Australian Copyright Reform Goes Into Reverse: 'Fair Use' Out, 'Three Strikes' In

Techdirt first wrote about Australia's plans to reform copyright back in August 2012. In April 2013, we passed on the news that the final report was likely to include a fair use provision. The final report was released just a couple of weeks ago, and did indeed recommend the introduction of a fair use exception to Australian copyright law. However, something happened during this long process: Australia held a general election, leading to a change in government. The new Attorney General, George Brandis, lost no time in making his views known, saying that:

he "remains to be persuaded" that Australia needs a fair use clause in its copyright law.

That's politician-speak for "I'm throwing the Australian Law Reform Commission's amazingly professional, diligent and balanced 478-page report based on evidence drawn from 109 consultations and 870 submissions into the rubbish bin, and replacing it with dogma-based policy based on my own blinkered views." Some of those were on display in a radio interview Brandis gave this week on the subject of Internet piracy. It starts off badly:

The fact is that people don't have a right to download pirate copies of songs or movies or television programs because the people who make those programs or other items have a right of property in them. The way artists earn their living is through royalties and that's the way they are remunerated for what they do.

It's one of the ways, but certainly not the only one, as Techdirt's "The Sky Is Rising" report explained. The interview gets worse:

To pirate a video or a song without paying the fee for it through iTunes, and so on, is an act of theft, it's pure and simple.

Brandis continues parroting the copyright industry by saying:

The ISPs, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen.

That's even though the Australian courts decided in the iiNet case it was simply not reasonable to require ISPs to pass judgment on those accused of unauthorized sharing. Unfortunately, given his powerful position in the new Australian government, what Brandis says matters, because he can turn his wrong-headed ideas into wrong-headed laws. The Guardian has a report of a speech he made a couple of weeks ago in which he made it pretty clear what he planned on the copyright front:

"The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks," Brandis told the copyright forum. "This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy." He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations.

It's a familiar threat: come up with totally "voluntary" co-operation schemes or we'll impose them on you using our exquisitely painful "legal incentives". But what's really striking here is that not only is Brandis regurgitating bad ideas that haven't worked anywhere, he's doing this in preference to building on the great ideas that were presented to him by people who knew what they were talking about, and who cared deeply about Australia's digital future. When it comes to making copyright fit for the 21st century and promoting the online economy, it seems that the country's new government is determined to snatch defeat from the jaws of victory.

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