Draconian copyright will encourage piracy

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ScreenHunter_1392 Feb. 25 09.35

By Leith van Onselen

Attorney-General, George Brandis, continues to act like a dinosaur on copyright. In recent weeks, he has signaled that the Government will take a hard line on copyright infringement, announcing widespread plans to censor the internet and introduce secondary liability, while showing resistance to a “fair-use defence” – effectively bowing to the US pro-copyright lobby.

Brandis’ resistance to “fair use” is particularly questionable. A “fair use” right would legalise many things that most of us assume are already legal, such as ripping a DVD to a tablet, posting a video on YouTube of our baby dancing to the radio, or producing a satirical version of a song.

Excluding a “fair use” defence also opens up the legal system to a raft of potentially frivolous law suits.

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As noted in the AFR today, it remains illegal in Australia to make a copy of a digital original video for any purpose, even personal use. And while the movie industry acknowledges that format-shifting for private use is theoretically reasonable, it argues that once to a digital format like MP4 or AVI, the temptation to unlawfully share it with others increases. Hence, its continued opposition.

Then there is the broader issue of Australians being denied legitimate means to purchase content legally. Some readers might have heard how Foxtel has stitched-up a deal for exclusive rights to Game of Thrones and True Detectives. Under this deal, viewers seeking to watch these shows will only be able to do so through Foxtel, with the shows no longer available for purchase via ITunes or other sites until the last episode has aired.

No wonder, then, that piracy is so rife in Australia. Purchasing content legally is far less convenient than downloading illegally over the internet. Moreover, the cost of copyrighted content is far more expensive than elsewhere. For example, a parliamentary report, At what cost? published in July 2013, found that, on average, eBooks are 16% more expensive, music costs 52% more, and games are 82% more expensive in Australia. Moreover, while US consumers pay $8 per month for streaming services like Netflix, Australians are required to pay $50 or more for a sub-standard Foxtel service. Indeed, its the extreme geo-blocking and protection that surrounds much international content distributed through Australian cable television that is driving consumers to seek alternative sources, albeit illegally.

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The key, therefore, to reducing piracy is to free-up the market for content, so that purchasing it legally is as convenient as illegally downloading from the internet. This requires an end to exclusive deals and the ability to purchase content in a variety of formats from a variety of locations, as well as making it legal to convert files as one sees fit for private use.

Finally, Brandis’ proposal to require ISPs to effectively police copyright – “secondary liability” – is a retrograde step and could raise internet costs for all users. The proposal would effectively remove the burden of enforcement from the digital creators and the courts to ISPs, many of whom aren’t equipped to interpret copyright law, adjudicate on the facts, and impose appropriate penalties.

Overall, the Government’s stance on copyright shows that Australia hasn’t moved on much from the days of the VCR, when it was illegal to to use them to record television programs. And as long as such an inflexible approach is taken, consumers will continue to embrace alternatives and download content illegally over the internet.

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As an aside, it is also somewhat perverse that anybody who purchases a DVD legitimately is forced to endure a conga line of annoying adds against piracy, whereas those who download illegally are spared this annoyance. In effect, those “doing the right thing” are being treated as potential criminals and subject to re-education, whereas those breaking the law are getting away Scott free. Such is life in fortress Australia!

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About the author
Leith van Onselen is Chief Economist at the MB Fund and MB Super. He is also a co-founder of MacroBusiness. Leith has previously worked at the Australian Treasury, Victorian Treasury and Goldman Sachs.