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John Stanton & Neil Gane: Forming a copyright compromise, together

Australian ISPs and rights holders are creating a framework for how internet service providers should deal with copyright infringement. Two men have been at the core of it

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 regime.

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 measures"

The two sides have also come closer together on the issue of punitive measures, though there is still some disagreement on details.

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 argues.

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 relations worldwide.

Further reading:

Background: iiNet v AFACT
Copyright enforcement in Australia after iiNET
Rights holders suffer setback in battle against ISPs

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