Smacking down online piracy – does New Zealand know best?

By Karl Schaffarczyk, University of Canberra
We know online piracy exists; we know governments want to stop it – but what are the options?
Richard Freudenstein, CEO of Australia’s largest pay-TV provider Foxtel, has joined the chorus of entertainment industry bodies to call on the government and internet service providers (ISPs) to clamp down on online piracy.
During his speech to the 2013 ASTRA conference last week, Freudenstein demanded that a new anti-piracy enforcement regime be delivered before the National Broadband Network (NBN) is rolled out “because with super-fast broadband the floodgates could really open”.
Freudenstein’s belief that Foxtel’s business model would be under threat from the NBN is scarily similar to the recent wailing and teeth gnashing of the music industry: the faster internet speeds the NBN will bring will lead to dramatic increases in the illegal downloading of TV shows.
Peak music industry bodies claimed the NBN would be a “disaster” for copyright infringement in a recent report.
So, what’s to be done?

Kiwi solution: the one we nearly had to have

In Australia, talks have been held in recent years between content owners and ISPs, with the aim of agreeing on a “graduated” copyright warning and enforcement system – that is, a system in which users who breach copyright are sent a series of warning notifications.

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Repeat offenders under this type of system risk punishments such as bandwidth reduction and possible temporary account suspension.
Talks were again held by former attorney-general Robert McClelland during 2011/12, but fell apart after the major ISP iiNet withdrew from the talks, citing concerns that the entertainment industry was only attempting to force ISPs to act as the police to enforce a broken system – one which fails to meet the demands of consumers.
Freudenstein named New Zealand in his speech among a number of nations who have a co-operative enforcement systems between ISPs and content owners.
So what does New Zealand’s co-operative system look like? And could it work here in Australia?

Three strikes

New Zealand operates under a three-strikes system. Introduced in 2011, the requirements of the Copyright (Infringing File Sharing) Amendment Act oblige ISPs to issue infringement notices to internet account holders when content owners (rights holders) allege file-sharing activity by the end users of that ISP.
The scheme is structured as “guilty until proven innocent”. A rights holder’s allegation is considered to be sufficient evidence of infringement, unless the account holder can disprove the claim.
No matter who carried out the infringing behaviour, account holders are held solely responsible for infringements. Issues relating to children using their parents accounts, neighbours stealing Wi-Fi, and small businesses providing internet hotspots have been raised by media and in blogs.
The “strikes” are as follows:
1) The first infringement notice issued by an ISP to an account holder is called a detection notice. That notice must spell out the details of alleged infringement, warn the account holder of the consequences of continued infringing behaviour (such as file-sharing), and explain how the notice may be challenged.
The infringement notices must be sent to the account holder by the same method in which bills are delivered (i.e. online or in posted paper form).
2) If the file-sharing activity continues beyond 28 days from the date of the detection notice, the ISP is then obliged to issue a warning notice. The requirements of this notice are similar to the detection notice, and it must also make reference to earlier notice, and warn of the consequences of continued file-sharing.
3) An enforcement notice is then issued where rights holders allege file-sharing activity has continued beyond a further 28 days. Once the enforcement notice has been issued, the rights holder is provided with a copy of the enforcement notice, but that notice must not contain the name or contact details of the account holder.
The rights holder is then entitled to have the matter heard before the New Zealand Copyright Tribunal.

Silver bullets

Simple answer? New Zealand’s three strikes system has not been the cash cow some may have expected, and not the silver bullet for stopping illegal downloading either.

Iain Tait

Despite the legislative amendments that brought the scheme to life in 2011, the first case was not brought to the Copyright Tribunal until the end of January 2013. Only five file-sharing cases have been heard by the Copyright Tribunal to date, and all bear similar features:

• The applicant, the Recording Industry Association of New Zealand (RIANZ), has claimed thousands from each account holder, that amount being the price of purchasing the music legally multiplied by an estimated 90 possible uploads, in addition to deterrent amounts and reimbursement of fees incurred. In one matter, RIANZ claimed a whopping NZ$3,931.55.
• In each case the Copyright Tribunal awarded the price of purchasing the music legally without any multiplier to account for uploads.

