Monday, September 8, 2014

When all you have is a hammer, everything looks like a nail

In advance of tonight's Online Copyright Infringement Forum I thought I would indulge myself with one more, slightly differently argued, point about online copyright.

But let me start by noting how predictable submissions on the discussion paper have been. Rights holders uniformly back the proposals, ISPs and others suggest the "problem" is the lack of availability of legal content and the need to "follow the money" to close down advertising supported sites.

What is only slightly less predictable is the commonality of global positions, with, for example, a submission from Assotelecomunicazioni-Asstel which is the business association of Italian telecom operators.

But the title of the blog post reflects the fact that the proposed solutions in the discussion paper are to amend copyright law to change the definition of authorisation, and then change the safe harbour provisions. This is a dangerous way to proceed for three reasons:

  • Any change to the law that failed in the High Court just brings us back to the beginning of a series of requests being complied with or not and potentially leading to further litigation;
  • Relying on the tightening the authorisation and broadening the safe harbour protection involves a lot more than the ISPs, especially groups like Universities who make no direct revenue from the infringing behaviour, and
  • It continues to place the focus on the "innocent" party - the ISP - rather than the infringing party - the end-user.
The issue should be dealt with less as a matter of trying to extend one definition of offence and then limiting its application and more as a matter of straight-forward law enforcement.

I regularly refer to the rules that apply to pawn brokers and dealers in second hand goods. Each state has its own legislation similar to that for NSW, which requires dealers to be licensed. A condition of the licence is to do certain things to assist law enforcement. This includes production of records to authorised officers without warrants (s17).

Telecommunications service providers already have obligations under (s313(1) to "do the carrier's best or the provider's best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories." 

This obligation is typically included in the provider's contract with its customers - for example, clause 3.7 of Telstra's general consumer terms states "You must not use a service to commit an offence or allow anybody else to do so." 

As is now well known s313(3) requires service providers to "give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary " for (amongst other things) "enforcing the criminal law and laws imposing pecuniary penalties." 

In my understanding ordinary copyright infringements do not incur "pecuniary penalties", only damages. However, under s132AC of the Copyright Act 1968 the infringement on a commercial scale potentially incurs pecuniary penalties and imprisonment.  

Hence, on that reading the legislative powers necessary to require telecommunications providers to assist in prevention of copyright infringement already exist.

This is particularly clear in the case of blocking the commercial websites. While both Google and Communications Alliance have raised the spectre of the misapplication of s313(3) by ASIC, the reality is that in the other two cases where it has been used (one by ASIO as reported in The Australian in July 2011 and the blocking of the INTERPOL 'worst of' list) have been proportionate. 

No one has questioned the validity of ASIC in seeking to block access to the website it was targeting. The issue was that ASIC was stupid enough to block the IP address of the hosting provider rather than the domain name, and that it took three days to identify where the blocking request came from.

These issues can be simply rectified by amending s313 to include a provision that the Minister can make regulations about the way that assistance is to be provided. One regulation should address website blocking and introduce three requirements - that only a domain name can be blocked (not a page within a domain nor an IP address), that the block must redirect to a landing page explaining the site has been blocked, and that both the agency requesting and the recipient must keep a record of the request and notify their relevant regulator (ACMA for provider, AGD for agency).

While it might seem extreme to create a subordinate regulatory power to the Minister in this way, the regulation would only restrict the requests that can already be made, the instrument would be transparent, and the instrument would be disallowable.

In brief, there is no need for any law to be changed to implement a website block for sites that are infringing copyright on a commercial scale. 

In the case of individual users there is a case for creating a new enforcement agency (or task for an existing agency) for copyright infringement. The extent to which said agency should be required to provide assistance should be contingent upon the extent to which the rights holder has acted to protect themselves - in particular by making legal means to obtain the material at a fair price available to Australians.

This requires the conversation to be conducted by the Communications Minister exclusively, not the Attorney-General. With the simple amendment to s313 the Minister could create a system of assistance to be afforded rights holders. This approach has the added benefit of recognising that the Act at s314 already provides that the terms of providing assistance are agreed between the person assisting and the agency seeking assistance, and that in doing so the person neither profits nor bears the cost of providing the assistance.

I will be otherwise engaged tonight, but I'm prepared to bet the conversation will go absolutely nowhere productive, but I do intend to endure the recording. Both industries are experts in arguing from positions rather than principles. 


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