Korea-Australia trade agreement signals new piracy laws

The Australian government could try to pass new legislation aimed at reducing Australians infringing on copyright of songs, TV shows, and films online by the end of this year as part of the ratification of the Korea-Australia Free Trade Agreement (KAFTA).

Australian Attorney-General George Brandis already labels Australia "the worst offender in the world" when it comes to online copyright infringement, and in part blames the 2012 High Court ruling that iiNet as an internet service provider did not authorise its users' infringement of films owned by members of the Australian Federation Against Copyright Theft (AFACT).

"A lot of the pressure on the ISPs to come to the table went away because the ISPs had a very comprehensive victory in the iiNet case," he said last month.

"Since the iiNet judgment came down, there has been less willingness from some ISPs to come to the table."

In February, Brandis issued the ISPs with an ultimatum: come up with a voluntary scheme, or expect new legislation. At the time, he flagged that Australia might have to change its copyright law to align with a number of free trade agreements Australia was in negotiation for at the time.

Trade Minister Andrew Robb then subsequently signed a free trade agreement with Korea in April, with the text of the agreement and the National Interest Analysis (PDF) for the agreement tabled in Parliament in May.

The National Interest Analysis for the agreement highlights that the iiNet High Court ruling is at odds with KAFTA and the Australia-United States Free Trade Agreement, and will require an amendment to the Copyright Act.

"Consistent with Australia's existing obligations in the Australia-US and Australia-Singapore FTAs, and to fully implement its obligations under KAFTA, the Copyright Act 1968 will require amendment in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court's decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers."

According to the Department of Foreign Affairs and Trade's website for KAFTA, all legislation that needs to be changed prior to KAFTA coming into force is aiming to be passed by the government by the end of 2014.

DFAT declined to comment, and while a spokesperson for the Attorney-General's Department would not say whether new legislation would be brought about to align copyright law with KAFTA, and said it was part of the government's consideration.

"The government is actively considering possible options to address online copyright infringement. Any proposal that the government takes forward will be consistent with Australia's existing and future international obligations," the spokesperson said.

Similar statements have been provided to previous requests for comment surrounding proposed changes to copyright law in the last few months.

Changes to legislation may be unnecessary, however. University of Sydney associate law professor Kimberlee Weatherall has told the parliament that the National Interest Analysis of the agreement is inaccurate, and no amendments are required to comply with KAFTA or the existing Australia-US FTA.

"In my view, the assertion in the NIA is simply incorrect. Australia does not have an obligation — under AUSFTA, or even under KAFTA if ratified — to impose liability on internet access providers for their users' copyright infringements," she said.

Weatherall argued Australian ISPs already have legal incentives to cooperate with copyright holders, because they remain at risk of both direct and authorisation liability in copyright. She argued that the High Court ruling for iiNet was not to be seen as a "get out of jail free" card, because it was very fact- and case-specific to iiNet and the infringement notices it had received from the film studios.

Weatherall said that the current definition of cooperating with rights holders might not be in the way rights holders want, but it does exist.

"Australian law provides not merely incentives but requirements for ISPs to cooperate with legal proceedings that copyright owners might seek to bring against individual infringers through the mechanism of preliminary discovery," she said.

"The fact that the form of cooperation incentivised by Australian law is not right holders' (currently) preferred form of cooperation does not put Australia in breach of AUSFTA."

Documents obtained by ZDNet earlier this month reveal that rights holders are quietly lobbying the Attorney-General's department for a "notification scheme" otherwise known as "graduated response" that includes education notices and ultimately "injunctive relief" preventing repeat infringers from continuing downloading or sharing copyright-infringing TV shows, films or movies.

The Communications Department, however, has flagged that any such scheme will likely need to include forcing content owners to make content available legitimately at a fair price.