Published in The Music Network
The creative industries’ crusade against online piracy is entering a new phase. Only this time, the setting of a key battle-zone is Australia’s Federal Court. And the litigators are the movie studios.
The ongoing trial of Perth-based Internet service provider iiNet is providing a compelling test of Australia’s copyright law in the digital age. The cross-examination last week of the ISP’s chief executive officer Michael Malone soaked-up column inches in the press, but the case has left many questions unanswered. What precisely does the music industry stand to gain from all this? Perhaps not a great deal, explains Marianna Annas, General Manager of Australia’s Music Industry Piracy Investigations (MIPI), who has closely watched the case unfold. TMN caught up with Annas for some clarity on the iiNet case, and some direction on where the piracy fracas is headed.
What’s actually happening in the studios vs iiNet case?
The film industry has taken action against iiNet for authorizing copyright infringement by allowing its customers to engage in illegal file sharing of movies and TV shows on its network. The film studios are seeking declarations that iiNet infringed copyright in particular films, permanent injunctions to stop iiNet infringing the copyright in the films, and orders requiring iiNet to take reasonable steps to disable access to any online locations outside Australia which contain copies of the applicants’ catalogues. They are also seeking damages and costs. It’s a significant piece of litigation under our copyright regime, but it is not intended to achieve and is unlikely achieve the outcomes we would like to see in relation to digital piracy.
Does the music industry stand to win anything from this case?
A positive outcome for the film industry will not necessarily provide a silver bullet with respect to digital piracy. Unfortunately litigation is usually a long and protracted process and iiNet is vigorously defending the case, making appeals through the Federal and High Courts a real possibility. In the meantime, ISPs continue to do nothing in relation to infringing content being distributed through their networks, Also the judgment will only establish liability in respect of nominated copyright infringing material (ie. the films which are the subject of the case) and any injunctions granted will not apply broadly to illegal file sharers. And the proceedings will not necessarily have an educational effect on issues of cyber responsibility which we consider to be important in terms of the future of the music business.
In recent months, we’ve seen a groundswell of industry and legal support abroad for a “graduated response” or “three-strikes” policy for ISPs. Will Australia ever become embrace a “three-strikes” stance?
We have since 2007 proposed that a ‘graduated response’ procedure be implemented under an industry Code of Conduct. Similar laws have been passed in Taiwan and South Korea this year and last month the French Constitutional Council introduced such a system. In Australia we remain committed to the formulation of a Code of Conduct between content owners and ISP, which would sit alongside our copyright legislation, and encourage internet users to use legitimate online music services and would deter repeat infringers with the possibility of account suspension. It would not require ISPs to monitor the conduct or activities of their subscribers, and would not involve any policing or snooping – this aspect has been extensively misconstrued, including within sectors of the music industry. Quite simply, warning notices would be sent to ISPs on the basis if investigations undertaken by organizations such as MIPI and if after a series of warnings a user was to continue their infringement, the ISP would enforce the contract it has with the user and suspend or terminate their service.
I see the controversial mash-up outfit Girl Talk is lined-up to play the Big Day Out 2010 (Girl Talk was the subject of the documentary “RiP: A Remix Manifesto”). What do you make of the act’s message?
My first observation in this temporary role remains my most lasting impression: that without in any way underestimating the damaging effects of illegal downloading, as an industry we are not adequately addressing the issue of unauthorized sampling and remixing. Unauthorized sampling is invariably a commercially-driven exercise, and Girl Talk is a case in point. Samplers and mash-up artists profit unfairly from the unlicensed use of other artists’ work. Consent is not obtained, royalties are not paid and three discrete copyrights are often invoked – the musical work, the sound recording and the recorded performance. To many artists who are sampled in this manner, the issue is simply about giving them the opportunity to hear the sample, and give consent. Most artists will say that being given the chance (and the respect) to hear the sample and give their consent takes precedence over the licence fee, and one artist recently described it as just ‘good sportsmanship’. The act’s message that ‘copyright infringement is cool’ is no more than a euphemism for ‘profiting from stealing is what I do’
ARIA’s first-half figures slight market growth. Is the industry finally getting to grips with piracy?
It’s looking like illegal downloading isn’t particularly fashionable at the moment! As an industry, we’ve done a lot of educational work in the last few years at various levels from educational institutions to government and industry. The government has declared that the interests of content owners and service providers must be balanced in order to promote and develop a vibrant digital economy. And in the last six to 12 months, we’ve seen a growth in digital music services providing compelling and competitive deals and many choices across different types of services are now available – from more traditional services like iTunes and Nokia Music Store to genre based services and labels’ dedicated services such as bandit.fm and getmusic. New business models are being explored with a genuine embellishment of partnering opportunities and what music fans want.
Is the music biz winning the war?
Even though the recent ARIA digital sales figures represent a relatively small increase, they are very encouraging. We need more engagement and galvanization as an industry. We’re often not perceived as being unified on issues such as piracy. It’s unfortunate that inaccurate information is often bandied about, particularly in relation to digital piracy and new business models . Everyone in the music industry without exception, has a responsibility to access the correct information, and if it’s going to be disseminated or relied upon, that it’s done accurately. As far as winning the war goes, I think the music business, particularly locally, has treated the playing field with more dignity that its opponents have and there is clearly a lot to be said for educational strategies which have a long term focus.
[Marianna Annas has since been appointed Manager of ABC Music Publishing.]