Monday, September 1, 2014

Should assistance to rights holders be limited

Ed Husic in the Federation Chamber today made the point that if we are going to look at mechanisms to aid the enforcement of copyright then we should also look at the issue of price.

In doing so he was picking up on one aspect of a common argument mounted by copyright infringers - that they only do it because it is so hard/impossible to get the content legally. This criticism has some validity, but it is by no means a "slam dunk."

The Husic argument is the flip-side of the rights holders' argument that the Australian Government has an obligation to assist in enforcing copyright law, for which the response should be that this obligation only exists to the extent that rights holders aren't ripping off Australian consumers.

Before people get too carried away by the rights holders' arguments just remember two things. The first is that for each individual firm the "piracy is killing us" line is a great diversion for CEO's to spin to shareholders - nothing quite like an external factor beyond your control to blame for any under-performance. The second is that the industry associations that make the point so forcefully are just doing their job, they aren't representing a "cause."

The fundamental current issue is what role should ISP's play in helping enforce copyright.

According to the AG's discussion paper:

Australia is obliged under its free trade agreements with the United States, Singapore and Korea (not yet ratified) to provide a legal incentive to ISPs to cooperate with rights holders to prevent infringement on their systems and networks.

That is a very wide description. It is an obligation to provide an incentive, and it is only to co-operate. It doesn't seem that this construction actually runs to an obligation on ISPs to take reasonable steps to prevent infringement. This was where iiNet parted company with everyone else. They were happy to assist rights holders get details of infringing parties so that rights holders could take action, they just drew the line at taking action themselves based only on an assertion. The other question is at what cost are the steps "reasonable."

There are two parallels. The first is the example of traders in second hand goods that I frequently mention. Such people are required to get and record identification information from sellers. This works as an effective mechanism to restrict them from being used as a "fence." There seems to be nothing wrong with the requirement that an ISP be required to identify and record which account was used when a specific infringing activity took place. There is equally no reason why the said ISP should not notify the account holder that the allegation of infringement has been made. But there is no basis on which the ISP should be required to take any action whatsoever to degrade or cancel a service on the basis of the mere assertion of another party, nor that the onus of resorting to a court to determine the facts of the matter should rest with the account holder (who might claim their service was unjustly restricted) rather than the rights holder.

But the Husic point is whether such assistance should be afforded to a rights holder who is merely trying to enforce a pricing regime that charges Australians more, rather than a globally equitable pricing regime and all that is sought is protection of copyright.

A similar issue arose with respect to protectionism in the earliest days of Federation. To ensure that the benefits of protectionism were enjoyed by workers, and not just pocketed by the owners of capital, an excise tariff was imposed on manufacturers that would be waived if workers were paid "fair and reasonable wages." The determination of what was fair and reasonable was actually what the Harvester judgement was about - it wasn't a "basic wage" case as we know them today.

This is our second parallel - but in reverse. Should we provide assistance to all rights holders, or only to rights holders who make their content available on fair and reasonable terms? The determination of fair and reasonable terms might take some doing - but it is a worthwhile endeavour.

There is, hopefully, a lot of constructive dialogue yet to be had about these copyright proposals. Hopefully this can be added to the mix.

1 comment:

  1. @MsLods: @havyatt I recommend: @kim_weatherall on international obligations & iiNet decision: … (pg 8)