by Hugh Stephens
This is an edited version of a speech given by Hugh Stephens at the Australian Copyright Society on Tuesday 23 October 2018. The full text can be downloaded here.
We are in a new era of Internet accountability which provides new opportunities for dialogue and partnership between the technology world and world of content creativity. Let’s not miss this moment.
This moment could pass if the tech community cannot find common ground and work cooperatively with rights-holders, in the process restoring a balance that has gone askew as the digital revolution has taken hold. It has been a long time in coming--more than 20 years.
Only slowly, like the frog being boiled in water, has society woken up to the potential for abuse, come to the realization that creative industries such as print media are being hollowed out, and watched as free-riding on the back of the creative community has become a blood-sport. In the process, huge oligopolies --virtual monopolies–have grown in many sectors of the Internet, such as search and social media. It is encouraging that policy makers are now starting to take note, as exemplified by reforms to the Copyright Directive in the EU and the current Digital Platforms Inquiry in this country being conducted by the ACCC.
It is clear the public mood is changing. Public apologies to legislators, commitments to "do better" and "fix the problems" coming from the platforms are but the tip of the iceberg. Politicians and courts are now taking a much closer look at the previous assumption that if the Internet is to thrive and grow, if we are to be able to reap the full benefits of digital innovation, we must not do anything that might be construed as nipping the Internet in the bud. In fact, the risk is that if the platforms and intermediaries don’t start making changes voluntarily, policy makers will do it for them, with the attendant risk that the pendulum of regulation could swing too hard the other way.
In this world of disruptive change, content protection was wrongly portrayed by many in the tech community as an obstacle to innovation. This is one of the arguments advanced in Australia for the introduction of a broad “fair use” principle, with fair use advocates arguing that without it, innovation will be held back. Yet copyright does not stand in the way of innovation; in fact it enables it.
While there are many factors in the growth of piracy, among the most important is the role of the Internet platforms, who have benefited mightily from the loose rules. Although not done deliberately, it is the platforms that have enabled piracy to develop on an unprecedented scale, and then they have monetized the unauthorized use of content (alongside legitimate uses to be sure) in building dominant and successful businesses.
I would call this the world of internet irresponsibility; a laissez-faire, deliberately-blind approach to the interests of others in the Internet ecosystem. It goes beyond misuse of intellectual property of course, to issues of privacy, consumer consent, anti-competitive practices and social responsibility.
Self-regulation has not worked so well. Now we know what policy-makers didn’t know two decades ago, and we can see what can happen when the balance of appropriate regulation and business leverage is lost.
In this context, it is worth looking at comments Senator Mitch Fifield, Minister for Communications and the Arts, made earlier this month to the Sydney Institute in his address “The Internet--not an ungoverned place”. The Minister laid out a number of concerns and actions in that speech but I thought the following remarks were particularly apposite;
“Digital platforms and online content providers are increasingly realising they have a duty of care in the communities and markets that are brought together by their services.
I see this as coming to terms with the reality of their social licence – in much the same way that traditional media services recognised and accepted their social licence to the community in the 19th and 20th centuries.
This is welcome. As a Government, we expect industry to take the first step in responding to community standards for appropriate behaviours online. But it remains to be seen whether their actions alone will be enough….where platforms fail to act to reduce harm, we won't hesitate to do so.”
In Europe, another area where the platform responsibility issue is under review, needed change is coming through the adoption of revisions to the Copyright Directive, including Articles 11 and 13. These revisions were passed on a second attempt by Members of the European Parliament in September after the initial vote was hijacked by a well-organized spam and astroturfing campaign mounted by copyright opponents facilitated, among others, by the Canadian “non-profit” group Open Media (of which Google is a platinum funder).
If enacted-and there is still some way to go-these provisions will help significantly in restoring some balance to the content-monetization equation, and will neither impede free speech nor “break the Internet”.
The platforms fought hard against this outcome and they haven’t given up. They continue to fight, in Canada, in Australia, in New Zealand, in Europe. They tried to get absolute platform immunity baked into the new NAFTA’s digital chapter and thus short-circuit the amendments that were eventually approved by the US Congress (known as FOSTA-the Fighting Online Sex Trafficking Act). In Australia, there are attempts to introduce a “technical and incidental” exception that would grant a blanket immunity to search engines, subject to fairness factors which in effect amounts to fair use via the backdoor.
In Australia, I must ask, has current law impeded innovation or imperilled the functions of search engines or other internet intermediaries in Australia? Not to my knowledge. I would urge Australian policy-makers to think carefully and not to try to fix that which is not broken.
Beyond copyright there are of course a number of steps that can be taken to enhance privacy and protect the personal information of consumers. Revisions to terms of service to make it clear what a consumer is giving up when he or she clicks “I agree” are needed. Fuller cooperation with national authorities to block offshore websites streaming pirated content would be helpful., While ISPs do the immediate blocking, intermediaries could cooperate instead of fighting these proposals. Search engines, for example, play a critical role in guiding users to pirate sites.
(It looks as if Australia will be moving soon to address this problem with the announced new amendments to the Copyright Act).
The platforms are facing increased pushback from the courts, lawmakers and the public, and there is a risk of over-reaction. A partnership with the content industries, a working relationship rather than an adversarial standoff, will help mitigate this risk.
And policy makers have an important role to play by continuing to push the platforms in order to incentivize them to open a meaningful dialogue with the content community.
Rightsholders need to remain vigilant that existing protections are not further eroded. Moving beyond that, there is a need to push for fairer compensation for the use of copyrighted content, whether it is closing the value gap in music, ensuring that writers are fairly compensated, or finding ways to help news content producers to monetize their own content.
Finally rights-holders need to work with the platforms to convince them that it is a short term and in the end self-defeating strategy to profit off the listing, hosting or providing access to pirated content. The Internet is an ecosystem of creation, distribution, and consumption. Break the cycle and you break the virtuous circle.
The public mood is changing and patience is running thin. The abuses of the Internet intermediaries that have been widely publicized-- the invasions of privacy and misuse of personal data, the manipulation of news content, the knowing tolerance and even facilitation of piracy-- have provided an opening and opportunity to redress the balance. They also offer an unparalled opportunity to build a lasting digital structure through cooperation between copyright industries and tech intermediaries. Let’s use this opening to bring about an atmosphere of greater respect for copyright and content. The era of internet accountability is here and the period of regulatory capture is over. Lawmakers are ready to move.
Let’s find ways to restore the balance between content and distribution that has gone so badly astray over the past 20 years, in partnership with the tech community. And lets see the tech community grasp this opening and step up its efforts to work with rightsholders instead of fighting them.
Hugh Stephens is the principal of TransPacific Connections, an executive fellow at the School of Public Policy at the University of Calgary and Vice Chair of the Canadian Committee on Pacific Economic Cooperation (PECC)
Mr. Stephens has more than 35 years of High Level government and business experience in the Asia-Pacific region. He was Senior Vice President (Public Policy) for Asia-Pacific for Time Warner for almost a decade. Mr Stephens had previously spent 30 years in the Canadian Foreign Service with the Department of External Affairs, later the Department of Foreign Affairs and International Trade (DFAIT). He also served abroad as Canadian Representative in Taiwan, along with a number of overseas postings in the Asia Pacific Region, including service at the Canadian Embassy in Beijing.