Music Rights Australia calls for online reforms to protect musicians

Creative rights protection online has once again become a hot topic for discussion with the recent keynote delivered by Attorney General George Brandis. In light of his comments and today’s biennial Copyright Law & Practice Symposium taking place at the Australian Copyright Council, we asked Music Rights Australia General Manager Vanessa Hutley to put forward the arguments explaining how updated legislation would work in favour of creators and rights-owners. 

Due to the limited terms of reference of the recently concluded ALRC inquiry into Copyright and the Digital Economy, it has all been about exceptions up until now, because the ALRC was not able to consider the important related topic of online rights protection.

That has meant the discussion was lopsided and the important issue of how creators can manage and protect their creative output online has been neglected.

The Attorney General referred to the introduction of third party injunctions, secondary liability and safe harbour provisions as possible areas of reform.

Music Rights Australia supports the call for reform in those areas and believes these two reforms will help to improve the rights protection landscape and create an internet which works for all; creators, ISPs and consumers.

Music Rights Australia believes that the Copyright Act should contain a right for copyright owners to be able to apply to get a court order to disrupt access to those sites which stream or download illegal content and which do not support the legitimate market. All of these sites are funded by advertising and nothing goes back to the creative industries.

Nothing goes back to the musicians. But these sites do make a lot of money for the operators. A recent study titled Good Money Gone Bad: Digital Thieves and the Hijacking of the Online Ad Business by the Digital Citizens Alliance, found that the top 30 sites in the US which stream illegal content or downloaded illegal content made on average USD4. 4millon each per year and in total, the top thirty illegal sites made $USD227million.

Music Rights Australia looked at the top five illegal sites identified in that study and searched for Australian artists that have recently had a #1 Album on the ARIA Albums Chart, finding not only the individual albums of those artists, but often their entire back catalogue was available on these sites.

See graph below:

There are currently no effective processes for the owners of these recordings to have them removed from those sites. Nor can they prevent the sites from streaming or downloading the work into Australia.

This music is available across more than 30 licensed online music services in Australia at a range of price points via download or streaming. All of these licensed sites reward the creators and those who invest in them, unfortunately however they are not currently competing on a level playing field.

The ARIA wholesale figures for 2013 showed a drop of over 11% in sales. There is no doubt that this drop was in part brought about by the unchecked and unauthorised use of music online. Reform is needed to give musicians and those who invest in them the right to have their artistic output protected and respected online.

Musicians and those who invest in them should have the right to go to court and argue their case to get a court order to block these sites. These sites exploit their creative output.

This is not about blocking or stopping creative expression, or stopping freedom of speech, or breaking the internet. This is about stopping those who seek to exploit the creative output of artists and who fail to pay them a cent.

These types of orders are currently being made across Europe and the UK and the internet has not been broken. More importantly, artists have been given the tools to have their works respected online.

Music Rights Australia also supports amendments to the sections of the Copyright Act which deal with secondary liability and safe harbours. Music Rights Australia supports amendments which will make the sections function as they were intended to function, so that ISPs will have to act reasonably to prevent their networks being used to access unauthorised content if they wish to have protection from liability under the safe harbour provisions.

The sections were intended to work in concert but currently they do not.  Section 101 must be amended to bring the two elements of obligation and benefit back into balance.

Music Rights Australia is also working with the online advertising community to address the placement of advertising on illegal sites.  We are currently working on the development of a code of practice which will mean all members of the online advertising eco system have obligations to ensure that brand placements and advertising dollars are not inadvertently funding these illegal sites.

There is no silver bullet and not one of the reforms discussed above will, in isolation, make things perfect.  However, if they are introduced, then the 30 plus local online licensed music services will have a more level playing field on which to compete; creators will have effective and efficient processes to ensure their music is respected and protected online; ISPs will have a clear understanding of what they must do to ensure their networks are not facilitating unauthorised use of music; and consumers will continue to have the music they want where, when and how they want it.

That is an Internet which works for everyone.