The Senate passed controversial anti-piracy legislation, the Copyright Amendment (Online Infringement) Bill 2015, last night. But it’s not so clear whether the legislation will actually achieve its stated ends of reducing piracy, and it might be easily circumvented by the public.
Arguably, the media industry can do more to prevent piracy by making content more easily accessible rather than quixotic efforts to block it using legislation.
Despite the bill being passed in both the House of Representatives and Senate, Labour MP Ed Husic and Greens Senator Scott Ludlam have spoken publicly about their concerns about the legislation.
Husic argued that the bill “favours the interests of rights holders over consumers” and “doesn’t actually deal with the way of getting that content to people in much more efficient means”. Ludlam echoed this, stating: “This is what happens when you get a government that only listens to one side of the argument – the public interest gets left in the dust.”
The legislation is an attempt by the government to curb piracy in Australia. It was backed by industry groups such as the Australian Film and Television industries. Brett Cottle, from the Australasian Performing Rights Association (APRA AMCOS), has argued that the industry had been “bled dry” by piracy.
This issue gained prominence after the Online Copyright Infringement Discussion Paper was leaked by Crikey last year. More recently, the ongoing legal case involving the Dallas Buyers Club and iiNet has again raised questions of piracy in Australia.
But does the new law solve more problems than it creates?
The intention is to curb online piracy, particularly of music, television and films. This is an area in which Australia has become a leader. But the legislation curbs piracy at what costs to consusmers?
The proposed annual estimated cost to carriage service provider (CSPs) of A$130,825 for implementing the law’s requirements will arguably be passed onto consumers through the pricing of internet services.
There are also question around the abuse of such powers and the content that the legislation could block.
Matthew Rimmer, intellectual property academic, has raised concerns about how this could be “abused in a variety of different ways in terms of engaging in censorship or trying to engage in rent seeking”. He suggests that sites like Wikileaks could fall foul of these laws.
Even if a site is blocked, Australians might bypass the restriction by many means. One is already used by many Australians: Virtual Private Network (VPN) geo-blockers. These hide the user’s geographic location, thus bypassing any regional blocks.
More than 200,000 Australians have already used services such as these to access Netflix prior to the company’s launch in Australia. Mumbrella reported recently that more than 680,000 Australian households use this technology to access video content, not all for piracy.
But the media industry has a different perspective on the use of such technologies. In the Mumbrella article, Andrew Maiden, Australian Subscription Television and Radio Association (ASTRA) chief executive, compared the use of VPNs to “getting around that a supermarket has a faulty checkout where you can take goods out without paying for them”. He added that just because it’s possible to circumvent a law, that doesn’t make it right to do so.
Does it actually work?
Australian media organisations argue they are doing their bit to combat piracy by making content legally available. In a Copyright Act inquiry earlier this year Foxtel’s Bruce Meagher argued that the company was doing its bit by releasing content at the same time it was released in the US and at a competitive price.
What is not considered here is that Foxtel has a relatively small penetration rate in the Australian market, at only 30%. This is far less than the pay-TV penetration in the US (84%) and UK (50%). So even if Foxtel releases content sooner, most Australians still don’t have access to it unless they sign up for a pay TV account, which might include many channels and programs they’re not interested in.
However, during the Copyright Act inquiry, Christopher Chard from Village Roadshow Films noted that traffic from the UK to a piracy site diminished significantly once the site was blocked in that country. This is despite some people in the UK using VPNs to still access that site.
In the UK more than 100 websites have been blocked since similar legislation was introduced in 2012. A report by Incorpro found a 73.2% decrease in traffic after the introduction of site blocking in the UK However, the report also found a boost in traffic to other sites that hosted pirated material. There are also some questions about the methodology of the report, and whether it accurately tracks traffic to blocked sites, particularly over VPN.
On the other hand, there is evidence of piracy decreasing when content is made available to the consumer legally. For example, there is evidence of a decline in piracy when Netflix enters a particular region.
Netflix arrived in Australia this year. Given that many of the programs acquired illegally by Australians include many of those available on Netflix, one might expect piracy rates here to decline as well.
Who should change to fight piracy?
This year Fremantle Media announced that it will no longer be removing any pirated clips of American Idol. Instead it has found a way to profit from those fan-uploaded YouTube clips of its program.
According to Variety, the company has partnered with BroadbandTV to identify and manage user-uploaded content on YouTube for more than 200 shows, including American Idol, The Price Is Right, America’s Got Talent, Baywatch and The X Factor.
Olivier Delfosse, COO of Fremantle Media, stated that:
When we see a fan of our show who has gone through the hassle of uploading (content from) it, it’s not an indication of them stealing from us – we see it as fan loyalty […] It doesn’t matter if we upload the official clip or a user does – the value to the advertiser is the same.
Is legislation that blocks so-called piracy sites really the solution to the problem associated with online piracy? It doesn’t solve the most common issue raised by Australians: legal and fairly priced access to the content they want to watch.
Ultimately, it’s more likely that solutions such as those offered by Fremantle Media and Netflix, and a re-thinking of media companies' business models, will eliminate piracy rather than heavy-handed top-down legislation, which is also relatively trivial to bypass.
Marc C-Scott is a board member of C31 Melbourne (Community Television Station).
Authors: The Conversation