A new code of practice, intended to help drive down the rate of online copyright infringement, or ‘Internet piracy’, in Australia has been formally submitted for registration by the Australian Communications and Media Authority (ACMA).
The document is called the ‘Copyright Notice Scheme Code 2015 and has been published by Communications Alliance. The full draft can be found here.
It is the result of three months’ work by ISPs, consumer representatives and a broad alliance of rights holders, who were given a tight deadline when Communications Minister Malcolm Turnbull announced just before Christmas that he expected the industry to develop a code or have one imposed upon it.
But it is incomplete. Communications Alliance CEO John Stanton said: “There are still some commercial details – including elements of the scheme funding arrangements – to be finalised.”
ISPs have long argued that the rights holders should pay, as it is they who will benefit from reduced piracy. The rights holders have argued that the ISPs should pay, because it is their networks that are being used to facilitate piracy. The fact that the code is being released without this basic issue being resolved must be a concern.
But we do now have a draft code, which Stanton said takes into account considerations from more than 370 public submissions received in response to a call for public comment on an initial draft code in February and March.
The ACMA will now consider whether to register the code, which will apply to approximately the largest 70 Australian ISPs.
The code creates a ‘copyright notice scheme’ through which residential fixed Internet users alleged to have infringed copyright online – their activities will be monitored by ISPs – will receive an escalating series of infringement notices “designed to change their behaviour and help steer them toward lawful sources of content.”
Stanton said the scheme has a strong emphasis on public education and does not contain explicit sanctions against Internet users, but 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.
“The scheme contains strong safeguards against any threat to the privacy of Internet users and allows an account holder who receives three infringement notices in a 12 month period to have the validity of the allegations independently reviewed,” said Stanton.
Amendments made to the Code in response to public comments include:
The removal of a proposed $25 fee that would have been payable by Internet users in order to challenge and obtain an independent review of an infringement notice.
Stronger consumer representation on the Copyright Information Panel (a body that will oversee the operation of the notice scheme and run a web site to help educate the public on infringement issues).
Stanton praised the dedication and cooperative spirit of rights holders, ISPs and consumer representatives who developed the code in the short three month timeframe the Government allowed: “The finished product must meet the approval of the ACMA, but all stakeholders believe that the code can be an important tool toward the shared objective of reducing online copyright infringement in Australia.”
Stanton said the operation of the code and the notice scheme are not affected in any way by the recent Federal Court decision on preliminary discovery in the Dallas Buyers Club case.
Rights holders involved in the code’s development were 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 Australian Communications Consumer Action Network (ACCAN) represented consumer interests during the Code development and further advice was received from the Internet Society of Australia.
The effectiveness of the code will be independently evaluated 18 months after its commencement. We are not told who will do this.