Q&A: Professor Melissa de Zwart on the forthcoming anti-piracy code

The Australian music industry’s championing of a Government reform to help curb digital piracy will be noted in the upcoming announcement of the new Copyright Amendment (Online Infringement) Bill.

The Communications Alliance’s draft code for the new legislation, released last month, proposes a Graduated Response (three-strikes) Scheme using codes imposed in the US, UK and New Zealand as a basis and heralding ISP-level blocking of "overseas pirate sites". The Bill was cleared yesterday however public comment will remain open until March 22. Following this, the code will be submitted for registration with industry regulator Australian Communications and Media Authority (ACMA).

Following the draft code’s release, the Australian Copyright Council commissioned a report titled ‘Australian Creators And Online Intermediary Liability’. The 53-page report was prepared by Adelaide University Professor Melissa de Zwart and researcher Beatrix van Dissel and outlined their recommendations for the code as a result of their discussions with Australian content creators, from across a range of creative industries, including the music industry.

TMN chats to de Zwart about why the proposed Graduated Response Scheme would be most effective and fair to music industry content creators, and why even the drastic measure of slowing infringers’ internet speeds is necessary.

Evidence from around the world ranges from Three Strikes being effective, to only temporarily effective (in that infringement starts again after the first publicity) to not effective at all. Having gone through all the evidence, what is your stance on this, why will a Three Strikes policy work?

What we did in the report was literally go through a range of examples of three-strikes models and there are very different models across different jurisdictions. The suggestion would be to take the best elements of these various three-strike programs and implement that in Australia.

The question is not necessarily why will it work because when we mean ‘work’ do we mean that it will reduce infringement or that it will remove infringement entirely? It’s probably fair to say that there is no scheme of any kind that would remove 100% of infringing behavior. The benefit of the three-strikes model is that it gives people an opportunity to understand what they are doing and to modify their behaviour. It also provides scope to transition from a model where people think it’s okay to infringe content, to recognising why it’s a problem

Evidence from the UK (BBC in 2003, Guardian UK in 2005 and the IFPI in 2013) is that those who infringe copyright actually grow the market — 31% go on to buy singles online, 37% buy music online, and 100% pay for music subscription services. If that is the case, should the content owners take such a strong stance against them?

You’ve got all of these various studies that produce evidence about the fact that people who download are also the people who buy the content. That is certainly true in a large number of instances, but if you speak to the people that we did, who are actually involved in producing music, what they’re saying is that it’s not across the board. Different genres of music will be affected in a different way; you’ll have some areas where the downloads has increased their market but there are other genres where that translation hasn’t occurred. There is also a difference according to the point the artist is in their career; if they’re just starting out they may be happy to make their content available for free, but of course that can’t continue indefinitely either.

Also what we were hearing from artists in particular is that they’re happy to move to a digital distribution model but the models that exist don’t translate into the equivalent of say being an album sale or even single sales. Because of the streaming options that are available, the money is not necessarily even going through to the artists anyway. So if people want to rationalise [infringement] and say ‘well I’m not depriving the artist of any money’, in fact they are.

Does it make business sense for the ISPs to harass and annoy their own customers?

I like this question. I don’t see it as a means of harassing and annoying their customers. They are in a contractual agreement with their customers; they’re used to communicating with their customers, this should really be in the nature of an ongoing discussion about the customer’s use. I mean, if the customer is not doing any illegal downloading then there won’t be any need for communication – and all these things are possible under the terms of service.

I think it’s fair to say that the ISP market is fairly mature now, we’re not in a situation where we’re going to have to encourage ISPs to enter the market, but they should be conducting their business in a responsible manner and it’s up to them to maintain a professional level of communication with their customers.

That’s the conversation though, customers may keep changing ISPs if they want to continue illegal activity.

They are worried about churn, they are worried about people going off elsewhere. But again, that’s one of the things they have to deal with; if people are engaged in illegal conduct then they are the mechanism through which that’s occurring so it’s [the ISPs’] interest to make sure that people are complying with that.

