Australia ‘Follow-the-Money’ anti-piracy

The Australian telecommunications industry has sought formal regulatory approval to launch a ‘Follow-the-Money’ strategy that will act to reduce the economic incentive to promote or facilitate online copyright infringement in Australia.

Trade body the Communications Alliance has lodged an application with the Australian Competition and Consumer Commission (ACCC) for an authorisation that would enable telco service providers to agree collectively not to advertise their products and services on web-sites that promote or facilitate online copyright infringement.

Communications Alliance CEO, John Stanton, said the move was a practical example of Internet Service Providers’ (ISPs) willingness to help rights holders tackle the infringement problem. “We have real concerns about some of the proposals being put forward by Government at present, but a follow-the-money approach is a concrete strategy that will reduce the volume of advertising funds to web-sites that promote or facilitate infringement and thereby reduce their viability. We are hopeful that a very broad coalition of companies – not just in the telecommunications sector, but right across the economy – will join the strategy and make real inroads against infringement,” he stated.

A trial of the follow-the-money strategy being pursued in the UK generated an immediate reduction of 12 per cent in the advertising revenue flowing to a list of infringing websites being managed by the City of London Police.

The Police Intellectual Property Crime Unit (PIPCU) has been working with brands, media agencies and ad networks to seek to ensure that advertising revenue is not directed to the websites. In July 2014, PIPCU announced it had begun replacing legitimate brand advertisements on the targeted websites with official police force pop-up banners that inform visitors that the site is under investigation for copyright infringement. Communications Alliance first raised the prospect of an Australian-industry-led follow-the-money strategy in its submission last month in response to the Government’s discussion paper on online copyright infringement.

At least one ISP member of Communications Alliance already has policies in place which prevent any of its advertising spend being directed to sites that promote or facilitate improper file sharing.

According to the Communications Aliance, there is a risk, however, that a united stance by ISPs would contravene Division 1 of Part IV and/or Section 45 of the Competition and Consumer Act, 2010 (CCA), which prohibits contracts, arrangements or understandings which have the purpose, effect or likely effect of lessening competition or contain exclusionary provisions.

“The authorisation we are seeking from the ACCC, if granted, would enable ISPs and others to join the strategy without fear of breaking competition laws,” explained Stanton. He said Communications Alliance had approached a number of other Australian industry representative bodies seeking their support for the strategy. “Already the Australian Industry Group (AIG) has expressed in-principle support for the initiative and I hope that even broader support will soon be in evidence. We certainly also believe that rights holders should step up and work with service providers on this important initiative.”

In the meantime, Communications Alliance has commenced preliminary discussions with the Federal Government about how to create and maintain an Australian list of infringing web-sites. Industry believes that the list needs to be managed independently of service providers and rights holders.

The Government has proposed a range of measures to combat online copyright infringement. In its submission to the Government, Communications Alliance strongly opposed the Government’s proposal to extend authorisation liability in the Copyright Act – because industry believes this would create damaging unintended consequences for consumers and businesses.

That view has been echoed by a large number of service providers and technology companies from Europe and the United States, which have intervened because of concerns over the potential international repercussions of the Australian Government proposals.

The Communications Alliance did support a proposed amendment to extend the safe harbour provisions of the Copyright Act and recommended that the Government closely consider a follow-the-money strategy.

ISPs have expressed their willingness to engage in good faith discussions with rights holders on other potential industry-agreed steps to combat infringement. A range of issues – including who pays for other agreed measures, needs to be addressed.

ISPs also strongly believe that any package of measures must include continued efforts by rights holders to make lawful content accessible to Australian consumers in a timely and affordable way.

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