April 10, 2015

Approximately 5 million Australians download or access illegally provided video content each year. During the recent season of the highly downloaded Game of Thrones series, an estimated 11.6% of all worldwide illegal downloads occurred within Australia. Entertainment industry experts maintain that the steady increase in the level of illegal downloading is costly the Australian television and film industry, including the associated retail sector, more than $1 billion dollars each year.

The reasons why Australians download at such a high rate compared to other countries varies, however the main reasons include the delay and additional costs Australians face in an increasingly global entertainment environment. Consumer advocate CHOICE recently found that Australians can pay ‘up to 400% more for some subscription television content, 261% more on iTunes… and 426% more on Foxtel’.

There are currently no laws in Australia which criminalise the downloading and watching of content for personal use. Under the Copyright Act 1968 downloading content without paying is a breach of copyright and downloaders may be sued for such infringement, however if the content is not being accessed on a commercial scale such activity is only a civil issue. Many entertainment industry spokespeople have maintained that downloading such material is classified as theft, however when a person pirates content they are only making a copy of it against the wishes of the copyright owner. The owner is still capable of copying and selling the material themselves, therefore it is not legally defined as theft.

Australia is one of the few technology-developed countries in the world who do not have laws criminalising online piracy. Unlike the United Kingdom, United States, Canada and New Zealand, Australia lacks any substantial or codified protection against online piracy. In an effort to rectify this disparity, in 2014 the Australian Government, headed by Attorney General George Brandis and Minister for Communications Malcolm Turnbull, asked the Australian communications industry to design a draft Code which would provide better protection to copyright holders against internet piracy and help shape proposed legislative amendments.

In early 2015 the Australian Communications Alliance, a joint body representing telecommunication providers and Internet Service Providers (ISPs), published ‘The Industry Code’ which primarily recommended the introduction of a ‘three strikes policy’ and the possible ‘blanket-ban’ of pirating websites. While the proposed measures do not criminalise the downloading of copyrighted content, copyright holders will have the ability to apply for court orders to have all known piracy sites blocked in Australia. The Code further proposed that all ‘residential fixed, internet account holders’ be issued ‘Education, Warning or Final Notices’ when ISPs are alerted that a person has accessed copyrighted material. The system is designed to give account holders an opportunity to cease illegal activity, or challenge the infringement notices they receive (within 28 days). If all three notices are not sent within a year, the notice count reverts to zero.

However if an account holder receives their final warning within 12 months of the initial ‘Education Notice’, copyright holders will be provided assistance from ISPs to take direct copyright infringement action against the account holder. Once the final notice has been sent, the copyright holder can apply through the Federal Court for ‘preliminary discovery’ to identify an infringer’s identity and personal information to pursue legal action. The Code specifically stipulates that rights holders will not have access to any ISPs customers’ personal information until this stage and an application is successful.

Although such legal proceedings in Australia are relatively rare, one case recently before the courts may set a precedent for copyright holder access to ISPs customers’ identities. The owners of the film Dallas Buyers Club applied to the Federal Court of Australia in 2014 to have local ISPs such as iiNet and Dodo reveal the identities of pirate downloaders. After much appeal from the ISPs, Justice Perram found in April 2015 that the copyright holders be allowed ‘preliminary discovery’ to obtain personal user details to enable legal action. An important aspect of the ruling however is that Justice Perram must approve any correspondence sent to listed downloaders from the owners to reduce the possibility of parties being threatened into unfair settlements. It is also imperative to note that only internet users who uploaded, shared or ‘seeded’ the movie will have their detailed provided to the copyright owners, not users who solely downloaded the content for personal use.

Many copyright holders have also stressed their concern that as the proposed measures will only regulate ‘residential fixed’ account holders, some parties wishing to avoid the issuing of notices may establish shell corporations and conduct their downloading activities through IP addresses registered to the corporation. This possibility however has been looked at unfavourably and unlikely by Justice Perram in the Dallas Buyers Club case.

Using the proposed Code, the Government drafted and introduced the Copyright Amendment (Online Infringement) Bill into parliament on 26 March 2015. While the Bill purports to simply codify the proposed industry measures, the Communications Alliance is concerned that they were not consulted on the final version of the proposed Bill and many of the details concerning charges and implementation have not be disclosed or discussed. The Bill has been referred to the Senate Legal and Constitutional Affairs Legislative Committee with their report due on 13 May 2015. While there has been little parliamentary debate surrounding the enactment of the Bill, if the proposed amendments were successful Australian downloaders could see these measures in place as early as 1 September 2015 and face a dramatic change to the current entertainment landscape.

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