The government wants your opinions on their recent proposals to combat copyright infringement and you have until 1 September to provide them.

These proposals have the potential to subject a wide range of organisations, from libraries to cafés providing WiFi, to legal uncertainty and red tape. For consumers they raise the possibility of higher internet prices and potential disconnection of service. They also propose welcome changes to the scope of ‘safe harbours’ for intermediaries and provide a process for blocking websites whose dominant purpose is copyright infringement. Because the proposals are quite technical, we’ve put together a quick note to help explain the legal concepts and impacts.

As we have stated on many previous occasions there are some key criteria that responses to online copyright infringement should address.  We have rated the key proposal in the discussion paper,  to extend authorisation liability against these below. 

• The scheme is effective and proportional

Despite the stated intention of requiring ISPs to act to curb copyright infringement, the proposal to extend authorisation liability raises legal risk and uncertainty for a much wider range of intermediaries. It may also induce reliance on the safe-harbours, with the requirement to have an implemented policy for termination for repeat offenders. Both of these extensions, to the range of intermediaries and the severity of penalties, are arguably disproportionate responses.  Meanwhile, while the intention to collect evidence as to effectivness as the scheme progresses is welcomed, it would be prefereable to have evidence of the effectiveness of the proposals before we implemented them, especially considering the questionable benefits of overseas schemes. 

• The scheme is developed with the input of consumer representatives and protects consumer interests

The government has specifically asked for input on how to protect consumer rights and interests. It is important that consumer representatives are involved in development of any industry codes. The scope for consumer voices will be reduced if intermediaries simply fall back on the safe harbours with their defined steps.

• Safe harbours are properly implemented in accordance with our international obligations (including extending it to cover universities, schools, libraries and internet intermediaries)

The proposal to extend the safe harbours is a welcome proposal that will bring us into line with countries with similar provisions, such as the USA.

• It improves opportunities for all Australians to access cultural works legally and, where commercially provided, at a reasonable price.

The discussion paper has some very positive language about improving legal options for Australians, and there have been some positive moves recently from major content suppliers to improve timely and competitively priced access. Yet Australians still pay more for and wait longer for content.  Despite this, the paper itself makes no moves to mandate or encourage increased access.

• It implements a logical, cohesive copyright system that has been updated in line with previous recommendations. 

If there is to be increased attention on enforcement, the law that is being enforced should be sensible. The ALRC recommendation on fair use are a good case in point. While the discussion paper seems to be contemplating ISPs taking actions against people viewing infringing videos or downloading infringing music, under current law creating non-commercial highly creative mash-ups or even use of digitised historical orphan works can be copyright infringement.  This poses interesting questions about what would be reasonable steps for intermediaries to prevent these common, and arguably highly beneficial, infringements. There are a number of other outstanding reviews and recommendations that should be implemented at the same time, if not before, as any additional enforcement provisions.

The proposals are only proposals at the moment. With constructive input we would hope they can be refined to address the concerns raised above. If you would like to make a submission, EFA has a simple guide to addressing some of the questions that you may find helpful. Meanwhile CHOICE would like to hear about any times you have faced issues of access to culture.

You have a week, time to get writing!