What an Anton Piller order should look like

Bearing in mind the potential for the privilege against self-incrimination to be invoked, Bromberg J’s orders in Bluescope v Somanchi are a good illustration of what an Anton Piller order (search and seizure ex parteshould look like (but often do not).

BlueScope Steel Limited v Somanchi [2016] FCA 4

Dallas Buyers Club No 5

Perram J has rejected Dallas Buyers Club’s latest attempt to get permission to send those letters of demand out.

Last time out, Perram J said DBC could get the names and addresses of the 4726 “downloaders”[1] only if it gave undertakings to use the information for the purposes of resolving its infringement allegations. limited the demands for compensation to the retail price of a download and some part of the unrecovered costs of detection and put up a bond of $600,000.

This time round, DBC wanted to claim monetary compensation on a different basis, including additional damages under s 115(4) and restrict the bond to $60,000 as it was only seeking release of details of about 10% of the “downloaders”. It also did not offer up the undertakings.

Perram J told them, no sale; they had their shot at what they wanted in the previous hearing(s). His Honour gave them until 11 February 2016 to comply with his previous orders or he would dismiss the application.

Dallas Buyers Club LLC v iiNet Limited (No. 5) [2015] FCA 1437


  1. By which I really mean the account holders whose accounts the ISPs’ records showed were using the IP addresses at the time of the alleged infringements.  ?

Harper Review: Government Response

Yesterday (November 24), the Government published its response to the Competition (Harper) Review.

According to the response, “Harper” made 5556 recommendations; the Government has accepted 39 of them in full, 5 in part and the remainder are still under advisement.

In the intellectual property field, the item receiving most press (here and here) is the Government’s acceptance of the recommendation to remove all remaining restrictions on parallel importing books. At the moment,[1] the importation of a genuine book published first in Australia or within 30 days of first publication overseas may be blocked provided the copyright owner complies with the convoluted regime to supply copies in response to an order. This guarantees availability, but still leaves the copyright owner free to set the price it charges the person placing the order.

Harper recommended:

Restrictions on parallel imports should be removed unless it can be shown that:

• the benefits of the restrictions to the community as a whole outweigh the costs; and

• the objectives of the restrictions can only be achieved by restricting competition.

Consistent with the recommendations of recent Productivity Commission reviews, parallel import restrictions on books and second?hand cars should be removed, subject to transitional arrangements as recommended by the Productivity Commission.

Remaining provisions of the Copyright Act 1968 that restrict parallel imports, and the parallel importation defence under the Trade Marks Act 1995, should be reviewed by an independent body, such as the Productivity Commission.

What the Government plans:

The Government supports the removal of parallel import restrictions on books. The Government will progress this recommendation following the Productivity Commission’s inquiry into Australia’s intellectual property arrangements (see Recommendations 6 above) and consultations with the sector on transitional arrangements.

The terms of reference for the inquiry provide that the Productivity Commission is to have regard to the findings and recommendations of the Harper Review in the context of the Government’s response, including recommendations related to parallel import restrictions in the Copyright Act 1968 and the parallel importation defence under the Trade Marks Act 1995.[2]

Harper’s recommendation 6 was a reference to the Productivity Commission to undertake a 12 month long “overarching review of intellectual property” focusing on

competition policy issues in intellectual property arising from new developments in technology and markets; and the principles underpinning the inclusion of intellectual property provisions in international trade agreements.

The Government response notes that in August it had already made this reference to the Productivity Commission.[3] The response on this point is curiously even-handed. The Productivty Commission:

is to have regard to Australia’s international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party. The global economy and technology are changing and there have been increases in the scope and duration of intellectual property protection. Excessive intellectual property protection can result in higher costs for Australian businesses and consumers and inhibit innovation. However, weak intellectual property protection can lead to under?investment in research and development (R&D) which also stifles innovation. A comprehensive evaluation of Australia’s intellectual property framework is needed to ensure that the appropriate balance exists between incentives for innovation and investment and the interests of both individuals and businesses, including small businesses, in accessing ideas and products. (emphasis supplied)

However, an independent inquiry into the processes for negotiating intellectual property provisions in treaties is not necessary: there are already robust processes in place and publishing an independent cost benefit analysis before the negotiations have concluded might tip our hand in the negotiations.

