Nothing about the internet changes the fact that the owner of the copyright in a book, movie or music is the only party that has the right to exploit that material. They can offer an end user a license to access the material for a fee, they can give an end user the right to download and play a movie for their personal use, or they can license a movie chain to play that movie in the cinema. Those rights belong to the owner of the copyright and no-one else has the right to use or access the material unless they have the permission (and paid the fee if required) of the rights holder.
Bit torrent and other file-sharing methods have sought to ‘get around’ these copyright restrictions but, legal technicalities aside, piracy remains a fundamental breach of accepted laws that protect intellectual property rights.
Prevalence of online piracy
Online piracy and downloading of copyright material is a significant issue in Australia. Recent studies have shown that it remains a wide spread practice. Research conducted by the Australian Government showed that 43% of content consumers had consumed some illegal content in the period surveyed. The leading motives for infringement were that it is free (55%), convenient (51%) and quick (45%).
Of the 2630 people interviewed, the percentage of respondents who admitted consuming pirated content in the last three months, 48% had illegally downloaded movies, 37% had downloaded music, 33% TV programs and 22% video games.
The industry and government are working towards a solution that better protects the legitimate rights owners of the copyright in these products. Recent amendments to the Copyright Act 1968 (Cth) enable the blocking of infringing overseas websites. These complement the Copyright Notice Scheme Industry Code that is currently being developed by both rights holders and internet service providers as part of the solution.
A further version of the Copyright Notice Scheme Code (the Code) was submitted for registration to the Australian Communications and Media Authority (ACMA) on 8 April 2015 but agreement has not yet been reached on all issues – particularly in relation to who is to pay for it’s implementation.
What is the Code?
To address the issues, the interested parties have agreed to create and enforce an industry code. Under the Code, residential fixed line internet consumers who have allegedly infringed copyright will receive an escalating series of infringement notices. If they receive three notices within 12 months and a copyright holder applies to the court for preliminary discovery seeking to find out identity and contact details from an ISP, the ISP will need to act reasonably to assist the copyright holder’s application. However, the decision whether to grant preliminary discovery will still be made by the court.
If it is registered, the notice scheme was intended to commence on 1 September 2015 but the appointment of an independent assessor to help resolve the outstanding issues about costs is now likely to delay its implementation.
Blocking injunctions
Relevantly, the Federal government’s anti-piracy bill (the Copyright Amendment (Online Infringement) Bill 2015) passed into law late in June. That law now enables rights holders to seek injunctions requiring ISPs to block access to overseas websites where the rights holder can prove that the ‘primary purpose’ of the website is to infringe copyright.