No silver bullet to curb online piracy

Film companies, content distributors, internet service providers and consumer advocates have until the first day of September to make their voices heard on the knotty issue of online piracy, but it’s not difficult to guess what they are going to say.

Judging from their responses to the official launch of the government's discussion paper on the topic, the positions seem pretty clear cut and for the moment it’s unlikely anyone will be willing to concede an inch.

As the discussion paper rightly points out, copyright infringement is a "long standing issue" and "high illegal download rates" are a problem. But is this actually the start of a process that may finally reconcile the needs of all parties, including consumers?

Genuine will or simple spin?

The contents of the discussion paper elicit little hope, but hope we must, and at least Communications Minister Malcolm Turnbull is trying to frame the debate in a more balanced way.

Speaking to ABC Radio, Turnbull said that content owners do have an obligation to make their content available “universally and affordably".

“If I can just say so, there is an obligation on the content owners, if their concerns are to be taken seriously and they are by government, and if governments are to take action to help them prevent piracy, then they've got to play their part -- which is to make their content available universally and affordably,” he said.

The cynics may see this as mere lip service but Turnbull is one of the few voices that have been consistent about the role copyright owners need to play and just what the role of the ISPs is in the process.

The High Court’s decision in 2012 to back iiNet in its case against the Hollywood studios is a key landmark in how things are playing out right now and the thrust from the copyright holders is going to centre on dislodging this anchor. Turnbull welcomed the decision at the time.

One measure which could potentially make an appearance is a graduated response scheme, where the ISP must send three warnings to the consumer for illegal behaviour and then copyright owners are allowed to pursue the pirates in court.

The measure has its critics, who have routinely pointed out its ineffectiveness and the associated cost impost, and will undoubtedly do so once again.

How the Coalition government responds to that argument will be most instructive as to just where its sympathies lie, regardless of Turnbull’s aspirations to make copyright owners do their bit.

Copyright doom and gloom

Leaving the histrionics of Village Roadshow’s chairman Graham Burke to one side, finding a viable distribution and pricing model needs to be on the top of the agenda and at least there’s some acknowledgement of that from Minister Turnbull.

No one, least of all Australian consumers, are denying that online piracy is wrong. The sticking point is limited access channels and prices, and the huffing and puffing from content providers and their predilection for painting apocalyptic visions of the death of the creative industries is an unnecessary distraction. The scale and impact of the problem is well understood and coercing the ISPs to do the bidding of rights holders won’t be easy, if the Communications Alliance’s communique is anything to go by.

Foxtel, often painted as the principal villain in the copyright issue, has shown a willingness to address the issues of availability and accessibility, through its “Express from the US” initiative and its internet-delivered service, Foxtel Play.

However, as a commercial entity its primary imperative is the financial bottom line and that’s unlikely to change to anytime soon. The strategy of exclusive licensing and targeting premium users who are willing to pay for content bundles is a business decision -- and a perfectly valid one at that.

But it inevitably cuts a substantial portion of the Australian market out of the equation and it’s this lower end of the market that’s resorting to alternatives.

Higher prices don’t justify theft of copyrighted material but without addressing the need of this large segment of the Australian population and how we facilitate the disincentives needed must be a key priority.

Without that the discussion paper will serve no purpose, other than perhaps further entrenching the primacy of the rights holders and the continued piracy of content by a disgruntled public.   

Making ISPs unwilling copyright enforcers will not stop the online pirates.

Foxtel is part-owned by News Corp, publisher of Business Spectator.