The highest award under this head of damages was NZ$7.17, which was arrived at by using the iTunes rates of NZ$2.39 per song, multiplied by three infringing songs.
This has occurred in three cases: here, here and here.

• The claims for reimbursement of fees paid to the ISPs were in each case reduced in accordance with legislation to contributions of NZ$50, representing approximately two-thirds of the claimed amount. Reimbursement of the NZ$200 tribunal fee was upheld in each case.
• The deterrent fee was considered by the tribunal according to the culpability of each account holder. The tribunal varied between awarding nothing at all and NZ$180 per song.

With the largest amount awarded to RIANZ falling short of NZ$800 – after ISP and tribunal fees are removed that amount falls to around NZ$525 – it is easy to see that the recording industry might feel a little short-changed.
Indeed, in the most recent case, involving infringements that were alleged to have occurred while the account holder was serving in Afghanistan, the tribunal awarded just NZ$255.97.
This resulted in a loss to RIANZ of at least NZ$20 once the ISP and tribunal fees are deducted.
Given the time and effort RIANZ must go to in order to enforce its claims – and the limited resources of tribunals – the tiny returns from their enforcement action make it hard to imagine this system being viable in New Zealand, let alone worth setting up in Australia.
Richard Freudenstein, is this really what you want?
Karl Schaffarczyk does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published at The Conversation. Read the original article.

The NBN will be disastrous for the music industry ... really?

By Karl Schaffarczyk, University of Canberra

The NBN could have disastrous results for the local [music] industry.

At least, that was the view of peak recording industry body the International Federation of the Phonographic Industry (IFPI) and local bodies, the Australian Recording Industry Association (ARIA) and Music Rights Australia, in a recent report.

But why would Australia’s National Broadband Network (NBN) be problematic?

The Age, The Register and other media describe the claims of IFPI and ARIA as “bleating”. The joint claim of the recording industry bodies is that without government and internet service provider (ISP) intervention to curb piracy, the NBN will destroy the music industry.

But this is just business as usual for the content industry. These claims are continuing a long tradition of claiming every technological innovation spells disaster, if not the end, of the industry.

Some 30 years ago the then-Motion Picture Association of America president, Jack Valenti, described the VCR as the movie industry equivalent of the Boston Strangler.

Even high-speed dubbing and blank tapes, digital audio tapes, Napster, Grokster and countless other technologies have been named as threats over the years. Despite these threats, the recording industry is still with us.

The beat goes on

Not only is the recording industry still with us – in Australia, at least, it is doing well. IFPI and ARIA report impressively strong growth (up 40%) in Australian digital music sales, and a small increase in overall revenue.

In an Australian context, the sales data in the graph below clearly shows that while sales of physical recordings are declining (dark green), those losses are being offset by the growth in sales of digital recordings.

The changing nature of music sales, as reported in the IFPI Digital Music Report 2013: Australian Case Study. IFPI

IFPI’s annual Digital Music Report repeatedly advocates for legislative intervention from government to compel ISPs to better enforce copyright.

They want ISPs to become “content gatekeepers” by either preventing consumers using services that permit file-sharing, or implementing enforcement protocols such as the American six strikes Copyright Alert System, which warns (and then reduces the internet speeds for repeat offenders) users who engage in illegal file-sharing on the internet.

Australian lawmakers have so far been reluctant to make this happen, and a major issue in the recent High Court case of Roadshow Films v iiNet was iiNet’s unwillingness to be the gatekeeper for Hollywood.

ARIA is now holding out for the current Law Reform Commission review of copyright and the digital economy to deliver a strong[er] copyright framework.

Human behaviour

Alarmist claims about the NBN tell us more about the music industry and its attitude to consumers than any inherent faults in consumer behaviour.

It is widely accepted that people download music and other content due to the failure of the market to deliver what the consumer wants.

This failure takes the form of insisting that old business models such as selling CDs and tapes in discrete markets be continued – while refusing to embrace the new digital culture.

Granted, the marketplace for legally-downloadable music has developed over the last few years and we now have online music stores and streaming services, but until now the online offerings have been inferior in many ways. Saddled with Digital Rights Management (DRM), small repertoires and high prices, many people had instead resorted to file-sharing services.