Section 51(3) gained a slight reprieve. Harper’s recommendation 7 was that it be repealed (and a new power for the ACCC to create block exemptions be introduced). Despite Prof. Harper’s injunctions that this is old news and we should just, er, do it, the Government thinks it should wait and see what the Productivity Commission says. Anyone betting the Productivity Commission won’t recommend …?

The Government also supports conferring a power to grant block exemptions on the ACCC:

A block exemption removes the need to make individual applications for exemption. The exemption is granted if the competition regulator considers that certain conditions are satisfied: either that the category of conduct is unlikely to damage competition; or that the conduct is likely to generate a net public benefit.

A block exemption power that supplements the existing authorisation and notification frameworks will be helpful in establishing ‘safe harbours’ for business. Block exemptions will reduce compliance costs and provide further certainty about the application of the CCA. They are an efficient way to deal with certain types of business conduct that are unlikely to raise competition concerns, either because of the parties engaged in the conduct or the nature of the conduct itself.

So, in the interests of promoting competition, we are going to introduce a European-style power for the regulator to design the marketplace.


  1. Copyright Act s 44A.  ?
  2. The Government also said it would not proceed with the recommendation about second hand cars, in the interests of consumer protection and community safety.  ?
  3. Indeed, you should already be putting the finishing touches on your submissions in response to the Issue Paper since they are due on Monday!  ?

Google Books = fair use in USA

Just in time for the 2015 Copyright Symposium, the Second Circuit Court of Appeals has ruled that the Google Books Project is “fair use” of copyright and so not infringing.

Judgment here (pdf). Opinion authored by Circuit Judge Leval.

Eleanora of the IPkats first look here; Rebecca Tushnet focuses on the fourth factor discussion here. The “four factors” from §107 are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Before responsibility for copyright was transferred to the Department of Communications and the Arts, the Commonwealth Attorney-General had commissioned a study of the economic effects of the ALRC’s recommendation to introduce “fair use” into Australian copyright law.

The Authors Guild v Google Inc. (CA2 Oct 16. 2015 13-4829-cv)

Productivity Commission to review all IP laws

The Harper Review[1] recommended that the Government should direct the Productivity Commission to undertake an overarching review Australia’s IP laws.

The Treasurer and the Minister for Small Business have now announced that review.

According to the Harper Review:

an appropriate balance must be struck between encouraging widespread adoption of new productivity-enhancing techniques, processes and systems on the one hand, and fostering ideas and innovation on the other. Excessive IP protection can not only discourage adoption of new technologies but also stifle innovation.

Given the influence of Australia’s IP rights on facilitating (or inhibiting) innovation, competition and trade, the Panel believes the IP system should be designed to operate in the best interests of Australians.

The Panel therefore considers that Australia’s IP rights regime is a priority area for review. (emphasis supplied)

In reaching that view, the Harper Review flagged concern about entering into new treaties with extended IP protections.

The terms of reference state:

In undertaking the inquiry the Commission should:

  1. examine the effect of the scope and duration of protection afforded by Australia’s intellectual property system on:

    a. research and innovation, including freedom to build on existing innovation;

    b. access to and cost of goods and services; and competition, trade and investment.

  2. recommend changes to the current system that would improve the overall wellbeing of Australian society, which take account of Australia’s international trade obligations, including changes that would:

    a. encourage creativity, investment and new innovation by individuals, businesses and through collaboration while not unduly restricting access to technologies and creative works;

    b. allow access to an increased range of quality and value goods and services;

    c. provide greater certainty to individuals and businesses as to whether they are likely to infringe the intellectual property rights of others; and

    d. reduce the compliance and administrative costs associated with intellectual property rules.

