Australia: Copyright discussion paper focuses on ISP regulation - does it get the balance right?

Highlights (7/08/14)
Last Updated: 13 January 2015
Article by Hayden Delaney

Joining us again today is Hayden Delaney who is a Partner in the Intellectual Property and Technology Team at HopgoodGanim. Hayden thanks for joining us again.

Thanks very much for having me again Kate.

Now Hayden the Government's released its Discussion Paper on piracy and copyright. I guess to start us off what were some of the major recommendations to come out of the Paper?

Yeah that's right Kate and some interesting statistics were coded in the paper and you know looking at it, it would appear that as a country Australia is a little bit of a nation of copyright infringers, something that was a particularly interesting statistics was the fact that the final episode of Game of Thrones which was broadcast exclusively on Foxtel in Australia, was illegally downloaded 1.5 million times by Australians in the 12 hours following the finale. So some pretty staggering statistics, and there might be a few reasons that are contributing to that, but in terms of what the Paper is focussing on, they're really looking at what sort of legal solutions can be had in order to try and address the issue of copyright infringement in Australia and they've put three proposals forward. One is a proposal for extending the authorisation liability for copyright infringement, and that's really trying to alter the position that was arrived at in iiNet somewhat. The other one is a proposal for extending injunctive relief; so the ability to injunct an ISP to block a certain site from being accessed in Australia, so if we think of examples, we think of the obvious examples like Pirate Bay and that sort of thing, requiring that the ISP block it. I suppose those who have a libertarian mindset might express some concern at the ability for that sort of power to be misused because if we think about it, certain sites like say Wiki Leaks for example frequently are publishing information which they don't own and they don't have a licence to and on that basis that sort of broad power could be used to block access to that sort of site in Australia so there's that concern and there's a few sort of can availing sort of balancing rights to consider as well too. And the final proposal that was put forward was extending the same harbour regime to capture things not just done by carriage service providers but search engines, universities, et cetera.

And Hayden you mentioned that the first recommendation kind of touches on the iiNet decision; do you see the paper I guess at odds with the iiNet decision?

Yeah I wouldn't say it's at odds with it, in that it's not contradicting what was found in that decision but it is trying to alter the outcome of it basically. So that decision found that ISPs don't have power to prevent the infringing act from happening, and therefore they don't meet the requisite element of having the power to prevent which is a requirement of authorisation of infringing copyright. So that was an essential element, it was found they didn't have it. What the Paper is trying to do is alter the position such that the power to prevent isn't an essential element for authorisation of copyright infringement it's just one of a number of factors that is to be considered. So not at odds, but it is ultimately trying to change the outcome.

And Hayden you mentioned at the beginning Game of Thrones and obviously we saw a lot of people download that content illegally, we certainly have a situation in Australia where Australians often can't get access to content or are required to pay more for the content when we compare ourselves with overseas. I guess does the report deal with this issue of access to content as a way of reducing piracy?

Look it doesn't deal with it directly in that it doesn't set out a proposal to try and increase access to content as a way of reducing piracy. It does acknowledge briefly that it is a problem, but none of the proposals really deal with that issue or touch on that issue. And I think if we're going to have a real discussion about looking at why Australia is infringing copyright so much, I think those sorts of issues have to be part of that discussion absolutely and the paper itself, while it may not have sort of dealt with those types of issues in any particular detail, fairly recently Malcolm Turnbull has come out and in an interview acknowledged that it is an issue and that Australians are paying 40% more than people in the US to download movies, and on top of that there's no real easy way for Australians to access content in the way they really want to. So Game of Thrones was a really good example in the sense that if you wanted to get access to Game of Thrones in Australia at the same time as when it was being released in Australia you had to have a subscription to Foxtel. So to use an analogy it's a bit like requiring people to buy a farm and really all they're after is a six pack of eggs or something like that. So I think those sorts of issues have to be on the table, they have to be considered as part of a holistic view to reforming Australia's copyright laws.

Well just finally Hayden, I guess what's your – your opinion of the Paper, do you think that the proposals strike the right balance?

Balance is a really tricky issue to consider in terms of any type of IP law. IP law is ultimately about trying to find a right balance between all these different stakeholders, so we have to absolutely encourage investment in creating content that people want to watch. If that incentive isn't there then ultimately all the consumers around the world are going to be disadvantaged because we're not going to see fantastic content because there won't be the incentive to produce it. So that's an underlying driver for having copyright laws in the first place, and that has to remain paramount of course, but on top of that it needs to be balanced against not putting all of the burden for regulating and protecting copyright on a particular type of industry like internet service providers, and on top of that we have consider what is good for consumers and whether the business model that is currently being employed in Australia is partly to blame for the rapid use of infringing websites and various sort of platforms which provide an ability for consumers to get ready access to infringing content. Whether I think it strikes the right balance my personal view is I think it's weighted a little bit too heavily in terms of regulating ISPs and the like I think it's trying to put nearly all of the burden on those particular types of organisations rather than acknowledging the fact that obviously rights owners do need to ultimately take responsibility for enforcing their own content and the law needs to enable them to do that. So there needs to be some questions asked in that regard but I think at this stage the proposals seem a little bit too heavily weighted towards regulating ISPs and carriers and what not.

And just finally Hayden what's happening now after this Paper is the Government seeking submissions or what are the next steps?

Yep that's right so the Government currently is seeking submissions on the Paper, so people will have the ability to have their say, and I think it's important for most people who have a vested interested in these laws to try and get their say in, so I'd be encouraging everyone to do that.

Yeah some good advice there and some really interesting issues raised, Hayden thanks so much for joining me.

Thanks very much for having me again Kate.

That was Hayden Delaney, who is a Partner in the Intellectual Property and technology Group at HopgoodGanim. Listeners if you have any questions for Hayden you can send them through either using the panel on your screen or via email to

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