The copyright battle in Australia

There’s little sign that the global copyright war will let up any time soon. Wherever you go, the content industries are working hard to secure stronger “protections” for intellectual property and tougher penalties against those who infringe against these protections. Given the forces they can bring to bear – an army of lobbyists and an ocean of cash – it’s not surprising that industry has won many of these battles.

Australia is one front in this war, and several notable skirmishes have occurred in recent times. The most significant has been a case in which the movie studios, represented by AFACT (the “Australian Federation Against Copyright Theft”) sued Australia’s third-largest ISP, iiNet, for authorising copyright infringement by allowing its users to download movies using BitTorrent.

Under Australian copyright law, a third party can be held accountable for a breach of copyright if they are found to have authorised the breach by “countenancing” it and providing the means to do so. This was tested in the courts in 1975 when a university was found liable for breaches of copyright because it provided a photocopier which students could use to make copies of books.

Bringing this suit against iiNet was a clear attempt to make ISPs liable for the content traversing their networks and is a probable first step on the road to introducing a graduated response mechanism to Australia. The ultimate outcome of the case will have enormous repercussions for the future of the industry and copyright law in Australia.

Fortunately, the signs have been positive so far. AFACT initially lost the case, with a heartening judgement by the trial judge, Justice Cowdroy, who even took AFACT to task for misleadingly using the word “theft” in their name. Justice Cowdroy found that the ISP had not authorised the infringement because they did not provide or operate BitTorrent; and even if they did, could fall back on the safe harbour provisions of the Copyright Act.

Unfortunately the content industry were not willing to let things be, and despite already losing one appeal so far are set to take the case to the High Court. Should iiNet eventually be found liable, it will precipitate a seismic shift in the way ISPs operate and could usher in an era of greater monitoring and punitive measures for alleged infringers. The industry are clearly hoping for a “three strikes” system. It’s unlikely this would affect industry revenues, but Australian internet users would surely suffer from this lack of due process.

One of the more ridiculous but high profile cases involves two well-known songs with Aussie themes. Larrikin Music vs EMI is a case in which, for once, a large music publisher is on the receiving end of an overreaching copyright claim. Larrikin is a small company that owns the copyright to a well-known folk song, “The Kookaburra Song”, which was composed in 1932 for a contest being held by the Victorian Guides. They claim that their song was plagiarised in the opening flute riff used in the 80’s classic, Men At Work’s “Down Under”.

They claim that the melody in those first bars was copied from the Kookaburra Song. You can listen to some kids singing the former here and the Men at Work song (if you aren’t old enough to remember it) here, and come to your own conclusion.

Sure enough, these handful of notes were sufficient for a court to find that the classic song infringed on Larrikin’s copyright, and this too has been upheld. It’s hard to find a better example of copyright acting as a barrier to the creation of art, but I don’t expect a change of heart from EMI any time soon.

One tactic that industry employ around the world is the commissioning and release of reports showing the devastating impact piracy is having on the local economy. We’re not spared this perennial favourite; several of these reports have made the news in recent weeks. The first, released by AFACT, extrapolated a telephone survey into massive economic damage, claiming piracy costs the Australian economy $1.4 billion per year, and at least 6,100 jobs. The numbers and methodology are both suspect and attracted a fair amount of criticism.

The second report, by sister lobbying organisation the Australian Content Industry Group, was based on the flawed TERA report from Europe and applied those numbers to the Australian economy. They took a little poetic license in making the assumption that the rollout of Australia’s National Broadband Network would increase internet speed and penetration and thus lead to more piracy. The result, of course, would be billions lost to the economy and 8,000 jobs gone.

Both of these studies indulge the bizarre conceit that any movie ticket sales forfeited due to piracy represent a net loss to the economy. Of course, this isn’t so; and in a country like Australia, a net importer of content, the opposite is likely to be true, as the money is likely to be spent on goods or services more efficient at creating employment locally. Nevertheless, these reports are getting into the hands of the media and lawmakers, and used as ammunition in the fight for tighter laws.

As if that wasn’t enough, we face increasing pressure on the diplomatic front. Significant, and regressive, changes were made to Australian copyright law as a result of the Australia-US free trade agreement, including the outlawing of circumventing technological protections measures (TPM) such as DRM schemes. This pressure has kept up, with negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) and now the Trans-Pacific Partnership burdened by the usual demands from the copyright lobby: longer terms, criminalising infringement, and statutory penalties.

Like our counterparts at ORG and many organisations around the world, we here at Electronic Frontiers Australia feel that the debate around copyright long ago derailed. The discussion is almost always about the evils of piracy, which is perfectly legitimate when put in proper perspective. But what we really want to see is a broader discussion that takes into account the wider benefits to society and artists that copyright is designed to bring. Ever-longer copyright terms and tougher penalties come at a cost to consumers and artists who now need legal advice every time they create a new work.

We’re doing our best to reframe the debate so that Australian consumers have a voice.

This was originally posted at the ORGZine.