Then follows a catalogue of 9 matters for the Commission to have regard to. These include the Government’s desire to retain appropriate incentives for innovation, the economy-wide and distributional consequences of recommendation and the Harper Review’s recommendations in relation to parallel imports.[2]

The Commission must report within 12 months.


  1. The Competition Policy Review, recommendation 6.  ?
  2. Rec. 13 and section 10.6 of the Competition Policy Review: i.e., repeal any remaining restrictions unless the benefits outweigh the costs and the objectives of the restrictions can only be achieved by restricting competition. Cue diatribe about “restricting competition” especially given the oft mouthed formula that IP rights rarely (if ever) restrict competition.  ?

Program formats and copyright

Channel 7 has lost its bid to get an interlocutory injunction against Channel 9’s show Hotplate.

Channel 7 claimed Hotplate infringes Channel 7’s copyright in the dramatic works consisting of the combination and series of incidents, plot, images and sounds that make up My Kitchen Rules:

  1. MKR Series 1, Episode 1;
  2.  the whole of MKR Series 1;
  3.  the whole of MKR Series 5; and
  4.  the whole of MKR Series 6.

Nicholas J found that Channel 7 had a reasonably arguable case, but did not agree with Channel 7 that it was a strong prima facie case. Then, his Honour considered the balance of convenience weighed in Channel 9’s favour.

Prima facie case

Nicholas J thought this might well cause Channel 7 some difficulties. At [15] his Honour said:

There may be a difficulty in framing the case in this way.  My understanding of Seven’s case is that it claims copyright in the dramatic work that constitutes the format for the MKR television program which was first reduced to material form in Series 1, Episode 1 (see Seven’s outline of submissions para 11). If that is correct, then one would expect subsequent episodes of MKR merely to reproduce the dramatic work (ie. the format) first seen in Series 1, Episode 1.  The alternative approach involves treating every subsequent episode of MKR as an original dramatic work that has its own original format.  This seems inconsistent with the way in which Seven has argued its case.  In any event, it is not necessary to explore this issue in any detail for present purposes.  In due course Seven will need to explain precisely how it puts its case.

Channel 9 contended that many of the key elements of MyKitchen Rules were common place and unoriginal. The makers of Hotplate, Endemol, also pointed to a catalogue of what it said were very substantial differences between the 2 shows:

(a) The Hotplate is based on professional restaurateurs, and established restaurant businesses, whereas MKR involves amateur cooks in their kitchens.

(b) The restaurants and contestants for The Hotplate were selected because they were varied examples of different restaurant styles and the best characters, not because they are from a particular State (as is the case for MKR) – as a result, two restaurants are in Sydney, one is in Brisbane, one is in Perth, one is in Mandurah (in Western Australia) and one is in regional Victoria.

(c) The restaurant businesses featured in The Hotplate focus on different cuisines in order to show different cooking styles, including Italian, Japanese, French, seafood, modern Australian and Asian fusion.

(d) In Round 1 of The Hotplate, the contestants are required to cook meals from their existing menu, and must be prepared to cook anything on the menu since they are not given advance notice of which two entrees, two mains and two desserts will be ordered by the judges, whereas in MKR the contestants select their own menu of one entree, one main and one dessert. The Hotplate shows the contestants preparing meals, but does not show them shopping for ingredients as for MKR.

(e) When their restaurant is featured, the contestants in The Hotplate wear what they generally wear in their day-to-day business – they are not provided with a branded apron as they are for MKR or for Masterchef (another well-known cooking program).

(f) In Round 1 of The Hotplate, the other restauranteur contestants provide their scores to the judges in a bill folder, but in Round 2 (after the restaurant makeovers), the other contestants must deliver their scores directly to the contestants whose restaurant is being featured on the night.

