[LINK] Music industry backs down on piracy
Jan Whitaker
jwhit at janwhitaker.com
Mon Jun 6 16:19:04 AEST 2011
The Age today:
Music and film industries split over pirates
Asher Moses
June 6, 2011 - 12:46PM
[other stories at the site: Piracy: are we being conned?
[Music piracy war: are the labels wasting their time?
[Ruling may force ISPs to cut off pirates]
The music industry has backflipped on its long-held demands that
repeat music pirates be disconnected from the internet as a new UN
report declares such a policy would be a breach of human rights and
international law.
But film studios, represented by the Australian Federation Against
Copyright Theft (AFACT), are still backing the controversial
measures, arguing protection of intellectual property is a human
right. It has released research saying film piracy costs the
Australian economy $1.37 billion a year.
The music and film industries have long pushed ISPs and governments
in Australia and around the world to implement a "graduated response"
or "three strikes" scheme that would see people accused of repeatedly
infringing copyright subjected to penalties including warning notices
and eventually, disconnection. This process would take place without
any involvement from the courts.
The film studios sued Australian ISP iiNet in a test case designed to
force ISPs to implement such a scheme but failed. However, the case
is still subject to appeals. The government has so far resisted
stepping in with legislation for a three strikes scheme, saying it
would prefer the industry and the ISPs to negotiate a solution.
Those negotiations are ongoing but the UN report, which concludes
that internet access is a human right, will most likely swing the
advantage back in the direction of ISPs, said copyright law expert
and senior lecturer at the University of Queensland, Kimberlee Weatherall.
"This should be a wake-up call to government, reminding the
government of its responsibility to protect freedom of expression and
prevent private sector actions that significantly threaten that
freedom," said Weatherall.
The UN report found graduated response schemes may violate the
International Covenant on Civil and Political Rights and such schemes
should be repealed in countries that have already adopted them. New
Zealand, Britain and France have legislated for three strikes,
causing significant outrage among consumer groups, ISPs and academics.
The report was prepared by the UN's Special Repporteur on the
promotion and protection of the right to freedom of opinion and
expression, Frank La Rue.
"The Special Rapporteur considers cutting off users from internet
access, regardless of the justification provided, including on the
grounds of violating intellectual property rights law, to be
disproportionate and thus a violation of article 19, paragraph 3, of
the International Covenant on Civil and Political Rights," the report reads.
Weatherall agreed with the UN report, saying termination of internet
access was a "disproportionate response to IP infringement".
Sabiene Heindl, general manager of the music industry's anti-piracy
arm, Music Industry Piracy Investigations, today said there needed to
be "mitigation measures" for those engaged in repeated illegal file
sharing but "such measures would not include termination of internet accounts".
Heindl was also speaking on behalf of the Australian Content Industry
Group (ACIG), which includes MIPI and the book, computer software and
video games industries.
This is a significant change in position for the industry. MIPI, and
its counterpart with the film studios, AFACT, have long pushed for
termination of accounts of repeat infringers and were strong
supporters of "safe harbour" provisions in the 2005 US free trade
agreement which stipulate that ISPs are liable to be sued for damages
if they do not.
Peter Coroneos, chief executive of the Internet Industry Association,
confirmed that the film and movie studios had previously pushed ISPs
for disconnection of accounts to be included as one of the remedies
of a three strikes/graduated response scheme.
"We note there has been somewhat of a change in sentiment in the
industry," Coroneos said in a phone interview.
"I believe that the option of disconnecting families from the
internet is both flawed on a policy level and also a politically
toxic proposal."
Asked to comment on this backdown Heindl said that while it did not
think termination was a necessary part of a negotiated agreement with
ISPs this "doesn't preclude termination remaining within the current
safe harbour regime which deals with copyright infringement more broadly".
An internet industry source said MIPI and ACIG appeared to be
distancing themselves from the position held by AFACT after realising
that it was too extreme.
"Politically no politician is going to go out and start talking about
disconnecting families from the internet so I think they've actually
read the political environment quite accurately and therefore they're
backing away from that," the source said.
"They realise they're not going to be able to negotiate anything
reasonably with ISPs while termination of customers is on the table."
In response, AFACT said that the UN report had not been officially
endorsed or adopted by the UN and its recommendations did not bind UN
member states.
"The film community do not agree that a graduated response scheme is
a breach of human rights," an AFACT spokeswoman said.
The spokeswoman referenced a recent Wiggins survey which found 62 per
cent of respondents agreed that it was right to suspend the internet
conections of persistent online copyright infringers.
AFACT also pointed to a recent court case in Britain where ISPs
challenged British graduated response laws.
"Justice Parker found that copyright is a fundamental property right
which must be balanced with other fundamental rights, such as freedom
of expression," the AFACT spokeswoman said.
Colin Jacobs, chairman of the online users' lobby group Electronic
Frontiers Australia, said cutting somebody off from the internet was
an "enormous penalty" and a breach of human rights.
"It diminishes or even removes a person's ability to communicate with
the world and partake in civil society," he said, adding that only
courts could decide whether someone had broke the law.
"To any government considering a 'three strikes' law, I would ask -
whose side are you on? These laws are designed to penalise the
citizens who voted for you at the behest of a handful of foreign
companies. Shouldn't your own constituents be given the benefit of
the doubt rather than have their rights stripped away?"
Nick O'Byrne, general manager of the Australian Independent Record
Labels Association, questioned how being cut off by a service
provider as a result of a breach of terms and conditions could
actually constitute a breach of human rights in a developed nation
like Australia.
"If you don't pay your usage bill they'll still cut you off, if you
are consistently and flagrantly infringing copyright they may do the
same," he said.
Negotiations between ISPs and content owners on an acceptable way to
reduce internet piracy continue.
Coroneos said ISPs would always be uncomfortable with any solution
that resulted in their customers being disconnected from the internet
or having their connection speeds throttled.
"It's one thing if a court determines that you have been engaged in
illegal downloading ... and you've had the chance to defend yourself
and legal process has run its course. It's another thing for me to
allege that you're doing that and have the ISP punish you based on my
untested allegation," said Coroneos.
Coroneos's view was backed up by the UN report which said that ISPs
should only be forced to take action "through an order issued by a
court or a competent body which is independent of any political,
commercial or other unwarranted influences".
The Australian Recording Industry Association said it was optimistic
that a workable industry-led solution could be found "which
encourages good consumer behaviour and ensures artists are fairly
compensated for their hard work". [READ: Record industry, NOT
performers; see: Grateful Dead.]
The Communications Minister, Stephen Conroy, and his opposition
counterpart, Malcolm Turnbull, did not respond to requests for
comment on the matter.
This reporter is on Twitter: @ashermoses
This story was found at:
http://www.theage.com.au/technology/technology-news/music-and-film-industries-split-over-pirates-20110606-1fo8q.html
Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com
Our truest response to the irrationality of the world is to paint or
sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer
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