16 December 2011

On the eve of High Court hearings in Roadshow v iiNet (transcripts here, here and here), the 5 major ISPs in Australia (Telstra Bigpond, Optus, iiNet, iPrimus and Internode) released a proposal (pdf) for dealing with (illegal) file sharers and other online copyright infringers.

Under s 116AG of the Copyright Act, the remedies against an ISP (which is a carriage service provider) for infringing materials transmitted over its network may be restricted to an injunction requiring it to terminate a subscriber’s account or to take reasonable steps to disable access to an online location outside Australia provided the ISP complies with the requirements in s 116AH. Similar limitations on the remedies available are imposed in respect of ISPs in the other categories. One of the conditions in s 116AH is that the ISP had adopted and reasonably implemented a policy for termination of the accounts of repeat infringers in appropriate circumstances.

The proposal can be seen as intended to address that requirement.

The proposal refers to the large amounts of lost revenues often claimed by the copyright owners from illegal activity online. It also draws attention to evidence that large proportions of infringers do not engage in infringing conduct after receiving a warning that their activity is infringing.

Accordingly, the proposal puts forward a scheme in which:

1. a copyright owner may send a notice alleging infringing activity to an ISP which will then send its subscriber, if it can match a subscriber to the information provided by the rights holder, an education notice;
   1. a 21 day “grace period” will follow to allow the subscriber to seek legal advice or query the notice with a proposed Independent Panel or act on the notice;
2. after the expiry of the 21 day “grace period”, the rights holder may send a further copyright infringement notice to the ISP if the subscriber is still engaging in the conduct or some other infringing conduct relevant to the rights holder and the ISP will send the subscriber, if it can match a subscriber to the information provided by the rights holder, a Warning Notice;
   1. a 21 day “grace period” would apply for each Warning Notice as well
3. if, in any given 12 month period, the ISP has issued to the same subscriber an Education Notice and [three] Warning Notices and, presumably, receives another allegation against the subscriber, the ISP will send the subscriber a Discovery Notice and, if the conduct is still continuing or no objection has been lodged with the Independent Panel after 21 days, the ISP will inform the rights holder that the subscriber has not addressed matters after receiving the [third] Warning Notice and the rights holder may apply for preliminary discovery or a subpoena to obtain the subscriber’s details and take direct action against the subscriber for copyright infringement.

The [three] in square brackets is how it is presented in the proposal, presumably to indicate this is an aspect they are willing to negotiate.

A feature of the proposal is its proposal for the institution of a Copyright Industry Panel to prepare and disseminate educational material and operate an “appeals” process whereby subscribers can dispute allegations of infringement.

The proposal points out that setting up the systems to implement this (or presumably any) system to deal with the problem will be expensive and, having regard to the enormous extra revenue copyright owners claim they stand to gain, they should bear some part of that cost.

The proposal is planned to operate for 18 months to evaluate how it works.

It remains to be seen how acceptable all this is to the copyright owners (which in turn may well depend on who “wins” the Roadshow appeal). The Australian Content Industry Group, apparently representing music and film copyright owners such as APRA-AMCOS, reportedly rejected it out of hand.

Except perhaps in the case of ISPs hosting third party websites with infringing material or providing “location information” tools to the sites of third parties who have infringing content and, maybe, some caching activities, it is not immediately clear how the rights owner will identify which subscriber it wants to get an Education or Warning Notice sent to.

Also, it is not clear on my first reading whether the Education Notice and the 3 Warning Notices in any given 12 month period must be sent by the same copyright owner in respect of the same infringement (e.g. the one video on a hosted website) or, presumably, may be generated by different rights holders in respect of the same or different activity?

Communications Alliance Ltd A Scheme To Address Online Copyright Infringement (An Australian Internet Service Provider (ISP) Proposal) (pdf)