Government Response to Online Copyright Infringement Reforms Announced

Friday 12 December 2014 @ 2.05 p.m. | IP & Media

The Attorney-General and the Minister for Communications have issued a joint media release announcing the Government’s response to July’s Issues Paper on Online Copyright Infringement.

Background to Issues Paper Consultation 

Submissions were sought from interested organisations and individuals on the questions outlined in the discussion paper and on other possible approaches to address this issue. Submissions closed on Monday 1 September 2014.

There were two specific steps the Government outlined in their response paper, as detailed below.

Step 1: Industry Code

The Government has written to “industry leaders” and told them to come up with an agreed industry code for a “graduated response” regime to be registered with the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997 (Cth).

The government expects the code to address the following objectives:

  • that ISPs take reasonable steps (including the development of an education and warning notice scheme) to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the infringement;
  • informing consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content;
  • providing appropriate safeguards for consumers;
  • fairly apportioning costs as between ISPs and rights holders;
  • ensuring smaller ISPs are not unfairly or disproportionately affected; and
  • include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices.
  • being sustainable and technology neutral.

If the “industry leaders” cannot come up with an agreement within 120 days the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 (Cth) or an industry standard prescribed by the ACMA.

Step 2: Blocking of Overseas Websites

The Government will also introduce legislation to amend the Copyright Act 1968 (Cth) to enable rights holders to apply for a court order requiring ISPs to block access to overseas hosted websites that are primarily for the purpose of facilitating online copyright infringement.

While the blocks would stop most people accessing illicit material, they are unlikely to stop tech-savvy Australians who use virtual private network (VPN) software to bypass them.

In a submission to government, peak telecommunications industry body Communications Alliance backed a site-blocking scheme with appropriate safeguards despite the risk of "collateral damage". Legitimate sites could inadvertently be blocked and blocked sites may quickly reappear at a new address, the submission said.

Reaction from Stakeholders

According to the Government Media Release:

"The issue of affordability and accessibility of legitimate content is a key factor in reducing online copyright infringement. The Government welcomes recent action by content owners and expects industry to continue to respond to this demand from consumers in the digital market."

However, Electronic Frontiers Alliance executive officer Jon Lawrence says:

"Downloading something like Game of Thrones without paying for it is a breach of copyright but if you're not doing it on a commercial scale, it's simply a civil issue and it's the copyright owner's problem if they want to come after you."

One of the major problems detailed by downloading parties include the delay and additional costs Australians face in an increasingly global entertainment environment. Research released by consumer group CHOICE in September 2014 revealed Australians can pay up to 400 per cent more for some subscription television content: 261 per cent more on iTunes, 219 per cent more on Google Play, and 426 per cent more on Foxtel Play.

With the first Australian case of this kind on civil copyright launched by the creators of the movie Dallas Buyers Club in October 2014, it will be interesting to see the code developed by industry leaders in the coming months.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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