EuroISPA Consultation on Online copyright infringement in Australia

EuroISPA is the pan European association of European Internet Services Providers Associations, representing over 2300 companies. We are recognized as the voice of the European ISP industry and are the largest umbrella association of Internet Service Providers in the world.

EuroISPA is following with concern the developments regarding the online enforcement of copyright in Australia.

While our members condemn digital piracy, they also consider that the focus of any initiative aimed at protecting copyright should be directed towards encouraging the creation of innovative, affordable content services, based on business models which are able to embrace the Internet revolution. This is a much more effective strategy than increasingly repressive legislation which will inevitably produce the opposite result and will only serve to maintain barriers to trade.

In 2013 the European Commission published a study[1] showing how “Internet users do not view illegal downloading as a substitute to legal digital music” and that “digital music piracy does not displace legal music purchases in digital format”. In addition, the study outlined a “positive effect of online streaming on music consumption channels” while pointing out that “illegal music downloads have little or no effect on legal digital sales”.

Hence, the political answer should not be in another set of measures to enforce copyright online, but on how to make copyright work in the digital environment. Technology enables rightsholders to create more and better services based on business models adapted to the digital age, so that consumers have the option of downloading lawfully, in the safest, most user-friendly format possible.

As World Intellectual Property Organisation (WIPO) Director General, Francis Gurry, stressed:

“any future copyright policy would have to strike a balance between the availability of cultural works to consumers at affordable prices while assuring a dignified economic existence for creators and performers. […] rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it” […] “there is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish”.[2]

It is clear that any extension of the authorisation liability in the Australian framework is going to impact negatively on the role and business of ISPs without evidence that it could help binding digital piracy.

EuroISPA also believes that voluntary agreements between Internet intermediaries and rightsholders for the enforcement of copyright risk not being an appropriate instrument to address digital piracy. Voluntary agreements undeniably shift the enforcement power from courts to Internet intermediaries, depriving alleged infringers and consumers of due process and a fair trial.

EuroISPA suggests the Australian government to follow the example of the European Commission which refrained from legislative revision of the copyright enforcement framework and proposed instead non-legislative actions[3] such as:

1. launch and monitor a new generation of targeted communication campaigns, especially targeting young people, on the economic harm caused by commercial scale IP infringements;
2. facilitate the development of voluntary solutions to  reduce  the profits  of commercial scale  IP  infringements  in  the online environment (so-called Follow the Money approach);
3. assist SMEs to enforce their IP rights;
4. develop training and cooperation between competent authorities;
5. explore the impact of chargeback and related schemes to tackle commercial scale IP infringements;
6. And analyse trends in IP and in IP-infringing activities.