The announcement of Australia as one of the world’s worst offenders of piracy has sparked discussion of the nation’s next piracy policy which could leave Internet Service Providers (ISPs) liable and financially responsible for copyright infringement. In a bid to make ISPs take greater responsibility, the Australian Government has proposed legislation that has outraged ISPs.
It’s no secret that defeating piracy is an enormous job with significant costs and no one is jumping at the opportunity to pay for this. As the content delivery channel, ISPs should of course be expected to cooperate with processes and procedures however they should not be held responsible for managing the content creators’ infringements and do not have the tools to do this efficiently. Perhaps the better question for now lies not in who is responsible for preventing piracy but how policy makers, content creators and content distributors can work together to alter the way consumers access content online.
Over the past 12 months under the Australian Government’s ‘safe harbour’ scheme, internet service providers are said to be placed at elevated risk if they failed to implement a process responding to specific forms of notice that their customers were pushing to the side.
Many small ISP’s have been actively implementing systems to ensure they are taking action. Broadband Solutions for example has been keeping a close eye on piracy and implemented a policy and system to warn clients of the consequences of repeated copyright infringement including termination of accounts. As a smaller ISP in the Australian market however we have not received proper guidelines from the government nor an opportunity to share our views and concerns. Additionally, we have had to seek legal advice in order to prevent breaching the safe harbour scheme.
Other ISPs have taken the risk and not implanted a safe harbour policy. The iinet court case for example involved court action over internet piracy against an ISP without a safe harbor policy. Since the High Court landmark finding that iinet could not be help responsible for piracy, Hollywood’s enthusiasm for pursuing legal action against Australian ISPs has been put on hold.
Lately new policies are announced more regularly and without consultation which makes it more difficult for smaller telecommunications companies to provide competitive services to clients.
When analysing the logistics around preventing and punishing content piracy, the impracticality of the proposed policy becomes even more evident. One argument currently being thrown around is that, after initial set up, ISPs could reasonably manage piracy as they would simply need to identify offenders and click a button. This is ludicrous as the process is far more complex.
ISPs receive notifications that customers have downloaded content illegally on a particular date. The lack of a secure system or portal from where the emails have been sent however makes it difficult for ISPs to verify authenticity. Distinguishing illegal and legal traffic is not a simple process. The process of stopping all peer to peer traffic, including legal traffic, is clearly unrealistic.
No system currently exists to effectively manage this process. The oft-suggested internet filter has failed overseas and should only be implemented here in Australia with extensive consultation and far more planning.
The proposed legislative solution fails to acknowledge the complex nature of piracy and shifts the responsibility and financial strains onto businesses that merely deliver content rather than own it.
An explanation often used to justify the high level of piracy in Australia is the lack in availability of legal and affordable alternatives. Of course this is not the only factor propelling Australia’s high piracy levels however it is contributing platforms, restrictions and trends such as this that need to be considered when creating strategy to reduce piracy. The film and television industry for example needs to avoid delaying the release of content, provide consumers with competitive services and convenience as well as taking responsibility for managing infringements of the content they have created.
Before jumping to conclusions and placing sole responsibility and financial burdens on Australian ISPs perhaps the government and industry as a whole should come together to discuss the issue of piracy and develop a strategy that provides a long term solution to the problem.
The reality is piracy has been around for many years and Australia has not implemented a proper policy. Audiences are therefore reliant upon these illegal platforms. Without a successful mechanism for controlling this, more must be done to develop the tools needed or to adequately manage infringements and change the habits of consumers.
Last modified: March 18, 2015