(g) The judges in The Hotplate give feedback to the contestants about everything from the ambiance and decor of the restaurant to the service to the overall menu to the specific dishes they serve – this is aimed at assisting the restaurateurs with how they can improve their businesses as a whole, not just the cooking. This is not an element of MKR since the program does not involve actual restaurant businesses.

(h) In Round 2 of The Hotplate, the contestants are given an amount of money to undertake renovations and makeovers of their restaurant’s furniture, colour scheme and decor in addition to updating of the restaurant’s menu. Again, this is not an element of MKR since the program does not involve the renovation or makeover of restaurant businesses. This information may be confidential to Nine. I have not had time to check while preparing this affidavit.

(i) In Round 3 of The Hotplate, the contestants cook meals from their newly renovated restaurants for diners. This is not an element of the MKR program since it does not involve restaurants or their diners.

Balance of convenience

Nicholas J accepted that Channel 7’s losses would be difficult to quantify. His Honour considered, however, that Channel 9’s losses would also be particularly difficult to quantify. The factor which appears to have tipped the balance, bearing in mind the problematic strength of Channel 7’s claim that its rights were infringed, was the disruption to Channel 9’s broadcasting schedule. 3 episodes of Hotplate had already broadcast and it was unrealistic to expect Channel 9 could simply resume where it left off, or start over again, if it successfully defended the infringement claim. At [41] and [42], his Honour said:

During the course of argument it was suggested by Senior Counsel for Seven that if Nine was restrained from broadcasting further episodes of Hotplate, it would be able to resume broadcasting them at a later date on the assumption that no permanent injunction was granted. I doubt that this would be as simple as the submission seemed to suggest. Presumably it would be necessary for Nine to re-broadcast the first three or more episodes. I think it would be difficult for Nine to re-establish the program’s momentum after it was abruptly halted by injunction and then “shelved” for however many months it takes to determine the proceeding and any subsequent appeal.

There is evidence from Ms Officer to show that Nine considers Hotplate to be a key piece of its programming that Nine has decided to broadcast in prime-time slots not only with a view to achieving high ratings for Hotplate itself, but also with a view to boosting the ratings of some of Nine’s other programs.

Seven Network (Operations) Limited v Endemol Australia Pty Limited [2015] FCA 800

Project home appeals

The Full Court has partially allowed Tamawood’s appeal, and denied Habitare’s appeal from Collier J’s findings about copyright infringement.

Tamawood designs and builds homes; Habitare is (or was) a developer. Habitare arranged for Tamawood to design some houses for a development it was working on. The plans were submitted to the local authority for, and received, planning approval. Tamawood and Habitare were unable to agree the basis on which they would go forward. Habitare decided to get Mondo Architects to draw up the building plans to carry the project forward and used Bloomer to build the houses. At first instance, Collier J found some of Mondo’s plans infringed, but others did not.

On appeal, the Full Court upheld Collier J’s ruling that Habitare’s licence to use the plans with planning approval terminated when Habitare decided not to proceed with Tamawood. This was because the basis of the licence was that Tamawood would not charge for preparing the drawings on the understanding it would build the houses. Use (ie., reproduction) of the plans outside those terms was unlicensed.

On appeal, Tamawood also successfully challenged Collier J’s conclusion that its copyright in “Stad 939 Conondale/Dunkeld”:

Stad 939 Conondale/Dunkeld
Stad 939 Conondale/Dunkeld

was not infringed by Mondo Duplex 1:

Mondo 1 Duplex with patio
Mondo 1 Duplex with patio

Two points of interest here. First, the Full Court was unanimous in holding that Collier J had erred by ascertaining whether Mondo Duplex 1 sufficiently resembled Stad 939 Conondale/Dunkeld and then considering whether or not there had been copying. The question of copying needs to be resolved first although, in doing so, the degree of resemblance may lead to an inference of copying.

