Australia: Copyright discussion paper focuses on ISP regulation - does it get the balance right?

Highlights (7/08/14)
Last Updated: 13 January 2015
Article by Hayden Delaney

Joining us again today is Hayden Delaney who is a Partner in the Intellectual Property and Technology Team at HopgoodGanim. Hayden thanks for joining us again.

Thanks very much for having me again Kate.

Now Hayden the Government's released its Discussion Paper on piracy and copyright. I guess to start us off what were some of the major recommendations to come out of the Paper?

Yeah that's right Kate and some interesting statistics were coded in the paper and you know looking at it, it would appear that as a country Australia is a little bit of a nation of copyright infringers, something that was a particularly interesting statistics was the fact that the final episode of Game of Thrones which was broadcast exclusively on Foxtel in Australia, was illegally downloaded 1.5 million times by Australians in the 12 hours following the finale. So some pretty staggering statistics, and there might be a few reasons that are contributing to that, but in terms of what the Paper is focussing on, they're really looking at what sort of legal solutions can be had in order to try and address the issue of copyright infringement in Australia and they've put three proposals forward. One is a proposal for extending the authorisation liability for copyright infringement, and that's really trying to alter the position that was arrived at in iiNet somewhat. The other one is a proposal for extending injunctive relief; so the ability to injunct an ISP to block a certain site from being accessed in Australia, so if we think of examples, we think of the obvious examples like Pirate Bay and that sort of thing, requiring that the ISP block it. I suppose those who have a libertarian mindset might express some concern at the ability for that sort of power to be misused because if we think about it, certain sites like say Wiki Leaks for example frequently are publishing information which they don't own and they don't have a licence to and on that basis that sort of broad power could be used to block access to that sort of site in Australia so there's that concern and there's a few sort of can availing sort of balancing rights to consider as well too. And the final proposal that was put forward was extending the same harbour regime to capture things not just done by carriage service providers but search engines, universities, et cetera.

And Hayden you mentioned that the first recommendation kind of touches on the iiNet decision; do you see the paper I guess at odds with the iiNet decision?

Yeah I wouldn't say it's at odds with it, in that it's not contradicting what was found in that decision but it is trying to alter the outcome of it basically. So that decision found that ISPs don't have power to prevent the infringing act from happening, and therefore they don't meet the requisite element of having the power to prevent which is a requirement of authorisation of infringing copyright. So that was an essential element, it was found they didn't have it. What the Paper is trying to do is alter the position such that the power to prevent isn't an essential element for authorisation of copyright infringement it's just one of a number of factors that is to be considered. So not at odds, but it is ultimately trying to change the outcome.

And Hayden you mentioned at the beginning Game of Thrones and obviously we saw a lot of people download that content illegally, we certainly have a situation in Australia where Australians often can't get access to content or are required to pay more for the content when we compare ourselves with overseas. I guess does the report deal with this issue of access to content as a way of reducing piracy?

Look it doesn't deal with it directly in that it doesn't set out a proposal to try and increase access to content as a way of reducing piracy. It does acknowledge briefly that it is a problem, but none of the proposals really deal with that issue or touch on that issue. And I think if we're going to have a real discussion about looking at why Australia is infringing copyright so much, I think those sorts of issues have to be part of that discussion absolutely and the paper itself, while it may not have sort of dealt with those types of issues in any particular detail, fairly recently Malcolm Turnbull has come out and in an interview acknowledged that it is an issue and that Australians are paying 40% more than people in the US to download movies, and on top of that there's no real easy way for Australians to access content in the way they really want to. So Game of Thrones was a really good example in the sense that if you wanted to get access to Game of Thrones in Australia at the same time as when it was being released in Australia you had to have a subscription to Foxtel. So to use an analogy it's a bit like requiring people to buy a farm and really all they're after is a six pack of eggs or something like that. So I think those sorts of issues have to be on the table, they have to be considered as part of a holistic view to reforming Australia's copyright laws.

Well just finally Hayden, I guess what's your – your opinion of the Paper, do you think that the proposals strike the right balance?

Balance is a really tricky issue to consider in terms of any type of IP law. IP law is ultimately about trying to find a right balance between all these different stakeholders, so we have to absolutely encourage investment in creating content that people want to watch. If that incentive isn't there then ultimately all the consumers around the world are going to be disadvantaged because we're not going to see fantastic content because there won't be the incentive to produce it. So that's an underlying driver for having copyright laws in the first place, and that has to remain paramount of course, but on top of that it needs to be balanced against not putting all of the burden for regulating and protecting copyright on a particular type of industry like internet service providers, and on top of that we have consider what is good for consumers and whether the business model that is currently being employed in Australia is partly to blame for the rapid use of infringing websites and various sort of platforms which provide an ability for consumers to get ready access to infringing content. Whether I think it strikes the right balance my personal view is I think it's weighted a little bit too heavily in terms of regulating ISPs and the like I think it's trying to put nearly all of the burden on those particular types of organisations rather than acknowledging the fact that obviously rights owners do need to ultimately take responsibility for enforcing their own content and the law needs to enable them to do that. So there needs to be some questions asked in that regard but I think at this stage the proposals seem a little bit too heavily weighted towards regulating ISPs and carriers and what not.

And just finally Hayden what's happening now after this Paper is the Government seeking submissions or what are the next steps?

Yep that's right so the Government currently is seeking submissions on the Paper, so people will have the ability to have their say, and I think it's important for most people who have a vested interested in these laws to try and get their say in, so I'd be encouraging everyone to do that.

Yeah some good advice there and some really interesting issues raised, Hayden thanks so much for joining me.

Thanks very much for having me again Kate.

That was Hayden Delaney, who is a Partner in the Intellectual Property and technology Group at HopgoodGanim. Listeners if you have any questions for Hayden you can send them through either using the panel on your screen or via email to

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions