By Suelette Dreyfus, University of Melbourne
Last week Michael Froman, a US trade representative, took his son touring around the Paramount lot in Hollywood to visit a sound mixing stage, watch a movie and pose for happy snaps with company executives.
The VIP movie lot tour, with personal touches, illustrates how close the US trade office and the movie production companies have become, and exactly who is pushing for a controversial trade agreement with 11 Pacific Rim countries including Australia.
The innocuously named Trans-Pacific Partnership (TPP) is about expanding the revenues of large Hollywood movie companies and music publishers.
The TPP may effectively force the entire Internet Service Provider (ISP) industry to become the street cops for the movie and music industry. This will be expensive and intrusive.
Specifically the TPP may force ISPs to:
- ‘filter’ all their internet communications, prowling through all our online interactions on the hunt for any possible copyright infringement
- hand over the identity of alleged infringers – not to the police – but to the copyright holders (usually the movie or music companies)
- censor sites that could possibly be engaged in copyright infringement
ISP customers could suddenly have their accounts terminated where complaints against them for infringement have been made.
Having ISPs monitor copyright infringement is the equivalent of a shoplifter stealing a CD from a music store, driving away down a toll road, and then expecting the private tollway operator to stop and search every car on the highway for stolen goods. This is not the tollway operator’s responsibility.
The motion picture and music publishing industries should pay for and manage their own security to protect their commercial goods, just as a department store pays to put security tags on its dresses.
Or better still they could simply trial new models for making money in the face of technology-led change.
The revelations of just how draconian the TPP’s provisions are have caused uproar in other close allies, generating this damning editorial in the New Zealand Herald.
In the US, citizens groups are vocally objecting because the TPP does not benefit Americans so much as a handful of American companies at the cost of American citizens.
One of the most insidious aspects of the TPP is how it will override Australian sovereignty.
Last April, the High Court of Australia made a ruling on the issue of whether ISPs should be liable if a user downloads illegal content in the iiNet ISP case.
The court found iiNet had no direct technical power to prevent users from obtaining content illegally.
While iiNet could terminate an infringing client’s account, it was still possible for that same client to open up a new internet account elsewhere and access infringing material, the Court said.
“this circumstance shows the limitations on iiNet’s power to command a response from its customers, or to prevent continuing infringements by them.” – High Court ruling
In this landmark case, iiNet had refused to act on “take-down” notices because the information provided in those notices was not sufficient. The TPP would override this ruling.
The TPP would encourage large US companies to go on extended fishing exercises though the customer lists of Australian ISPs, an expensive exercise for the ISP and the customer.
If the customer is an infringer, they simply move on to another provider. Meanwhile the Australian ISP has had to engage in a fruitless and expensive exercise to monitor the content, and at the same time has lost a subscriber.
The TPP will ask ISPs to police what is un-policeable, and the only people punished will be the ISPs and the subscriber, with little to no proven impact on the bottom line of the copyright holder.
If the foreign music and movie industries are worried about piracy, they can decide to invest in improving their product’s security – like any other business does. It is neither fair nor right they should ask any other industry to pay what should rightly be their own expense.
Most worrying is the larger social impact. The TPP would negatively impact on freedom of expression. It would create another level of surveillance on the subscriber and prevent an ISP from selling its service free from intervention.
And it would make access to the internet more expensive as ISPs would increase charges to cover the new requirements.
The internet is our most important communication tool; making it harder to access or use impacts negatively on freedom of speech.
Attorney General George Brandis recently declared himself a champion of free speech, and evidenced this with plans to peel back racial discrimination laws. Will he prove himself the same free speech advocate when it comes to protecting ISPs and the internet?
The TPP is bad for Australian businesses, the economy, and most importantly of all, consumers.
Suelette Dreyfus 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.