, my preference would be to facilitate industry self-regulation, as opposed to active and continuing government regulation."

Australian Home Entertainment Distributors Association CEO Simon Bush has said site-blocking has reduced piracy in the UK, US and parts of Europe. Bush noted that in countries with notice-on-notice regimes, “the vast majority of people change their behaviour after getting the first or second notice, particularly as more legitimate services are available.”

In his speech Brandis re-iterated his reservations about the Australian Law Reform Commission’s proposal to adopt the US Fair Use exception to copyright law.  “I remain to be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate,” he said.

He listed the plan to modernise and reform the Copyright Act as one of the achievements the Abbott government is striving for in its first term.

The screen industry has welcomed Brandis' statements. "The Attorney General’s commitment to creators is 'music to our ears,'” said Jacqueline Elaine, Executive Director of the Australian Writers’ Guild. “However, as we repeatedly stressed in our submissions to this enquiry, and which were adopted in the final ALRC terms of reference, the government must avoid the assumption that provisions which protect the exploiters of copyright ipso facto protect the rights of original creators.

"This is especially so in sectors such as ours, that require the wholesale transfer of copyright prior to even the very creation of the work; at a point where writers are unable to properly determine or negotiate a fair market value for the ongoing exploitation and future success of their original creation."