Secondly, for Jagot and Murphy JJ, the degree of resemblance, Mondo’s access to Tamawood’s plans and the significant difference between Mondo’s plans before that access and after all contributed to a conclusion of copying. Their Honour’s then applied Eagle Homes v Austec to find reproduction of a substantial part on the basis that the copyright work could still be seen in the accused plans. For Jagot and Murphy J the changes in the floor plan were minor. At [168]:

The footprints of the duplexes are identical but for the addition of the patio at the rear of the Mondo Duplex 1 plans. The internal and other external differences all result from two changes – swapping the position of bedroom 1 with bedroom 2 and swapping the position of bedroom 3 with the living/entry space. All changes appear consequential on these two basic changes in location. The changes, however, are minor, in the sense that the overall relationship between the internal spaces and the exterior remain the same. ….

Greenwood J dissented on this point at [89] – [90], considering that the layout and traffic flows, shapes and proportions and relationships of the rooms and other spaces were sufficiently different. His Honour considered that the common placement of Beds 1 and 2 and associated wet areas along the external walls of the duplex rather than the party wall was rational and for obvious reason.

Otherwise, the Full Court affirmed her Honour’s ruling at first instance.

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCAFC 65

 

How much is that copyright in the power generation system

The Full Federal Court has allowed the Commissioner of Taxation’s appeal from Pagone J’s ruling allowing SPI Powernet a deduction for the value of its copyright in the plans, drawings and manuals for its electricity power generation network.[1]

SPI Powernet bought the assets of the Victorian electricity power generation and transmission line system when the Kennett government privatised the State Electricity Commission in 1997. It paid $2.5 billion. The assets included the intellectual property rights which included the copyright in some 100,000 drawings and plans which were critical to the operation and maintenance of the business and various manuals and software.

The purchase price was not apportioned amongst the various assets. Indeed the sale agreement specified that the purchase price was fixed notwithstanding that the components might be shown “collectively to have a different value.”

SPI Powernet sought to apportion the purchase price among the various asset classes and, in the case of the copyright, claimed depreciation in respect of a “unit of industrial property”. The Commissioner assessed the value of the copyright at “nil”. Pagone J allowed SPI Powernet’s appeal, finding that the value of the copyright was in the order of $171 million using the replacement cost methodology.[2]

The Full Court’s decision involves a number of procedural issues as well as substantive questions including the extent to which the Commissioner’s methodology could be challenged and his Honour’s exclusion of the expert’s written reports at first instance.[3]

The Full Court were agreed that the valuation exercise undertaken by the experts was misdirected. The question was what part of the purchase price should be attributed to the copyright, not what was the market value of the copyright. That caused two problems for the SPI Powernet parties.

One problem was the form of the purchase price: by specifying that it was a fixed price regardless of the value of the component assets, it meant that no cost could be attributed to a particular component. If you are drafting a sale agreement and including intellectual property rights in the assets and not apportioning the purchase price, be careful.

The second problem was that SPI Powernet, as the purchaser of all the assets to run a power generation business, would have a licence implied by necessity to use and reproduce the copyright in conjunction with the business. So, Greenwood J said at [185] and [186]:

…. Let it be assumed that SPI PowerNet had not acquired the copyright subsisting in the 105,410 documents. Could it be reasonably inferred in such a case, having regard to the terms of the Agreement under which SPI PowerNet acquired all of the relevant assets necessary to conduct the electricity transmission undertaking, that Power Net Victoria (the Victorian government owned corporation which formerly owned the copyright in the documents), would have been the source of an implied licence in favour of SPI PowerNet to use all of the documents in connection with that undertaking in a way which included exercising any and all rights falling within the rights comprised in the copyright? The answer to that question seems plainly enough yes, in which event any exercise of any of the rights subsisting in the copyright would have occurred with the licence of the owner of the copyright.

