Brandis’ leaked anti-piracy proposal is unrealistic

Originally posted on The Conversation by Nicolas Suzor and Alex Button-Sloan.

The Australian Government has proposed Internet Service Providers (ISPs) should monitor and punish Australians who download and infringe copyright.

In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law that would force ISPs to take steps to prevent Australians from infringing copyright.

What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.

The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.

##Unlikely to help pricing and availability

The problem is that this move is not likely to make things better. Similar schemes have been tried around the world, but there is little evidence they actually work to reduce copyright infringement.

This draft proposal does nothing to address the basic issue that Australians are not being fairly treated by the copyright industries. Compared to consumers in the United States, Australians pay more for digital downloads, have less choice in how they can access film and television, face large delays before content is released, and much foreign content is still not available at all in Australia.

Recent research suggests that Australian consumers feel ripped off by distributors, and this is a key reason why they choose to download films and television instead. If foreign film and television networks want to reduce illicit downloading, many think that their first step should be to provide better, cheaper, and more convenient legal ways for consumers to pay for access.

Unintended consequences

Meanwhile, the draft proposal is likely to have serious unintended consequences. It is likely to raise the price of internet access in Australia, as ISPs will pass on the increased costs of monitoring and enforcing copyright.

The proposals will also cause major uncertainty in copyright law. The government plans to overturn the recent iiNet case, where the High Court ruled that ISPs are not responsible when people use BitTorrent to download films. The Court sent a strong message that iiNet could not be liable because it did not control BitTorrent protocols and did nothing to encourage their use.

The iiNet case confirmed a basic principle of copyright law: service providers are only responsible for the conduct of third parties when they have some control over their acts. The leaked proposal will remove this limit and, with it, the ability of the law to clearly distinguish between real wrongdoers and companies who merely provide general purpose services to consumers.

This will massively increase the potential risks for companies that provide legitimate services. As well as ISPs, these include hardware manufacturers, cloud service providers, libraries, schools and universities, and many others.

Requiring service providers to act as copyright police is also dangerous. It removes the safeguards that our courts provide in ensuring the law is applied fairly. Copyright law is incredibly complicated, and allegations of infringement made by copyright owners against consumers have historically been notoriously inaccurate. ISPs are not well placed to investigate these claims, and there is a serious risk that consumers might be unfairly punished under these proposals.

Consumers left out of the debate

The proposals create a strong incentive for ISPs to agree to rightsholder demands to protect their interests. They do not, however, provide much protection for consumers, who will have no seat at the negotiating table.

The proposals are also ominously vague. They include the threat that more regulations will be introduced if ISPs do not go far enough to protect copyright. Eventually, this could also turn into a so-called “three-strikes” regime, where entire households are disconnected from the internet after several allegations of infringement.

Despite having been in the works for at least six months, this leak is the first time the public has been able to see any details. Meanwhile, the Attorney-General has been meeting with copyright lobbyists, but apparently not yet with either consumer groups or with telecommunications companies.

It seems the Attorney-General’s Department didn’t even listen to Malcolm Turnbull’s Communications Department, which has stressed the importance of ensuring that Australians have increased access to legitimate sources of content at a fair price.

Once the leaked proposals are officially released, Australians will have less than a month to comment. Since this is likely to impact on everyone, we suggest that you add your voice to the debate – but you’ll have to be quick. The Conversation

KAFTA copyright language hints at overturning iiNet decision, is wholly unsupported by evidence

Kim Weatherall has an excellent analysis of the proposed IP chapter of the Korea – Australia Free Trade Agreement. You should go read it now.

One of the most concerning things is that the agreement would require Australia to give

An unclear, potentially extensive undertaking to ‘provide measures’ to ‘curtail’ ‘repeated copyright infringement on the Internet’ (note – not copyright piracy; not copyright infringement causing substantial prejudice to copyright owners – but any repeated infringement);

This type of wording hints at an obligation to legislatively overturn the iiNet case, or to introduce something like graduated response (three-strikes) or website blocking. As Kim points out, the provision wouldn’t actually require this, but including the language has strong rhetorical force.

Let’s not mince words; this is just stupid. We don’t have the evidence that stronger copyright laws are required, we don’t have evidence that graduated response works, but it is problematic for due process, and there is absolutely no reason, if it is required, that we should entrench these kind of obligations in bilateral trade agreements, where we can’t easily modify them. This isn’t evidence-based policy; it’s abdicating our legislative responsibility to serve the interests of foreign rightsholders. It really makes no sense.

The Marrakesh Treaty could bring the world’s books to the blind

Originally published in The Conversation by Nicolas Suzor and Suzannah Wood.

