Australia’s Internet Filter – Ineffective and Unopposed

Words by: Trilokesh Chanmugam

China and Australia only have a few things in common. An obsession with pirating American media is one of them; and in both countries, this is motivated by the absence of any legal alternatives which are also affordable. Now, as Australia makes preparations for a confident first step onto the slippery slope of internet filtering, the two countries will find that they have one more thing in common: an outlandishly regressive approach to solving intellectual property issues.

This will come in the form of the Copyright Amendment (Online Infringement) Bill 2015; a piece of legislation which is also referred to as the ‘anti-piracy crackdown’, or ‘the website-blocking bill’ depending on your political orientation. The following description is taken from the explanatory memorandum of the proposed legislation:

“The Bill amends the Copyright Act 1968 (the Act) to enable the owner of a copyright to apply to the Federal Court of Australia for an order requiring a Carriage Service Provider (CSP) to block access to an online location that has the primary purpose of infringing copyright or facilitating the infringement of copyright.”

The bill is set to be debated in parliament on the 18th of June, but a senate committee has reported bi-partisan support, and it’s looking like the bill will be passed without opposition.

As usual, Scott Ludlam is one of the few contrarians in parliament. His dissenting report draws attention to the problem of internet censorship, as well as the likely outcome that the bill will not meet its aims. It’s a convincing document, but it fights an uphill battle.

Here’s a quick rundown of the legislation:

The purpose of the bill is to reduce online copyright infringement (piracy). The proposed method for going about this is to provide copyright owners (the entertainment companies) with a means of directly disrupting online infringement (blocking websites). Copyright owners will be able to approach the federal court of Australia with a claim which, if successful, provides internet service providers with an injunction to block ‘online locations’ that have the ‘primary purpose’ of infringing copyright.

Basically, all of your favourite torrent and streaming websites will soon be blocked, and Rupert Murdoch will celebrate by cackling maniacally in some dimly lit castle that he undoubtedly owns.

To be fair though, there are a number of limiting factors. The federal court must take into account the following before approving a claim: the flagrancy of the infringement; whether it is in the public interest to disable access; whether disabling access to the online location is a proportionate response; and whether any person is likely to be affected by a granted injunction.

Nonetheless, the legislation has some serious shortfalls. The Greens party dissenting report draws attention to these, and they can broadly be grouped into three categories: a failure to address the underlying causes of piracy in Australia, a threat to online freedom and privacy, and a weight of evidence which suggests that internet filtering simply does not work.

Concerns have also been raised that the regime will capture legitimate technologies, like virtual private networks (VPNs). VPNs have been used by an estimated 340,000 Australians to access paid subscriptions to overseas services, which is a legitimate alternative to internet piracy. However, accessing media which is blocked in your region of the world can still be considered a copyright infringement, so there is a risk that blocking access to VPNs will entrench factors that drive Australian piracy in the first place.

“To steal a book is an elegant offense,” Tom Doctoroff tells Forbes in an interview about copyright infringement in the Asia Pacific region. “It’s recovering wisdom. Especially if you were not supposed to read the book in the first place.”

Tom Doctoroff is the CEO of J. Walter Thompson Asia Pacific, and an advertising professional who specializes in Chinese consumer psychology. In the article, entitled ‘In China, Why Piracy Is Here To Stay,’ Kenneth Rapoza suggests that intellectual property does not have the same level of cultural significance in China that it does in the western world. This has become manifest in the imitation brands and cheap knock-offs that are ubiquitous in China, as well as the rest of the world. Chinese do not think twice about pirating media or appropriating trademarks, because it’s believed that the societal benefits of providing cheap goods and services outweigh the personal benefits of financially compensating an individual for their creative pursuits.

This is a simplification of a complex cultural phenomenon, but it goes a long way in explaining the existence of a notoriously vast market for pirated movies and TV shows, which flies in the face of a highly regulated online environment. China’s approach to regulating the internet is often referred to as ‘the Great Firewall of China,’ and it supposedly protects the moral integrity of Chinese residents by filtering a wide range of content; pornographic material, pro-democracy keywords, wikipedia, youtube, and a number of websites which facilitate copyright infringement.

China is a reigning champion of internet censorship. They have been experts in the field since the mid ‘90s, but they’ve been incapable of curbing internet piracy in China using this method.

Meanwhile, Australia hopes to tackle the same problem using a similar approach – by restricting access. This method hasn’t worked under the authoritarian gaze of the Chinese Communist Party, yet Australia’s politicians believe that Australia can do better whilst retaining an ideological commitment to democratic liberalism.

China’s firewall is one constructed by a dictatorial communist party eager to protect national interests; Australia’s soon-to-be internet filter will be built by market forces. If a local entertainment giant finds that they can raise revenue by getting a website blocked, and if they find that the projected revenue increase will outweigh legal costs, they will approach the federal court with their claim and the website will very likely be blocked.

It’s worth clarifying that the purpose behind this Australia/China comparison is not to instill fear in the mind of the Australian libertarian; instead, it calls for rethinking our approach to copyright ownership, and draws attention to the ineffectiveness of internet filtering as a tool for protecting copyright.

Internet filtering has been likened to a “game of whack-a-mole,” with new sources of pirated material popping up faster than the filter, which requires lengthy legal proceedings, can block them. It’s an exercise in futility, with the only direct benefit being more job opportunities for lawyers.

Australian culture is not characterized by disregard for intellectual property in the same way that Chinese culture is. We are much more aligned with American individualism, which rewards personal innovation and creativity, than we are with Chinese communitarianism, which emphasizes societal growth through idea sharing. However, we do share a common frustration with the stranglehold that big businesses have on copyright ownership.

It’s often thought that piracy robs TV producers of an honest income. This may be true for small-time producers, but it’s not the case for most subscription based TV providers such as HBO.

“We’ve been dealing with this [piracy] for 20, 30 years,” Time Warner CEO Jeff Bewkes has said. “Our experience is that it leads to more paying subs.”

Piracy creates hype, which in turn leads to more subscriptions, but only if they are available and reasonably priced; which they’re not in Australia or China. The only people that really suffer from piracy are the peddlers of an inefficient and outdated model of consuming television: cable TV providers (Foxtel), and to a lesser extent, cinema chains and DVD stores.

So what’s the alternative solution to the piracy epidemic? Addressing the lack of availability and the lack of affordability for legal alternatives should be the priority, not throwing red tape around. Netflix Australia was a step in the right direction, but proposing to tax it was a step backward. Improving internet speeds through a National Broadband Network was also a good step, but the watered down alternative that is actually being implemented by the LNP is only testament to their unparalleled cost-cutting ability.

2015 has been a bad year for internet freedom, with the metadata retention scheme passing without opposition. Now the anti-piracy crackdown, with labor’s support, is also on track for royal assent. CHOICE, an Australian consumer advocacy group, has launched a campaign which targets Labor MP’s, asking for their support in protecting digital freedoms. You can help too. If you are concerned about the successful passage of this bill through parliament, follow this link, and click ‘send’ to let your local member know that you want them to vote ‘no’ on the internet filter.