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Friday, 11 March 2011 15:52

IIA to fast track development of copyright code of conduct

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The Internet Industry Association (IIA) is to start work immediately on a copyright code of practice for Internet intermediaries, including ISPs, search, hosting and social media providers.

IIA CEO, Peter Coroneos, said: "Having closely reviewed the recent decision of the Full Federal Court [in the movie studios appeal against the judgement in their copyright action against iiNet], we've concluded it's both necessary and appropriate to develop a code of practice to give a range of Internet intermediaries greater certainty around their legal rights and obligations."

He added: "The iiNet case has provided us with welcome guidance on where responsibilities should begin and end, but falls short in defining reasonable steps intermediaries should take in responding to allegations of infringement by their users. The code will address this gap."

The IIA's initiative was welcomed by the movie studios' representative body, AFACT, which issued a statement saying: "The IIA, on behalf of its members, has finally recognised that ISPs must play a role in preventing online copyright infringement. We said last week following the judgement of the full Federal Court that its decision provided a roadmap for ISPs to deal with repeat infringers on their network. The IIA have agreed that the judgement offers guidance."

Any industry code would, indirectly, have some legal standing. In the wake of the initial iiNet judgement Blake Dawson lawyers Lisa Ritson and Anita Cade commented: "The Copyright Act has since 2001 required a court considering the question of authorisation liability [for breach of copyright] to consider whether the person complied with any 'relevant industry code'...We can...expect copyright owners to use the case as leverage in lobbying government for the introduction of a code of practice for ISPs."

The issue of a copyright code has long been a source of friction between IIA and AFACT. AFACT claimed that it had tried without success to develop a copyright code of conduct for ISPs with the IIA in 2007. Coroneos told Exchange at the time that IIA had engaged in the discussions in good faith but AFACT had failed to respond to the concerns it had raised.

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The two had also been developing a code that would have required ISPs to take down material they hosted that breached copyright, but Coroneos said that AFACT had lost interest in this and had instead pushed to have the Copyright Act amended to reflect the US Free Trade agreement. He re-iterated this last year after the judgement in the iiNet case had been handed down.

In tandem with Code development, the IIA will renew its legislative push to have the safe harbours in the current Copyright Act extended to cover intermediaries beyond carriage service providers.

"The 2005 (US/Australia Free Trade Agreement) amendments to the Act failed to deliver Australia equivalent protections that exist under US law regarding who is eligible for safe harbour protection. Here, it is only carriage service providers such as ISPs who qualify," Coroneos explained.

"This has left search providers, social network media, universities, auction sites, hosting and cloud services, corporate networks and others exposed to potential liability for the infringing acts of their users. This serious omission impacts on the risk position of such players and impedes innovation and investment in the digital economy."

He noted that the Federal Attorney-General had recently reopened consideration of this area and said that IIA would "be making the appropriate representations as a matter of priority."

Coroneos repeated comments made by iiNet CEO, Michael Malone that the main reason for rampant copyright infringement remains the lack of an appropriate legal means of acquiring content.

Coroneos said he hoped this renewed push but by the IIA would also provide a stimulus for the development of new business models aimed at giving Australian Internet users in Australia access to a wider range of legal, affordable, compelling content.

"Market failure remains a core contributor to the infringement problem. If users have access to more and better content, when, where and in the form they choose to consume it, and at a realistic price, we're quite sure the motivation for infringement will decline."

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