An estimated 285 million people worldwide are visually impaired. Some 90% of those live in developing nations, where less than 1% of the world’s books are available in a form they can read.

In developed countries, the situation is only marginally better: only around 7% of the world’s books are accessible to print-disabled people.

The right to read is part of our basic human rights. Access to the written word is crucial to allow people to fully participate in society. It’s important for education, political involvement, success in the workplace, scientific progress and, not least, creative play and leisure. Equal access to books and other cultural goods is also required by international law.

The technology now exists to deliver books in accessible electronic forms to people much more cheaply than printing and shipping bulky braille copies or books on tape. Electronic books can be read with screen readers and refreshable braille devices, or printed into large print or braille if needed.

Now that we have this technology, what’s been referred to as the global “book famine” is a preventable tragedy.

Creating a global knowledge-sharing network

The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled aims to increase the number and range of books available worldwide. It creates a new global regime for efficiently sharing accessible books and reducing the costs of digitisation.

The treaty was finalised just under a year ago, with 66 signatures so far. Australia has not signed yet, and time is running out – we must sign by June 27. When we asked the Attorney General’s Department, we were informed that the Treaty is “under active consideration”, but time is running out.

Signing the Marrakesh Treaty sends an important signal that Australia supports its goals. The Treaty will only go into effect once it has been implemented by 20 countries, so it is vital for countries around the world to maintain the momentum of this historic agreement.

If Australia does not sign this month, we will lose an opportunity to take a leading role in establishing a global knowledge-sharing network. Our major trading partners, including China, the US, the EU and Indonesia, have already signed.

Digitising the world’s books

Part of the problem behind the book famine is, like many others, one of money. Many print books are not available in digital form, and many digital books are locked down by technical restrictions – “Digital Rights Management” – intended to prevent unauthorised copying.


Braille books are so big – four or five huge volumes, for a book anyone else would read as a paperback.
Andrew Lorien

Australian copyright law allows educational institutions and non-profits to digitise print books on behalf of people with impaired vision. But because it is expensive to scan and proof-read books, access is still the exception, rather than the norm.

The Marrakesh Treaty ensures that organisations who help visually-impaired people around the world can cooperate, rather than duplicating their efforts. Currently, copyright law often requires institutions in each country to make their own accessible copies. In a system that is already poorly funded, this creates massive waste, and means that far fewer books get digitised.

The Treaty sets the stage for a far more efficient, coordinated approach by ensuring that accessible copies of books can be shared across national borders.

Fixing the problem for the future

Creating an efficient regime for sharing accessible copies of books is the only way to fix the book famine. With a slight change to copyright law, blind people in Australia could almost immediately have access to the accessible books that are available in larger countries (like the US).

The changes would also allow blind people the world over to access books directly over the internet, greatly reducing the administrative costs of providing access to people in developing countries. Increasing the ability of people in these countries to access the world’s knowledge resources is one of the keys to achieving the UN’s Millenium Development Goals.


An Internet Archive in-house scan in progress.
Wikimedia Commons

Once an efficient book-sharing regime is in place, there is real hope for making the the remaining 93% of the world’s books accessible.

Google is helping with the massive digitisation project. The search giant recently announced it has already digitised 30 million books. Google has provided high-quality digital copies to HathiTrust Digital Library, a non-profit organisation that can then make those books available to blind people around the world – if it wins an upcoming lawsuit.

Other projects by the Internet Archive and Project Gutenberg are also contributing to a rapidly growing accessible commons.

These efforts could see the proportion of accessible books available worldwide jump to 25% – and growing. But until our copyright law is changed, Australians will continue to be locked out.

By signing and implementing the Marrakesh Treaty, Australia can show it is a world leader on equality and disability rights. Signing costs us nothing, but is the first step in providing massive benefits to people with print disabilities both here and around the world.

Helping the millions of global citizens affected by visual impairments to fully participate in society is nothing short of imperative.

The Conversation

Borrowing a Stairway to Heaven: did Led Zeppelin rip off a riff?

Originally posted in The Conversation by Nicolas Suzor and Eleanor Angel.

More than 40 years after the release of Stairway to Heaven, English rock band Led Zeppelin are facing allegations that its iconic guitar riff was stolen from Taurus, a song released in 1968 by the American rock band Spirit.

The two riffs are clearly similar: they share a four-bar instrumental guitar passage with similar harmony, tempo and stylistic features. Businessweek has created a short game where you can test your skill at telling the two apart.

But is this enough for Spirit to demand a share of the credit – and the royalties?

