Copyright Amendment (Online Infringement) Bill 2015

Piracy is a breach of copyright.

It’s the unauthorised copying, distribution, or use of copyright material.

And Australians do it more than almost anyone in the world.

Game of Thrones is the most pirated television show in history and last year Australian’s illegally downloaded it more than any other country in the world.

According to data gathered by file-sharing site monitor TorrentFreak, in 2014, we accounted for 11.6 per cent of illegal downloads of Game of Thrones.

In 2013 we also topped the list for pirating the Breaking Bad finale. 18 per cent of illegal downloads of that show were right here in Australia. 

Why? Why is this happening? There are lots of reasons. But the main reason is if Australians can’t get access to the content that they want to watch or listen to and they can’t get access to it cheaply and quickly – they will find another way – either by using a VPN to access overseas content, or peer to peer file sharing or accessing overseas websites like Pirate Bay.    

This bill establishes a legal process to block access to websites like this.

Under this legislation copyright owners will be able to apply to the Federal Court requiring Internet Service Providers (ISPs) to block access to overseas websites, like Pirate Bay, which have the primary purpose of infringing copyright, or facilitating the infringement of copyright.

 

This is not new or unique – 39 countries around the world have legislation that is similar to this.

 

The Bill has been the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs.

It received 49 submissions.

Most of the submissions are broadly supportive of the Bill. But some do raise concerns about its reach. As well as the costs associated with it and its effectiveness.

In relation to reach, there are concerns that were raised in submissions and are reflected in the Committee’s report about whether VPNs might be caught up by this scheme. The Minister has raised the same concerns himself. I am glad that the Committee recommended changes to the Explanatory Memorandum to clarify the status of VPNs. But they don’t appear in the amendments to the Explanatory Memorandum that the Government has circulated in relation to this bill. So I ask the Government to make a change to the Explanatory Memorandum to ensure this occurs and to ensure that the Explanatory Memorandum is amended to reflect the concerns raised by the Committee.

ISP’s have also raised concerns about costs and indemnity issues.

Once again, the Committee has also recommended changes here to the Explanatory Memorandum and once again I don’t think the Government’s changes to the Explanatory Memorandum sufficiently address the concerns of ISPs or the Committee.

I also don’t think they reflect the position set out in the Government’s own discussion paper that said “rights holders would be required to meet any reasonable costs.”

And so I ask the Minister to have another look at this.

The amendments that the Government has circulated also do not include the two year review of this legislation that the Committee recommended. When the Minister speaks in reply later on in this debate I ask him to make a commitment to do this as well.

Piracy is illegal. If this legislation helps to reduce piracy that’s a good thing. But there is still good reason to be skeptical about how effective it might be.

There is lots of evidence that site blocking legislation can have an impact but is often temporary. Sites that have been blocked often disappear for a while and reappear down the track under a different domain name or web address. 

The Minister for Communications has made this point himself. On 10 December 2014 he said:

“If you are asking me is it possible for, say Pirate Bay to then move to another IP address or another URL for that matter, of course that is true.”

We have seen evidence overseas that that is what happens from time to time.

Last month in Sweden, Pirate Bay’s official domain name was seized by the court. But as The Independent Newspaper reported on 19 May this year the people behind Pirate Bay have already said “that it is likely to be able to get the site back up and running at an alternative address”.

What this shows is to be effective in combat piracy you have to do a lot more than just pass laws like this.

And a lot of the responsibility for that rests with industry.

A survey conducted by iView for Choice last year found that 50 per cent of people downloading illegal content said that their main reason for pirating was price and 41 per cent said it was because they wanted specific content sooner than available in Australia.

The take up of services like Spotify and Netflix demonstrate that when people can get access to content cheaply and easily they take it up.

Last year research conducted by Spotify said there was a 20 per cent decline in music piracy over a 12-month period.

Netflix has had a similar impact.

In April Netflix’s chief content officer Ted Sarandos said:

“The real great news is, in the piracy capitals of the world, Netflix is winning. We’re pushing down piracy in those markets by getting the access.”

Netflix is expected to sign up a million Australian customers by the end of the year. About six million Australians have used Spotify.

