In an effort to deter online copyright infringement and take action to tackle Australia's growing difficulties with online piracy, a draft industry code entitled the Copyright Notice Scheme (Scheme) has recently been released for public comment by the representatives of Internet Service Providers (ISPs), Communications Alliance.
ISPs worked on the Scheme together with representatives of copyright owners and consumer groups after being put on notice by the government last December to develop and submit a draft code by April 2015 or the government would legislate.
Under the Scheme, residential fixed line internet consumers who have allegedly infringed copyright through illegally downloading material will receive an escalating series of education and warning notices from their ISP, which will provide details of the alleged infringement and encourage them to source material lawfully.
The Scheme aims to assist copyright holders in their pursuit to protect their intellectual property, particularly in the event that they wish to take legal action against repeat offenders. It ultimately facilitates the cooperation of ISPs and copyright holders, to enable ISPs to assist copyright owners in the evidence gathering process and in making contact with alleged copyright infringers.
The Scheme does not contemplate the disclosure by the ISP to the copyright owner of details of the account holder complained of at any time, as privacy law would prevent this. However, the notices would state that copyright infringement may lead to a copyright owner instituting court proceedings against the account holder 'including a preliminary discovery application to obtain the [account holder's] details'. A similar preliminary discovery application is now before the Federal Court (Dallas Buyers Club, LLC v iiNet Limited (No 1)  FCA 1232).
Despite the involvement of consumer groups in the drafting of the Scheme, concerns have been raised from consumer organisations including Choice and the Australian Communications Consumer Action Network (ACCAN) regarding several aspects of the draft code. For example, a concern for Choice was the potential for arbitrary payments to be demanded and the issuing of unlimited fines, given that in Australia there is the potential for significant amounts to be sought by rights holders for copyright infringement. (Choice, "Proposed anti-piracy scheme puts consumer rights at risk", 25 February 2015).
Another aspect of the Scheme that has been criticised by consumer groups is the $25 fee that consumers must pay to challenge a notice alleging copyright infringement. (Choice, "Proposed anti-piracy scheme puts consumer rights at risk", 25 February 2015). The concern is that this fee limits access to justice. (It is noted, however, that the fee is refundable if the challenge succeeds or upon the discretion of the administrating body).
However, the Scheme does not itself create the issues complained of. Rather, its proponents would argue, it aims to prevent the need for copyright holders to take (and for consumers to defend) legal action through facilitating communications between copyright owners, ISPs and their customers, to ultimately combat online piracy and protect the rights in creative undertakings. The CEO of the Communications Alliance, Mr John Stanton, said that the "publication of a draft code is an important milestone toward greater protection for the legitimate rights of the creative industries".
The drafting of such a Scheme in a short period of time and the cooperation by participants is to be commended, however there are some elements of the Scheme that are still being discussed by copyright holders and ISPs, such as:
- the maximum number of infringement reports copyright holders can send to ISPs to process;
- the threshold number of customers an ISP must have before the Scheme applies to that ISP;
- the terms of an indemnity the copyright owner would provide to an ISP before the ISP is required to send any notices to its customers; and
- the quantity of costs of ISPs in meeting the requirements of the Scheme and the fair apportionment of these costs between ISPs and copyright owners.
The latter two issues have been particular sticking points in previous cooperation efforts between copyright owners and ISPs, so those who would prefer the government not to legislate would hope the two industries have come closer to a resolution through this process.
The Code is open for public comment until 23 March 2015. The final Code must be submitted to the Australian Communications and Media Authority (ACMA) in April, or the government intends to legislate.
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