Read More

Free-riding, cooperation, and ‘peaceful revolutions’ in copyright (post-print draft)

I have a new article in press with the Harvard Journal of Law & Technology. I’m interested in comments on the post-print draft. Abstract:

Modern copyright law is based on the inescapable assumption that users, given the choice, will free-ride rather than pay for access. In fact, many consumers of cultural works – music, books, films, games, and other works – fundamentally want to support their production. It turns out that humans are motivated to support cultural production not only by extrinsic incentives, but also by social norms of fairness and reciprocity. This article explains how producers across the creative industries have used this insight to develop increasingly sophisticated business models that rely on voluntary payments (including pay-what-you-want schemes) to fund their costs of production.

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Baidu’s perfect paradox: free speech and the right to censor

Originally posted on The Conversation, by Suzannah Wood and Nic Suzor.

According to a US court, ‘free speech’ means internet search engines can choose what they allow to show up and filter out.
Brian J. Matis/Flickr, CC BY-NC-SA

China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story.

Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results.

But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.

Read More

Some assorted thoughts on the ALRC fair use report

The ALRC Report on Copyright and the Digital Economy was released earlier this month. It’s an extremely thorough and well-reasoned analysis of exceptions in Australian copyright law. The main thrust of the report is to recommend that Australia introduces fair use; in the alternative, the ALRC recommends consolidating the fair dealing defences and expanding the category of uses to which they can apply.

Overall approach

The ALRC adopts a conservative approach here. The suggestions it makes are by no means radical – usually, the ALRC suggests that existing Australian copyright jurisprudence will inform any new law, and the report steers well clear of making any suggestion that fair use would reverse some of the more controversial decisions.

This is the report’s greatest strength. The reasoning is unassailable, and the reforms suggested by the ALRC are mostly in the relatively minor form of clarifications, simplification, and fixes to issues that are commonly understood to be problematic in the current law. The ALRC seeks to build consensus on this limited approach – in such a way that pragmatic law reform might be politically feasible. Where there is real disagreement, the ALRC punts to the courts (in terms of identifying whether existing cases would have different outcomes under fair use) or to future law reform processes.

Read More

Fairness in copyright – or why rates of infringement are so high

Here’s a paragraph from an article I’m writing about free-riding. It distils my argument about the role of fairness in copyright, and why the industry is only harming itself when it does things like make Game of Thrones only available on Foxtel:

In recent decades, the copyright industries have been losing the normative high ground. The rational economic model of the user that underpins consumer markets for creative works captures only the self-interested motivations of audiences, and discussions of ‘fixes’ for copyright law generally focus on deterring infringement through legal penalties. Because legal penalties are rare, most recent law reform attention has focused on increasing the severity of punishments and the regularity of enforcement by pushing responsibility for monitoring and enforcement to private entities. This move towards private enforcement typically entails a significant trade-off to due process, as courts lose oversight of increasingly punitive measures. To make things worse, the increasing strength of copyright tends to disconnect the law from practice and the exploitative way the music industry treats artists has greatly reduced the perceived fairness of copyright business models. The copyright industries have attempted to shift social norms back in their favor, but their attempts have been somewhat clumsy to date (“you would’t steal a car!”).

No wonder, then, that users infringe copyright – as the fairness norm around paying for access weakens, people will more often act as rational actors. Since the likelihood of getting caught is still minuscule, free-riding is often the rational choice.

Michael Geist: Taking user rights seriously — two weeks that changed copyright

At the Global Congress in Cape Town, Michael Geist reflects on the two weeks that changed copyright in Canada in 2012. Canada went from a maximalist copyright trajectory in 2005 to the global champion of user rights in 2012. Canada’s new legislation includes the most favourable provisions for users across a huge range of issues; Canada’s Supreme Court cemented users rights as a practical tool in five decisions delivered on a single day in 2012.

Geist reflects on the lessons from Canadian reform. Why did it happen?

  1. Politics.

  2. Personalities. Chief Justice McLachlin & Justice Abdella provided a vision about what copyright was for. Politicans: Ministers Clement & Moore came with a vision for reform; MPs Bulte & Angus were able to argue for the interests of their constituents. Copyright scholars were active in shaping the discourse.

  3. Most important was the public. 90,000 that joined facebook group; 8,000 that participated in the consultation. Two letters from a constituency are enough for an MP to take notice and pay attention.

Geist seems optimistic about grassroots reform, if the public can become organised. Of course, this probably oversimplifies and underestimates the massive amount of work the Geist and others put in to organise the opposition to Canada’s maximalist proposals.