Lack of immediate access to overseas content is regularly cited as why Australians turn to illegal downloads. Have you seen that content owners are trying to solve this problem with rush-releases? Is there more work they can do to rectify the problem?

That’s a really big issue and of course you hear that anecdotally everywhere you go. What I heard directly from the people in the music industry is that the artists, the performers, the producers, are keen and willing to explore new forms of digital distribution.

I heard about a range of new models of digital distribution for music that people are going to make available including free content, online concerts, online hangouts, those sorts of things. I think it’s possibly less of an issue for music than for TV.

My understanding is that the market is making the content owners more responsive. We’re hearing about different models that are coming out from Foxtel and the free-to-air channels. It’s important that content is made available quickly and in a cost-effective manner. I think that that’s still a work in progress.

Searches for the term 'VPN' surged following the announcement of the code's proposal, there are other ways to access blocked sites too (websites moving like The Pirate Bay). Can you discuss the type of education that infringers will receive using the Graduated Response Scheme?

I think there’s a great deal of consumer misunderstanding about copyright. I think there has been a lot of very effective anti-copyright rhetoric and I think a lot of people feel that accessing and downloading content for free really doesn’t hurt anyone other than a faceless, nameless movie studio in Hollywood who can afford to take the hit anyway. I think they don’t generally stop to think about the impact it has on Australian content creators and I don’t think they think about the fact that if these people don’t get paid for the work that they do, then they’re going to have to stop doing it, whether they love it or not. I think it’s really unfair when people say ‘well artists create for the love it.’ Of course they do, but they also deserve to be paid for their work and deserve to be able to feed their kids like everybody else. I don’t think that message has been very well understood particularly because the anti-copyright lobby has been very successful. Part of the education would be to focus on that.

I also don’t think many people know that the things are pirated the most often are things that are the most expensive or the most expensive or difficult to produce. Game of Thrones is the one that’s bandied around all the time, well that cost a fortune. There’s also a lot of misunderstanding about the fact that people in the digital environment should be able to make money by other mechanisms, by saying ‘you your music up on the web for free but you can sell the [merchandise]’. Of course, that doesn’t translate for everything […] education is very important in getting that message across. I think there’s still a lot of people who think that because it’s on the internet, it’s free.

Regarding the notices that will be sent out to people that infringe copyright, will they include stats and figures, anecdotes from content creators, will they be personalised? What would you push to be included?

I think it would be worthwhile including information about what the nature of the content is and what has gone into making that content possible. [It needs to be made clear] that these aren’t just big Hollywood movie execs, there are people who really have to work hard to make a living.

A lot of that will be in the hands of the ISPs. At the stage at which the letter is sent it will be really up to the ISP to craft that as they see fit.

One of your suggestions outlines the need to disallow any private arrangement schemes for piracy between ISPs and labels. Why?

The problem that we identified with that is that it would be far more effective if it was industry-wide. If one ISP agrees to implement a code of conduct but the other five don’t, then the impact is going to be lessened. It’s probably not so much that I have any problem with private arrangements per se, it’s the question of making the law that this is a clear message and applies across the board.

Does Australia currently have any private arrangement schemes for piracy between ISPs and labels?

I know that they have been discussed in the past although I’m not aware of any.

Reducing the user’s internet speed and/or redirecting users to a landing page has been a much talked-about penalty for infringement, why do you think it's necessary?

Most of the creators I spoke to, they know that these people are their fans or their customers. They don’t really want to go down any path of anything draconian or anything which involves punishment. I think that really people are far more concerned to link this clearly to an understanding that downloading is – except in certain circumstances where there’s fair-dealing etc – infringing the copyright of the owner of the copyright and that the owner of the copyright like any property owner has some rights in order to be able to determine how their material will be used and accessed. I think that is simply not something that people understand.