Only days before the High Court of Australia is set to hear an
appeal by a group representing many of the largest entertainment
industry rights holders in Australia against a Federal Court
Judgement in February that found Internet Service Provider
("ISP") iiNet was not responsible for copyright
infringement by its clients, the Communications Alliance and five
of Australia's largest ISPs have joined forces and unveiled a
ground-breaking proposed scheme to combat the increasing problem of
online copyright infringement.
The five signatories to the scheme are Telstra Bigpond, Optus,
iiNet, iPrimus and Internode1.
The scheme is aimed to assist entertainment industry rights
holders to enforce their copyright by achieving a prolonged and
positive change in the behaviour of those who engage in online
Some of the key principles underlining the scheme are:
rights holders have primary responsibility for enforcing their
intellectual property rights;
the fundamental principle of balance between the interests of
rights holders, ISPs and consumers must be preserved;
consumers' rights to privacy, the protection of presumption
of innocence, burden of proof, evidence, natural justice and equity
and internet access are to be preserved;
education about online copyright infringement issues must be
made available to consumers; and
rights holders must continue to take steps to improve the
availability of legal and affordable content online to reduce the
motivation to source content in ways that might be
The core elements of the scheme are:
even though there isn't a dedicated piece of legislation
known as 'the Social Media Act' there are legal
consequences from the misuse of social media;
the scheme is limited to only consumer, residential and
landline internet account holders;
the scheme is to be conducted as an 18 month 'notice and
the allocation of costs incurred by rights holders and ISPs
should reflect the relative economic benefit derived from the
scheme. The reasonable costs incurred by ISPs to assist rights
holders to enforce their copyright should be reimbursed, in
accordance with other instances where ISPs assist third parties
such as law enforcement agencies; and
rights holders must indemnify ISPs for the actions ISPs take in
operating the scheme, provided ISPs act in accordance with the
In response to evidence provided by rights holders, the scheme
would require ISPs to forward education and warning notices to
customers whose internet accounts have been detected undertaking
activity that might infringe copyright laws. ISPs would send the
'education notices' to customers suspected or infringing
copyright by uploading or downloading content such as movies,
television shows, computer games and music.
If a customer was to continue with the illegal conduct after
being served with an education notice, this would be followed by up
to 3 warning notices in a 12 month period. If the customer
continued to infringe, the copyright holder would be able to seek
user details from the ISP, allowing them to institute legal
The Communications Alliance says the scheme has a strong
emphasis on educating consumers as many consumers are not aware
that their online activity could be illegal. The scheme is also
designed to assist rights holders to protect their copyright in
cases where internet users persist in improper activity despite
Although the scheme allows the ISPs to warn consumers and
eventually report their illegal online activity, it does not allow
ISPs to terminate a consumers internet accounts, nor for any
punitive sanctions to be imposed on customers by ISPs and provides
consumers with the right to appeal the receipt of a notice.
Following the 18 month trial of the scheme, an independent
evaluation of the scheme is to be undertaken to determine its
effectiveness, including whether it produces a real change in
consumer behaviour and whether the scheme should be continued in
its initial form or modified for improvement. The Communications
Alliance says the evaluation would take into consideration the
growing body of international experience in other jurisdictions
such as UK, New Zealand, Canada, France and the USA where varying
types of online copyright schemes were being implemented.
The Communications Alliance says the proposed scheme requires
further consultation with rights holders, consumer representatives,
the Federal Government and the broader ISP sector before full
details and an implementation timetable could be finalised.
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.
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