The logic in the IFPI report is attractively simple: if people can download songs from the internet using peer-to-peer (P2P) networks, and those people are then given faster internet speeds as provided by the NBN, they will download much more music. More downloads means fewer sales, and fewer sales means disaster for music distributors.

By giving Australia high-speed broadband, Communications Minister Stephen Conroy’s NBN project may pose a threat to the music industry. AAP/Lukas Coch

While there will always be people who prefer to “freeload” and not pay for content, the impact of Apple’s iTunes store has demonstrated that many pirate downloaders will happily convert to paying customers, but that iTunes has a negligible impact for existing content purchasers.

What this shows is that consumers want a simple interface from which they can pay for their music.

The music industry has long insisted on “digital locks” (“DRM”) to prevent the sharing of legally-bought digital music. But technological compatibility and digital rights management have also been a strong deterrent for consumers. Why pay for a song that only works on one or two music players?

It has been shown that DRM-free content – such as songs which are sold without any form of digital lock to prevent file-sharing – actually drives sales.

A grand don’t come for free

Price is another important factor in consumer needs. For decades when buying technology, Australians have been paying higher prices than our overseas counterparts. This applies to online and offline music sales too.

On Apple’s iTunes store, the standard price for one song is US$1.29 for Americans, yet the price for Australians is almost double that, at A$2.19 for the same song.

Timing and geographic segmentation is yet another issue for which the content industry fails to deliver to consumers. This is most obvious in the film industry, where Australians often need to wait months or years in some cases before a released film hits our screens.

The music industry is not immune to this either, and it is still standard practice to release all but the biggest names in music one market at a time.

While it is a long bow to draw to claim that piracy will disappear if content became cheap, DRM-free, easy to buy, and simultaneously released worldwide, it is clear that these are important factors driving online piracy, and fixing these matters will significantly reduce demand for infringing product.

Highway to hell

If the music industry is scared of a piracy-driven disaster occurring because Australians have high-speed broadband, it means they believe the only thing saving their bacon is the lack of bandwidth available in most homes.

It also means that despite being aware of what drives music piracy, the industry intends to continue treating its customers with contempt. Frances Moore, CEO of IFPI, summed up industry attitude to consumers in last year’s Digital Music Report:

The truth is that record companies are building a successful digital music business in spite of the environment in which they operate, not because of it.

The time has come for the music industry to find common ground with consumers, not do business in spite of them.

Karl Schaffarczyk does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published at The Conversation. Read the original article.

Battle royalty: is this the end of online radio streaming?

By Karl Schaffarczyk, University of Canberra

Online streaming of radio broadcasts may be a thing of the past after the Full Federal Court yesterday handed down a ruling that will result in radio stations paying higher royalties to the recording industry.

The Phonographic Performance Company of Australia (PPCA), on behalf of recording artists and music labels, won a declaration that internet simulcasts of radio programs fall outside the definition of a “broadcast” under the Copyright Act and are therefore not covered by existing licences granted to commercial radio networks.

Following on from a failed High Court bid to increase license fees, legal action was initiated in 2010 by PPCA to separate licensing for online radio programs from traditional broadcasts.

The PPCA’s purpose seems to be clear: to create a new revenue stream from online license fees. This was at a time PPCA was aggressively pursuing increases in their revenues, such as fee increases of 4,729% for operators of cafes and gyms.

Meet the players

The PPCA is one of a number of copyright collecting societies: when anyone plays recorded music such as a CD, MP3 or music video in public, permission must be obtained from the person or company that owns the copyright of that recording.

The PPCA represents many copyright holders – both record labels and individual artists. It is then the job of the PPCA to issue licenses for the public performance of recorded music, and to collect license fees and return those to the copyright holder.

Commercial Radio Australia (CRA) is the peak body representing commercial radio industry interests in Australia – it claims to represent 99% of commercial radio stations.

In short, if you listen to commercial radio then the chances are the radio station is a member of CRA.

Let the battle commence

In 2000, on behalf of its members, CRA obtained an “umbrella” license granting each member a license to broadcast recorded music, and those arrangements remain in place today.

