THE ISSUE
The federal government says Australians are rampant illegal downloaders, citing research suggesting one in five adults have infringed online copyright. Downloads threaten the copyright industry, though the damage has not been independently quantified. The government also cites an obligation under unratified free trade agreements to clamp down on online copyright infringement. Consumer advocates counter that Australians are nudged down the illegal path by high prices and a lack of access. They argue the government is taking too much notice of the copyright lobby and too little of consumer rights.
THE LAW
Internet service providers (ISPs) are not liable for online copyright infringements by their customers. This was established in a key 2012 High Court test case involving ISP iiNet and a group of Hollywood movie studios. In a unanimous decision, the court held that iiNet could not be found liable because it did not control the sites used by customers. ISPs may be indifferent to customer infringement, the court said, but that doesn't mean ISPs authorise it. The court found there were no reasonable steps that iiNet could have taken to curb infringements by its customers.
THE PROPOSAL
There are two key proposals in a whitepaper, both targeted at ISPs. The first would compel them to block customer access to illegal downloading sites. The second would put more onus on ISPs to take "reasonable steps" to curb infringements by customers. The government did not specify what the steps might entail, but based on those in other countries, they could include ISPs sending warning letters to infringing customers or slowing down their connections. The law wouldn't overturn the 2012 case, but it would mean that a similar one in future would likely go the way of the copyright industry.
THE REACTION
ISPs will likely pass the cost of extra monitoring and enforcement onto customers, said consumer group Choice. It said similar policies in France and New Zealand have been costly, and urged the government to "consider the driving factors behind piracy", such as access and cost. Communications Minister Malcolm Turnbull, whose signature appears on the whitepaper, said in interviews this week that content owners will have to justify why they charge more for Australians in the ensuing debate.
THE FUTURE
The government's real endgame is to force ISPs back to the negotiating table, said Professor Andrew Christie, an intellectual property law expert at the University of Melbourne. Since the 2012 High Court decision, ISPs have had no need to negotiate. The government wants ISPs to take more responsibility, and reach a voluntary agreement with copyright holders. If they don't, Prof Christie says, the government's message is clear: they will regulate, and regulate hard. The public have until August 25 to submit feedback on the proposals.
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