Proposed Anti-Piracy Industry Code Introduces “Three Strikes” Notice Scheme But Leaves Sanctions To Courts
Wednesday 25 February 2015 @ 12.30 p.m. | IP & Media
The Communications Alliance, a joint body of internet service providers (ISPs), communications providers and rights holders, has released a draft “Copyright Notice Scheme” ("the Draft Scheme"). The Draft Scheme has been developed in response to a deadline set by the Federal Government, who announced that they would “impose binding arrangements” on the industry if a code was not developed by April 8, 2015. The Draft will be open for public comment until March 23, and will then be submitted to the Australian Communications and Media Authority for approval.
According to CNET, stakeholders participating in drafting the code include:
“the Australian Recording Industry Association, Australia Screen Association, Copyright Agency, pay-TV provider Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow and World Media… Telstra, Optus and iiNet.”
“Three Strikes” Scheme
The Draft Scheme adopts a version of the “three strikes” model that TimeBase has previously outlined. It will introduce a series of tiered notices called Education, Warning and Final Notices. Rights holders will identify IP addresses linked to copyright infringements and ISPs will need to match it to their customer database and send the relevant notice. The first notice in any twelve month period will be an “Education Notice”, the second in twelve months will be a “Warning Notice”. If the third notice, the “Final Notice” occurs within the same twelve month period, rights holders can then decide to apply through the Federal Court system to ask ISP’s to reveal an infringer’s personal information. Account holders may have the allegations independently reviewed. However, there are no specific sanctions included in the Draft Scheme such as throttling internet speeds or cutting off internet access. Rather, the actual finding of infringement and any sanctions will be left up to the court process.
Reaction from Stakeholders
The Communications Alliance told the Australian Financial Review:
“the scheme has a ‘strong emphasis on public education and does not contain explicit sanctions against internet users’ but added that it does provide for a ‘facilitated preliminary discovery’ process through which ISPs can assist rights holders who may decide to ‘take legal action against persistent infringers’”.
Graham Burke from Village Roadshow spoke out in support of the Draft Scheme, telling the Australian Financial Review:
“The ISPs have acted with a real sense of social responsibility in addressing what is plain and simple theft. Right now, American Sniper (which Village Roadshow co-produced) is being stolen widely.”
Criticism
However, the Australian Communications Consumer Action Network expressed concern about the Draft Scheme to CNET, saying that the code still left internet users exposed to harsh penalties through the court system.
Peter Moon, from Cooper Mills Lawyers, has also written a piece critical of the Draft Scheme in the Australian Financial Review. He points out that the Scheme is limited to residential fixed home connections, and says “[a]nyone who can arrange their affairs so that their internet account is in a company name will sidestep the whole code”. He also says because the code was drafted quickly to meet the deadline, it shows signs of “ragged drafting” and is still missing important information:
“such as the terms of a key indemnity the studios will have to give ISPs, cost-sharing arrangements and the cut in point for an exclusion for small ISPs…
There’s an important role for something called a qualified rights holder, but no definition of what that means. And infringement reports will only be valid if they are issued within seven days of infringement being "detected and verified". Again, there's no definition around what that means, leaving it open to debate and even manipulation.”
When will it start?
If approved, the Copyright Notice Scheme is scheduled to begin on 1 September this year.
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.
