John Stanton (left) and Neil Gane (right) disagree on
how close their positions are
Earlier this year, the Australian High Court unanimously
ruled in Roadshow Films v iiNet that ISPs were not
liable for its users' IP infringement, despite receiving
notices of the activity. The holding shifted the balance of
power in the negotiations between ISPs and rights holders on
the responsibilities of service providers to prevent
infringement. The resulting agreement may well serve as a model
for other jurisdictions dealing with ISP liability.
As the lead negotiators, John Stanton of the Communications
Alliance and Neil Gane of the Australian Federation Against
Copyright Theft will play major roles in shaping the new
Speaking on behalf of major Australian service providers
like iiNet, Optus and Internode, Stanton said that the
preference is to come to an agreement and an industry scheme
rather than legislation.
Gane also believes that there is a lot of room for agreement
and common interests: "As convergence becomes a reality,
telecommunication companies are getting into the game of
content distribution and we are fast adopting the same game
plan – to monetise content."
Both sides agree that the system should have a heavy
emphasis on education and notice to users.
"It appears to us that the vast majority of infringers are
casual infringers, not hardcore 'torrent freaks', explained
Stanton. "We think casual infringers will respond to a
demonstration that their actions are detectable and likely
illegal, and inform them of legal ways to gather the content."
He proposes an education programme that would inform users on
the basics of copyright law, as well as practical issues such
as how to secure their wireless networks from unauthorised use
and legal ways to access content.
Rights holders also believe that educating users has to be a
major part of the agreement, stressing not only the need to
teach users about legal ways to access content, but also the
dangers of piracy to the consumers themselves.
"Rights holders recognise that we have a role to play in
making consumers aware of the wide variety of places where they
can get legal content without any of the online risk involved
in engaging with pirate sites," says Gane. "It is widely
recognised that malware designers know where internet users
like to go and what key words they often use – such as
'free movies' or 'free TV shows'."
"The two sides
have come closer together on the issue of punitive
The two sides have also come closer together on the issue of
punitive measures, though there is still some disagreement on
The ISPs have taken a strong stance against disconnecting or
blocking users. "Previously, the rights holders were pushing
for the right to have customers suspended and disconnected
without a court order, and they've now effectively backed off
that demand," says Stanton. "They were also asking for the
ability to shape and change the speed of certain types of
internet traffic, and they seem to have moved beyond that
request as well."
Gane would still like to see some form of technological
measures to prevent infringement by repeat offenders, though he
stressed that they would be used at the ISPs' discretion. He
advocates a series of "mitigation measures" such as "temporary
reductions of Internet speeds or redirection to a landing page
until the subscriber contacts the ISP or reviews and responds
to educational information about copyright," with a dispute
resolution framework and a right to arbitration.
Stanton says that the biggest obstacle between the ISPs and
rights holders is deciding who should pay for such a system. He
argues that whether the system to detect infringement is manual
or automatic, it would result in significant costs to ISPs.
"Rights holders are the ones who benefit from it, and they
can afford to fund such a program many times over," he
Stanton also believes that piracy is a symptom of a larger
issue: "We think Hollywood studios need to understand that the
consumer mindset is changing. Australia has a history of
staggered releases, where we get content much later than other
countries such as the US, and consumers don't want to wait." He
points to a recent episode of Game of Thrones,
where some trackers showed that 10% of illegal
downloads worldwide took place in Sydney alone. New episodes of
the show are often released in Australia at least a week after
the US release. "Rights holders not competing with free;
they're competing with free and available," he says.
Gane disagrees. "To suggest that the content industry simply
reduces its already competitive prices and makes all content
globally available across all delivery platforms oversimplifies
what is a sophisticated business sector," he says.
Whatever they come up with, these negotiators will create an
agreement could serve as a model for ISP-content provider
Background: iiNet v AFACT
Copyright enforcement in Australia after iiNET
Rights holders suffer setback in battle against ISPs
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