Experts have advised ISPs to step up and work with the content industry to find a copyright solution in order to avoid a heavy-handed government approach, following iiNet's win over AFACT in the High Court of Australia today.
Despite calls from the Australian Federation Against Copyright Theft (AFACT) for the government to step in on copyright issues following the case it lost to iiNet in the High Court of Australia, analysts have said this is unnecessary.
Telsyte director of research consulting, Chris Coughlan, said the outcome of the case had come as no surprise to industry, but ISPs would need to work with the content providers to tackle copyright issues in the future.
“I think they need to work constructively to try and limit this sort of activity, which is hard, especially when you’ve got proxy servers in other countries, and things like layer three encryption and so on,” he said. “There are various ways to facilitate [content sharing] without even coming onto the radar so it’s difficult to close it down altogether.
“I think there are ways and means, though, of protecting their rights to a large degree but I don’t think you’ll ever close down this sort of content sharing.”
He said at this stage, the film industry can pursue the end users but they can’t “wrap it up and chase the middle man” as they have unsuccessfully tried to do.
According to Coughlan, working with the content providers on the issue should also be in the best interest of ISPs as they increasingly provide content sharing services to customers.
“If they want to have the rights to legally transmit and provide content services then they’re going to have to start working with content partners.
“At the end of the day, if these sorts of pirate services are limited it’ll basically create markets with legitimate services that all the ISPs have to get into."
Commenting on the topic, Buddecom director, Paul Budde, said the outcome was a real win for the telco industry and ensured ISPs would not be held accountable for the illegal activity conducted by end users.
“Hopefully it forces the entertainment industry to sit down with the ISPs to work out a solution because the industry is very much aware that they have to work together, despite Hollywood studios being of the opinion that they don’t have to negotiate,” Budde said.
Budde said copyright laws in Australia are centuries old and were not written to deal with the many new methods of communication that now exist.
“Copyright laws will have to take into account changes that are happening currently, you can’t just stop the whole industry because of copyright laws that date back that far," he said.
“I hope that the industry can come up with some ideas and suggestions themselves rather than bringing in the heavy handed approach from government. But eventually, if indeed the industry is not going to cooperate and is not going to come up with solutions, [then] unfortunately this will be the only option.”
Australian legal expert and College of Law associate professor at the Australian National University (ANU), Dr Matthew Rimmer, was at the judgement in Canberra and agreed there needed to be industry consultation on copyright in addition to legislative change.
“My immediate response is that it’s very important that the government doesn’t engage in hasty, adhoc, restless legislative responses to this particular decision,” he said.
Rimmer said that while the iiNet case touched on many important aspects of copyright — such as authorisation, the contractual and technical power of iiNet and the ethics of the warning notices that were sent — it did not touch on the Safe Harbour scheme.
The Scheme was introduced into the Copyright Amendment Act 2006 for internet service providers to cooperate with copyright owners in deterring infringement of copyright.
“The case deals with a very traditional battle in the sense that it’s a battle between copyright owners and internet service providers. It does talk about principals in relation to authorisation but it doesn’t necessarily deal with the galaxy of internet services available these days,” he said.
“The incentive for ISPs and other intermediaries in terms of working out an industry solution is to avoid something draconian and there are mutual interests involved in terms of this particular issue.
“There’s no quick fix or easy answer to resolving the age old tensions over copyright law.”
The Australian Law Reform Commission (ALRC) has begun a review into the use of copyright in a digital context, which will examine whether the exceptions in the Copyright Act 1968, which was amended in 2006, are adequate and appropriate in the digital environment.
"The [ALRC] inquiry will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment. Currently, the Copyright Act has general exceptions to the rules regarding infringement of copyright … in a fast changing, technologically-driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved,” former Attorney-General Robert McLelland said in 2011.
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