Should the copyright notice scheme to be scrapped?

The anti-piracy scheme was due to come into effect on 1 September

Electronic Frontiers Australia and Choice have called for the copyright notice scheme to be dumped. The scheme, which will take the form of an enforceable code for ISPs, was due to take effect at the start of this month.

When registered with the Australian Communications and Media Authority, the code will implement a system whereby notices will be sent to ISP customers alleged by rights holders to have engaged in online copyright infringement.

It was originally envisaged that the code would take effect on 1 September and a code was submitted to the ACMA earlier this year.

However, missing from the document were some key details about the code's operation and negotiations between telcos, led by industry organisation Communications Alliance, and rights holders are continuing.

The parties have continued working on a number of issues, including the establishment and functioning of the Copyright Information Panel, which will be funded by ISPs and rights holders and oversee the operation of the scheme, and the administration of the industry fund that will help defer the cost to ISPs of the scheme.

A key sticking point in discussions has been the respective financial contribution of ISPs and rights holders to the scheme's operation. Negotiations on cost-sharing are ongoing, with representatives of the parties meeting earlier this week and another meeting scheduled for next week.

"Both sides are still working constructively," said Communications Alliance CEO John Stanton.

Although there is no resolution to the funding issue and the start of the scheme has been delayed, there has not been a breakdown in negotiations, he said.

Along with a move to block access to piracy-related online services, the scheme is a key part of the government push to crack down on copyright infringement.

Although the code has been produced through negotiations between ISPs and rights holders, the process was instigated by the government, which indicated that if agreement couldn't be reached between the two sides it would step in and legislate a scheme.

Electronic Frontiers Australia has called for the scheme to be dumped.

"The current government, which is ostensibly committed to deregulation, must accept the reality that finding a consensus on the cost burden of a copyright notice scheme is simply not possible," EFA executive officer Jon Lawrence said in a statement.

"[The government] must also realise that legislating to impose such a scheme will only add another layer of unnecessary regulation on to Australia's ISP sector, which is already struggling with the government's overly hasty and inadequately prepared data retention legislation," Lawrence said.

"Enough time and money has been wasted on the ISP Copyright Code. It's time for the government to get out of the way and allow the market to evolve."

The EFA pointed to the results of research conducted by iView on behalf of consumer advocacy group Choice.

The results of that survey, released last week, found an increase in the number of Australians who subscribe to pay-per-view services or Netflix-style subscription services (from 46 per cent in a November 2014 survey to 59 per cent), and a decrease in the number who regularly pirate content (from 23 per cent to 17 per cent).

"The fact is the number of people regularly pirating in Australia has dropped by a quarter since Netflix launched," said Choice's campaigns manager, Erin Turner.

Netflix launched in Australia in March.

According to the Choice survey, the main reasons for engaging in piracy were expensive prices (38 per cent), timeliness (32 per cent) and availability (23 per cent). Thirty two per cent of the people surveyed who engaged in copyright infringement downloaded TV shows that they know they can’t buy in Australia, the survey found.

Similarly, research conducted on behalf of the federal government and released earlier this year found that among Australian pirates, cutting the cost of legal content services was the most popularly cited change that would cause them to stop infringing.

That was cited by 39 per cent study participants in the study who had indicated they had consumed content illegally. It was closely followed as a factor in stopping piracy by content availability (38 per cent) and content being released at the same time in Australia as it is elsewhere (36 per cent).

"This proves once again that making content affordable and easily available is the first and most effective tactic to reduce piracy — not a draconian internet filter and notice scheme," Turner said.

The government-commissioned study revealed that pirates believed threats of potential lawsuits and letters from ISPs were likely to change their behaviour.

Among copyright infringers, the potential for a lawsuit was cited by only 23 per cent as something that would be likely stop them from pirating.

Getting a letter from an ISP threatening to suspend Internet access was cited by 21 per cent, getting an ISP letter revealing their account had been used for copyright infringement was cited by 17 per cent, and a threat from the ISP to throttle Internet access was cited by 17 per cent.

"It's time for the content industry to stop ignoring the facts and end the massive waste of time and money pursuing their obsession with a useless internet filter and an education notice scheme," Turner said.

"These policies won't work, because they do not address the reasons people pirate; they just prop up outdated business models. Unlawful downloading comes down to availability, timeliness and affordability."

Laurie Patton, the CEO of Internet Australia, didn't call for the notice scheme to be dumped but agreed that content availability and pricing were key to reducing copyright infringement.

"Internet Australia agrees that the best way to deal with unlawful downloading of content is to eliminate price gouging and make content readily available," Patton said.

"There is ample evidence that price and lack of access are the main reasons why most people download in violation of copyright."