Piracy: are we being conned?Music piracy war: are the labels wasting their time?Ruling may force ISPs to cut off pirates
The music industry has backflipped on its long-held demands that repeat music pirates be disconnected from the internet as a new UN report declares such a policy would be a breach of human rights and international law.
But film studios, represented by the Australian Federation Against Copyright Theft (AFACT), are still backing the controversial measures, arguing protection of intellectual property is a human right. It has released research saying film piracy costs the Australian economy $1.37 billion a year.
The music and film industries have long pushed ISPs and governments in Australia and around the world to implement a "graduated response" or "three strikes" scheme that would see people accused of repeatedly infringing copyright subjected to penalties including warning notices and eventually, disconnection. This process would take place without any involvement from the courts.
The film studios sued Australian ISP iiNet in a test case designed to force ISPs to implement such a scheme but failed. However, the case is still subject to appeals. The government has so far resisted stepping in with legislation for a three strikes scheme, saying it would prefer the industry and the ISPs to negotiate a solution.
Those negotiations are ongoing but the UN report, which concludes that internet access is a human right, will most likely swing the advantage back in the direction of ISPs, said copyright law expert and senior lecturer at the University of Queensland, Kimberlee Weatherall.
"This should be a wake-up call to government, reminding the government of its responsibility to protect freedom of expression and prevent private sector actions that significantly threaten that freedom," said Weatherall.
The UN report found graduated response schemes may violate the International Covenant on Civil and Political Rights and such schemes should be repealed in countries that have already adopted them. New Zealand, Britain and France have legislated for three strikes, causing significant outrage among consumer groups, ISPs and academics.
The report was prepared by the UN's Special Repporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue.
"The Special Rapporteur considers cutting off users from internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights," the report reads.
Weatherall agreed with the UN report, saying termination of internet access was a "disproportionate response to IP infringement".
Sabiene Heindl, general manager of the music industry's anti-piracy arm, Music Industry Piracy Investigations, today said there needed to be "mitigation measures" for those engaged in repeated illegal file sharing but "such measures would not include termination of internet accounts".
Heindl was also speaking on behalf of the Australian Content Industry Group (ACIG), which includes MIPI and the book, computer software and video games industries.
This is a significant change in position for the industry. MIPI, and its counterpart with the film studios, AFACT, have long pushed for termination of accounts of repeat infringers and were strong supporters of "safe harbour" provisions in the 2005 US free trade agreement which stipulate that ISPs are liable to be sued for damages if they do not.
Peter Coroneos, chief executive of the Internet Industry Association, confirmed that the film and movie studios had previously pushed ISPs for disconnection of accounts to be included as one of the remedies of a three strikes/graduated response scheme.
"We note there has been somewhat of a change in sentiment in the industry," Coroneos said in a phone interview.
"I believe that the option of disconnecting families from the internet is both flawed on a policy level and also a politically toxic proposal."
Asked to comment on this backdown Heindl said that while it did not think termination was a necessary part of a negotiated agreement with ISPs this "doesn't preclude termination remaining within the current safe harbour regime which deals with copyright infringement more broadly".
An internet industry source said MIPI and ACIG appeared to be distancing themselves from the position held by AFACT after realising that it was too extreme.
"Politically no politician is going to go out and start talking about disconnecting families from the internet so I think they've actually read the political environment quite accurately and therefore they're backing away from that," the source said.
"They realise they're not going to be able to negotiate anything reasonably with ISPs while termination of customers is on the table."
In response, AFACT said that the UN report had not been officially endorsed or adopted by the UN and its recommendations did not bind UN member states.
"The film community do not agree that a graduated response scheme is a breach of human rights," an AFACT spokeswoman said.
The spokeswoman referenced a recent Wiggins survey which found 62 per cent of respondents agreed that it was right to suspend the internet conections of persistent online copyright infringers.
AFACT also pointed to a recent court case in Britain where ISPs challenged British graduated response laws.
"Justice Parker found that copyright is a fundamental property right which must be balanced with other fundamental rights, such as freedom of expression," the AFACT spokeswoman said.
Colin Jacobs, chairman of the online users' lobby group Electronic Frontiers Australia, said cutting somebody off from the internet was an "enormous penalty" and a breach of human rights.
"It diminishes or even removes a person's ability to communicate with the world and partake in civil society," he said, adding that only courts could decide whether someone had broke the law.
"To any government considering a 'three strikes' law, I would ask - whose side are you on? These laws are designed to penalise the citizens who voted for you at the behest of a handful of foreign companies. Shouldn't your own constituents be given the benefit of the doubt rather than have their rights stripped away?"
Nick O'Byrne, general manager of the Australian Independent Record Labels Association, questioned how being cut off by a service provider as a result of a breach of terms and conditions could actually constitute a breach of human rights in a developed nation like Australia.
"If you don't pay your usage bill they'll still cut you off, if you are consistently and flagrantly infringing copyright they may do the same," he said.
Negotiations between ISPs and content owners on an acceptable way to reduce internet piracy continue.
Coroneos said ISPs would always be uncomfortable with any solution that resulted in their customers being disconnected from the internet or having their connection speeds throttled.
"It's one thing if a court determines that you have been engaged in illegal downloading ... and you've had the chance to defend yourself and legal process has run its course. It's another thing for me to allege that you're doing that and have the ISP punish you based on my untested allegation," said Coroneos.
Coroneos's view was backed up by the UN report which said that ISPs should only be forced to take action "through an order issued by a court or a competent body which is independent of any political, commercial or other unwarranted influences".
The Australian Recording Industry Association said it was optimistic that a workable industry-led solution could be found "which encourages good consumer behaviour and ensures artists are fairly compensated for their hard work".
The Communications Minister, Stephen Conroy, and his opposition counterpart, Malcolm Turnbull, did not respond to requests for comment on the matter.
This reporter is on Twitter: @ashermoses