Fourth, in those circumstances, it is not necessary to undertake a timebased analysis of the value of work which would have been necessary to recreate the 105,410 documents in a way which could have expressed the information contained in those documents in a noninfringing form. Such a valuation exercise does not aid or inform the statutory task under s 124R(5). I respectfully disagree with the finding of the primary judge at [33] that had the copyright not been acquired, SPI PowerNet would have had to create the field of documents in which copyright subsisted in a way which conveyed the same information but in a noninfringing way to enable the business to function.

and Edmonds J said at [102]:

If an actual acquisition by SPANT of all of SPI PowerNet’s assets as at 19 October 2005 had not included the copyright, there can be no doubt that by reason of the notion of “necessity”, as explained by McHugh and Gummow JJ in [Byrne v Australian Airlines Limited][byrne] (1995) 185 CLR 410 at 450, SPANT would have enjoyed an implied licence to copy and modify the drawings and documents in any event: see Copyright Agency Limited v State of New South Wales [2008] HCA 35; (2008) 233 CLR 279 at 305–306 [92] per Gleeson CJ, Gummow, Heydon, Crennan and Kiefel JJ, and the other cases there cited (also [81], [82] and the cases cited); see too Acohs Pty Ltd v Ucorp Pty Ltd and Anor [2012] FCAFC 16; (2012) 201 FCR 173 at [145].

Commissioner of Taxation v AusNet Transmission Group Pty Ltd [2015] FCAFC 60 (Kenny, Edmonds and Greenwood JJ)


  1. The case before the courts was actually 2 cases: 1 concerning SPI Powernet’s claim for the depreciation; the second by its parent when the parent adopted consolidated group accounts including SPI Powernet.  ?
  2. The valuation experts agreed there were three accepted methods to value the copyright: an income approach, a market value approach and a cost approach. Because there was nothing income generated from exploiting the copyright nor a market for the copyright, SPI Powernet’s experts applied the “replacement cost” method – what it would cost in time and effort to recreate the drawings etc. from scratch. See e.g. Pagone J at [24].  ?
  3. The latter of which led to the Full Court quashing his Honour’s decision on that part of the case and remitting it for reconsideration by Pagone J on the basis at [85] and [101] that the exclusion of the written reports meant it was impossible for the Full Court to evaluate his Honour’s reasons for accepting the views of SPI Powernet’s experts over the Commssioner’s expert on what all parties considered the fundamental issuel  ?

Blocking injunctions – the Bill

The Commonwealth Government has introduced into Parliament the Copyright Amendment (Online Infringement) Bill 2015. This bill will implement the second (or third) of the Government’s online infringement proposals.

The Bill would insert a new s 115A into the Act. Under s 115A, a copyright owner would have a right to apply to the Federal Court for an injunction against a carriage service provider[1] requiring the carriage service provider to take reasonable steps to block access to on online location outside Australia the primary purpose of which is to infringe copyright (whether in Australia or not).

The EM is at pains to stress that the website must be outside Australia – otherwise the copyright owner could sue directly – and its primary purpose must be copyright infringement. Thus, the EM says services like Youtube, iTunes and so on would not be exposed to the risk of injunction.

The bill does not prescribe what steps would be reasonable (to attempt) to block access, but presumably guidance may be sought from English decisions on this issue.

In deciding whether or not to grant the injunction, the Court will be directed to take into account a range of factors including, in particular, the flagrancy of the infringement and the proportionality of blocking access to the extent of the infringement.

Provision is also made for the person operating the website to be, or become, a party to the proceeding and to apply after an injunction has been granted for it to be rescinded or varied.

The carriage service provider will be liable for costs only if it enters an appearance and takes part in the proceedings. The bill does not make provision for whom should bear the costs of implementing and maintaining the injunction.

The injunctions provided by the English courts include a mechanism for copyright holders to “update” the webiste addresses so that, if the website operator changes the URL, it is an administrative exercise to notify the ISP. The Bill does not appear specifically to contemplate this, and it is unclear whether the Federal Court would, or should, adopt such a mechanism.