The take up of these services like – Netflix, Stan, Presto, Spotify, Pandora, iTunes shows Australians want content – and they are prepared to pay for it, if it’s cheap, quick and easy to get.

All of these are great examples of industry responding to the needs and demands of modern day consumers, but there is still a lot more to do.

Young and Old

On that point, it is a mistake to assume that it’s just teenagers illegally downloading shows like Game of Thrones or Breaking Bad. People of all ages do it.

Research commissioned by the Australian Performing Rights Association, in 2013 found that 44 per cent of people aged 18-30 engage in piracy, 25 per cent of people aged 30-49 do it. And so do 11 per cent of Australians aged 50-69.

Interestingly the research also indicates that the higher your income the more likely you are to illegally download TV shows, movies and music.

According to the APRA research, a household earning less than $40,000 a year is less likely to engage in illegal downloading than a household earning more than $100,000 a year.

Graduated response

In his second reading speech the Minister for Communications also mentioned an education notice scheme being developed by ISPs and copyright holders that will warn people who have allegedly pirated copyright material and give them information about legitimate alternatives.

This has now been developed into a Code of Practice and is currently being considered by ACMA.

The good news is it does not look as bad as some people feared it would. The Government Discussion Paper released in July last year canvassed the US Copyright Alert System which involved ISPs slowing down the internet speed of their customers or cutting off their access to the internet altogether.

A similar system operates in South Korea. 

There have been people in this Government and in industry that have been keen for Australia to adopt this approach. I am glad we are not.

The bad news is it is still unclear who will pay for the cost of operating this scheme? How much rights holders will pay? How much the ISPs will pay? And how much will this add to the internet bills of Australians who don’t illegally download?

ACLR Copyright

I also want to draw to the attention of the House to the failure of this Government to do anything to address the recommendations of this report – the Australian Law Reform Commission Report into Copyright and the Digital Economy.

Dated November 2013 and released by the Attorney General in I think February last year. Almost a year and a half ago.

It is a very important report.

It includes all up 30 recommendations.

And the bill that we are debating here tonight is an amendment to the Copyright Act. And it doesn’t respond to any of the recommendations in this report.

The key recommendation of the ALRC’s report is not this, it’s not site blocking – it’s the creation of a “fair use exemption”.

The Law Reform Commission argues that this would “make Australia a more attractive market for technology investment and innovation.”

 

When I was in Silicon Valley last year I heard much the same thing from my conversations with people at Google, at Amazon and Yahoo all told me that laws like, fair use exceptions to copyright legislation helped to facilitate the development of things like search engines and cloud computing.

And what are we doing to implement this reform here? Nothing. The report has been gathering dust for almost 18 months. And – the only change the Government has proposed to copyright law is this legislation we are debating here tonight.

IT Pricing

It is the same with this report, At what cost? IT pricing and the Australia Tax, which is a report of the House of Representatives Standing Committee on Infrastructure and Communications dated July 2013.

This report made another problem clear – we pay more for IT products than people in many other countries around the world.

Often we pay 50 to 100 percent more.

That includes everything from music to games, software and hardware.

Incredibly, it’s cheaper to buy a song from an Australian artist from the US iTunes store than the Australian equivalent.

The report makes a lot of recommendations – and once again the Government has done nothing about them.  

And that is why the Opposition is moving a second reading amendment in this debate calling on the Government to respond to both of these reports by the 17th of September and I encourage the Government to support this proposal. If the Government does not support this then it will show very clearly to the Australian people that the Government is not serious about reform in this area.

Conclusion

We do need to reduce piracy. We do need to protect copyright. If this legislation helps to reduce piracy, that’s a good thing. But we should be very careful not to overestimate how effective it might be.

When I was a kid you learnt about piracy at the start of every video that you got from the video store. It was the bit you couldn’t fast forward through.

It’s a very different world today. The internet allows us to get almost anything we want at the click of a button. And when you have to wait longer than people in other countries or pay more to watch what you want to watch, or listen to your favourite music or play your favourite game, then people understandably get angry and frustrated and look for another way to get what they want.

Legislation like this won’t stop that – not in its entirety.

Content also has to be cheap and quick and easy to get. And that’s a job for business not this Parliament.

 Ends