At the time, radio stations making their broadcasts available online was a new thing, and it’s likely online content was not contemplated as a threat in the context of the agreement.

During 2010 the PPCA claimed that a CRA member radio station – NovaFM – had breached copyright in a work managed by the PPCA.

The argument was that NovaFM had played a song that was both transmitted on the usual FM band and simultaneously made available on the internet. The PPCA claimed the broadcast license issued to CRA members did not cover broadcasts also being made available online.

The PPCA based its claim of breach by referring to the wording of their agreement, which permitted members to broadcast licensed material. They went on to point out that making content available on the internet was not broadcasting, and therefore not covered under the terms of the license.

When is a broadcast not a broadcast?

In September 2000 the then-Minister for Communications, IT and the Arts Richard Alston made a determination that excluded certain services being defined as a broadcast, namely:

a service that makes available television programs or radio programs using the internet, other than a service that delivers television programs or radio programs using the broadcasting services bands.

Making an adjustment for the double negative (making an exception to an exclusion in the determination), we might interpret this to include as a broadcast:

a service that makes available … radio programs using the internet and delivers … radio programs using the broadcasting services bands.

In February 2012, when this case was first brought before the Federal Court, Justice Foster agreed with CRA’s reasoning on this point and dismissed the PPCA’s case on the grounds that a simulcast radio program was a broadcast, whether delivered using radiowaves or online.

The appeal to the Full Federal Court, explained

Yesterday’s ruling by the Full Federal Court overturned last year’s single judge ruling. Justices Emmett, Besanko and Yates took up the argument put forward by PPCA relating to legislative reforms designed to regulate datacasting (adapting broadcast services to provide internet) as being the motivating intention behind the issue of Minister Alston’s determination.

Streaming radio online and on devices may become a thing of the past. ahunziker

On this basis, the judges considered that delivery of radio and television programs could be categorised in three ways:

1. be delivered by the use of any means, including the broadcasting services bands
2. be delivered or made available using the internet
3. be delivered or made available using the internet and the broadcasting service bands

The Court found the radio program by NovaFM was supplied to the public by two simultaneous but separate services: the first being a traditional radio broadcast falling into the first category, and the online version fitting the second category, but accordingly not a broadcast.

Some lingering static

In accepting the PPCA’s interpretation of the ministerial determination being for the purpose of regulating datacasting, we encounter wild inconsistencies within the law.

Viewed through this lens of regulation of datacasting, the ministerial determination effectively makes any television or radio programs delivered over the internet fall into the category of a broadcast if the internet service over which it is delivered is a datacasting service (for example wireless internet using the analogue TV spectrum).

Yet the same television or radio programs delivered on any other form of internet access (such as ADSL broadband) is not a broadcast.

Effectively the ruling is saying that regulation is not applied on basis of content, or the originator of the content, but in how that content is delivered to a consumer, including distinguishing between methods of accessing the internet.

Regulating television and radio in this fashion simply cannot serve any useful purpose.

That said, if we consider the ministerial determination through a lens of regulating incumbent broadcasters while not stifling progress, efficiency and innovation, we find that radio and television programs can still be categorised in the same three ways. With the results being, respectively:

1. incumbent broadcasters are caught and continue to be regulated
2. “new media” services including YouTube, online movie and music services are not considered to be “broadcast” services, and so are not subject to broadcast regulation
3. incumbent operators who simultaneously broadcast and stream their content are subject to technology-neutral regulation as broadcasters – without this provision, radio and television services would be subject to two distinct regulatory schemes. This may yield unexpected results – e.g. doubling of compliance costs, and doubling of sanctions for content which may breach a law

Stay tuned

Due to the high stakes involved it will be very surprising if the CRA does not seek leave to appeal to the High Court.

Without a successful appeal against this court ruling, the PPCA is now in a position to demand fees above the present 1% regulated fee from any radio station that makes its broadcast stream available online.

Given recent PPCA demands of huge increases in license fees for other users of recorded music, a likely scenario is that many broadcasters will simply stop making their content available online.

Karl Schaffarczyk does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published at The Conversation. Read the original article.