In addition to discussion of blocking methods, the Cartier[2] ruling in England includes an interesting discussion of the costs of such applications and also the costs incurred by the ISPs in implementing the injunctions. Apparently, after the initial cases, such an application typically cost the copyright owners around £14,000 with a further fee of around £3,600 per year per website for monitoring. The costs to ISPs reported by the judge ranged from a “low four figure sum per month” to a “low six figure sum a year”.

The Cartier case concerned websites infringing trade marks, not copyright. One might wonder whether the Australian law should also extend to trade marks?

The Senate has referred the Bill to its Legal and Constitutional Affairs committee for review. There is plainly not much to discuss about the bill, as the committee is due to report back by 13 May 2015 and you must make your submissions, if any, by 16 April 2015.

Copyright Amendment (Online Infringement) Bill 2015 (pdf)
Explanatory Memorandum (pdf)


  1. For you and me, that’s Telstra, Optus, iiNet/TPG, Foxtel etc., but real lawyers should go via s10 to here (take a tent and all necessary provisions and we’ll see you in several years).  ?
  2. Also known as Richemont after the third claimant.  ?

Three strikes in Australia

The Communications Alliance has published a draft Code for a copyright notice scheme in Australia.

The draft Code will apply to residential, fixed line accounts only. It appears to be intended to apply to all ISPs of (an as yet to be determined) minimum size. The scheme does not involve ISPs terminating, suspending or throttling accounts, but leads up to the rights holders potentially making applications for preliminary discovery to identify egregious account holders. Participation in the scheme, however, does not preclude a rights holder from taking infringement proceedings at any stage.

The draft Code envisages 3 stages of notice:

  1. an Education Notice;
  2. a Warning Notice; and
  3. a Final Notice.

A rights holder who alleges an infringement would send a notice in the agreed form to the relevant ISP which would then issue a notice at the appropriate level to the account holder. The ISP must not at any stage disclose any personal information “including the identity or any contact details of an Account Holder at any stage of the copyright notice scheme, unless there is a court order or written permission from the Account Holder”.

Each type of notice will include, amongst other things, details about the alleged infringement and information where legitimate content can be obtained.

A Final Notice would be issued only within the 12 months from issue of the most recent Education Notice. If more than 12 months has passed, the process resets to the Education Notice.

If a Final Notice is sent, it will include a warning that the Account Holder may be subject to court proceedings including an application for preliminary discovery. An Account Holder who receives a Final Notice may challenge it before an Adjudication Panel on payment of a $25 fee. Until the challenge is resolved, the Account Holder must not be included in “the Final Notice List”. The costs of the Adjudication Panel are otherwise to be borne by the rights holders.

Rights holders can seek access to each ISP’s Final Notice List – which must be provided in a way that does not include any personal identification material and, having received it, the rights holder may apply to “a federal court or tribunal” for preliminary discovery and the ISP must abide by the outcome.

It is envisaged that the Code will operate for 18 months and then be subject to an evaluation.

The draft has been prepared through consultations involving:

  • on the ISPs side: Telstra, Optus, iiNet, IP Star, M2, Verizon and Vodafone Hutchison; and
  • on the rights holders side: APRA AMCOS, ARIA, Australia Screen Association, Copyright Agency, Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow Limited and World Media.

The implementation of the scheme will be overseen by a Copyright Information Panel, consisting of representatives of the ISPs, rights holders and “the Consumer Organisation”. The Copyright Information Panel will also be responsible for appointing the Adjudication Panel.

In addition to the size of ISPs who must participate, the press release notes that the parties are still to agree on the funding arrangements – i.e., who will bear the costs of the notices and administration – and how many notices an ISP may have to handle in any given month.

The publication of the draft reflects the ultimatum from the Attorney-General back in December.

The draft is now open for public comment until 23 March 2015. The intention is that, once finalised, the draft will be submitted to the Australian Communications and Media Authority for registration as an Industry Code under s 112 of the Telecommunications Act 1997.

Draft Code here (pdf).

Press release here.