Online Copyright Infringement – Draft Code
Overview
A new industry code is due to come into effect by 1 September 2015 under which ISPs will send users
who infringe copyright up to three warning letters about their behaviour. After the third letter ISPs will
facilitate a preliminary discovery application (providing contact and other details) if a rights holder
wishes to pursue legal action against the user.
Background
The government announced early in 2014 that it would focus on measure to reduce online copyright
infringement. A discussion paper followed, with proposals:
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to extend authorisation liability (where an intermediary is found liable for the infringements of
its users);
for injunctive website blocking; and
to extend safe harbours.
While government has indicated ongoing support for the second two proposals, the extension of
authorisation liability was widely criticised. In its place the government announced that rights holders
and ISPs would collaborate on an industry code.
The draft code was released for public consultation on 20 February, with submissions due by 23 March.
The code is scheduled to be submitted to the Australian communications and Media Authority (ACMA)
for registration by 8 April 2015. If no code can be agreed on the government has indicated it will look to
legislative solutions.
Legislative structure
The code will be registered by ACMA under the Telecommunications Industry Act 1997 (TIA Act). ACMA
can direct ISPs to comply with the code, and there’s a civil penalty provision (s122) for non-compliance.
The code is also intended to be the relevant industry code for the authorisation provisions of the
Copyright Act 1968 (ss36(1A)(c) and 101(1A)(c))1 which means that ISPs that don’t comply with the code
are likely to be found liable for authorising the infringements of their users.
1
When determining authorisation the courts will consider (see ss36 & 101 Copyright Act):
(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including
whether the person complied with any relevant industry codes of practice.
The administration, operation and evaluation of the code will be overseen by a new Copyright
Information Panel (CIP). The CIP Executive Committee will comprise 2 representatives from rights
holders, 2 representatives from ISPs and 1 consumer representative.
Scope
For consumers the scheme will only apply to residential fixed internet accounts.
For ISPs the code will apply to carriage service providers (see s87 TIA act) which provide a certain
number (still to be decided) of residential fixed internet services.
For rights holders the scheme will apply to the copyright owner, exclusive licencee or agent working for
the copyright owner or licencee; who uses an audited process to detect infringements, has provided an
indemnity to the ISP (details to be finalised) has provided a single contact point, is listed on the register
of rights holders and is compliant with the funding arrangements.
Operation
Rights holders will use an audited process to detect online copyright infringement. They will then send a
notice to the ISP identifying the IP address alleged to infringe copyright.
The ISP will then use best endeavours to match the IP address, and if they cannot they will notify the
rights holder. If address is matched the ISP will send the account holder an ‘education’ notice.
If an ISP receives a second notification for the account holder (from any rights holder) then they will
send the user a ‘warning notice’ and if a third notice is received the account holder will receive a ‘final
notice’.
The notices will inform the account holders of the alleged infringement, the consequences of further
infringements, where to find further information and legal sources of content.
An account holder can challenge a final notice before the independent adjudications board (to be
established by CIP).
If an account holder has received 3 notices in a 12 month period (and either hasn’t challenged or has
been unsuccessful in challenging) then the ISP will add their IP address details to a ‘final list’ that can be
requested (once a month) by rights holders.
ISPs will then facilitate an expedited preliminary discovery process if a rights holder lodges an
application with a federal court or tribunal for the account holder’s details.
The following diagram taken from the draft code illustrates the processes.
Objectives2
The objectives of the Code are to:
(a) operate as an important part of a range of measures designed to:
(i) reduce the incidence of online copyright infringement by Australian internet users;
(ii) improve knowledge of Australian internet users as to which online activities can
constitute copyright infringement and when particular practices may be infringing;
(b) create a copyright notice scheme that works in concert with other initiatives that together
are designed to dissuade Australian internet users from engaging in online copyright
infringement. These initiatives include continuing efforts of Rights Holders to ensure timely and
ready availability to Australian consumers of lawful content alternatives; and
(c) provide information to Australian consumers as to how to identify and readily access
lawful available content alternatives
Evalution
2
From Draft Code 1.4.1, emphasis added
The CIP will evaluated the scheme against the objectives and other criteria within 18 months of
commencement.