by Amy Pettinger, Creative Content Australia, 3/4/2019
The Federal Court should be empowered to urgently issue take-down notices to stop the illegal sharing of events such as live sports and music concerts.
A more effective communications process is needed between rights holders and digital platforms to tackle piracy. And the costs and resources expended by rights holders in finding infringing copyright material and reporting it to the relevant digital platform should be reduced.
These were among the key recommendations made by film and TV bodies and copyright holders to the Australian Competition and Consumer Commission (ACCC) digital platforms inquiry.
There were more than 80 submissions from content platforms, industry bodies, Internet providers, media outlets and consumer groups. The inquiry was instigated by the then Treasurer Scott Morrison in December 2017 to examine the effect that digital search engines, social media platforms and other digital content aggregation platforms have on competition in media and advertising services markets.
In its preliminary report released last year the ACCC said:
“With Google and Facebook transforming the way consumers communicate, access news and view advertising online, it is critical that governments and regulators consider the potential issues created by the concentration of market power and the broader impacts of digital platforms.”
The ACCC proposed that the Australian Communications and Media Authority determine a Mandatory Standard – possibly in the form of a legislative amendment – regarding procedures for digital platforms to quickly and effectively take down copyright-infringing content.
Several key themes emerged from rights holder groups in response to this recommendation:
The ‘root’ cause of the problem must be addressed
A mandatory take-down standard cannot be successful unless digital platforms are incentivised to remove copyright infringing content. Submissions from Foxtel, Australian Film & TV Bodies, News Corp and the Australian Copyright Council called on the ACCC to make legislative amendments to authorisation liability under the Copyright Act 1968.
The Australian Publishers Association said it is wary of a take-down notice system that doesn’t explicitly make digital platforms liable for illegal content and believes that, without a change to the Copyright Act, cases will continue to be ignored due to ambiguous copyright infringement laws.
In its submission the APA cited an example where “Google scanned library books, many still in copyright, to create a digital archive of materials converted from print and made them available without regard to permission from, or remuneration for, publishers or authors”.
Introduce ‘urgent’ and ‘stay-down’ takedown procedures
Submissions from the Australian Copyright Alliance and Free TV Australia questioned the effectiveness of take-down processes for time sensitive content which might include live sporting matches and music events or films which are yet to be released. Without such processes in place, broadcasters and film distributors will not be fully protected against copyright infringement, they said.
Similarly, the Australian Film & TV Bodies suggested that in addition to a standard take-down procedure there should be ‘urgent take-down’ and ‘stay-down’ procedures in the case of time sensitive content to help minimise the damage caused to the rights holders.
‘Stay-down’ could also lessen the burden of enforcement placed on rights holders to continue monitoring every location and URL where the content may reappear, placing more responsibility on Google and Facebook to keep such content off their platforms.
Develop a communication framework between rights holders and digital platforms
Respondents including the Australian Copyright Alliance advocated the appointment of a digital platforms ombudsman as a possible solution to the often frustrating and time-consuming communication channels between platforms and rights holders when attempting to seek effective dispute resolution.
Free TV Australia, which represents Australia’s commercial networks, focused on the ACCC’s need to develop efficient and effective communication processes to tackle piracy. The lobby group believes a clear framework will allow for better cooperation which might incorporate proactive identification of illegal material, clear processes and time frames for removing content as well as procedures for removing users who continue to commit infringements.
Minimise costs imposed on rights holders
Under the current framework, rights holders must be proactive in finding infringing copyright material and reporting it to the relevant digital platform. This process imposes both costs and resources on rights holders which need to be reduced.
The Australian Publishers Association recommends the legislation explicitly hold platforms accountable, thereby lessening the burden on rights holders to spend time and money reporting infringing content. Free TV Australia also touched on costs with a suggestion that the Mandatory Standard require a process of remuneration for rights holders from digital platforms found hosting illegal material.
So, what do the platforms say?
While Google and Facebook recognise the challenges facing publishers in the growth of new online technologies, both digital platforms rejected calls by the ACCC to introduce additional regulatory oversight, which they believe represents a significant departure from the global standard and may compromise the efficiency and innovation of Australia’s creative industries.
But with both platforms facing increased scrutiny in light of the live streaming of the Christchurch massacre, there is a growing appetite from the public, government and publishers for better safeguards and procedures which place more accountability on the platforms.
The ACCC is reviewing all preliminary report submissions before a final report is issued by June 30 2019.