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Australian ISPs propose copyright infringement notice scheme

November 25, 2011

By Colin Mann

Australian telco industry body Communications Alliance and five of the country’s largest Internet Service Providers (ISPs) have unveiled a scheme aimed at combating the growing problem of online copyright infringement.

The scheme is designed to encourage a sustained and positive change in the behaviour of Internet users who engage in online activity that may be an infringement of copyright laws and potentially illegal under the Copyright Act 1968, typically via peer-to-peer (P2P) file sharing or unauthorised content downloads.

The proposed education-based Notice Scheme stems from discussions held during 2011 between ISPs, the Federal Government and ‘Rights Holders’ – representatives of the movie, music, software, gaming, publishing and other sectors who hold copyright over material that can be accessed online. While those discussions are ongoing and final agreement is yet to be reached, the ISPs have outlined their proposal in a discussion paper available at, to further the broader debate on online copyright issues.

The Scheme would require ISPs – in response to evidence provided by Rights Holders – to forward education and warning notices to customers whose Internet accounts have been detected undertaking activity that might infringe copyright laws.

The proposed Scheme has a strong emphasis on educating consumers – many of whom may not be aware that their online activity could be illegal. It is also designed to assist Rights Holders to protect their copyright in cases where internet users persist in improper activity despite repeated warnings.

The proposed Scheme does not provide for termination of consumers’ Internet accounts, nor for any punitive sanctions to be imposed on customers by ISPs; and gives consumers the right to appeal if they receive a notice but believe they have not done anything improper.

The proposal was developed by Communications Alliance and ISPs including Telstra Bigpond, iiNet, Optus, iPrimus and Internode, with collaboration by AAPT, Ericsson Australia and the Internet Industry Association (IIA).

iiNet has previously been taken to court by the Australian Federation Against Copyright Theft (AFACT) over movie piracy of its subscribers. AFACT has since lost twice in the Federal Court and the Full Federal Court, respectively, but has appealed to the High Court. The hearing is set to occur in early December.

Communications Alliance CEO John Stanton said the industry proposal was a positive initiative by ISPs to address a complex and contentious set of issues that society had been struggling with for years. “We believe the Notice Scheme can greatly reduce online copyright infringement in Australia, while protecting consumer rights, educating consumers about how to access legal online content and helping Rights Holders to protect their rights,” he stated. “Equally important is the need for Rights Holders to ensure that consumers have access to legal and affordable content online, to reduce the motivation to source content in ways that might be illegal.”

Australian consumers’ ability to legally access content in a timely and affordable manner varies according to the content type (e.g. release of TV programmes and movies in Australia can lag months behind US releases). This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and breaches of copyright laws.

The Scheme proposed by ISPs would be undertaken on a trial basis over an 18 month period and is designed to be implemented rapidly and cost-effectively. The trial would be followed by an independent evaluation of its effectiveness, including whether it produced a real change in consumer behaviour and whether the Scheme should be continued in its initial form or modified for improvement.

Stanton said the evaluation would also be informed by the growing body of international experience in other jurisdictions where varying types of online copyright schemes were being implemented, such as in the UK, New Zealand, Canada, France and the USA.

Stanton said the proposal by ISPs would require further consultation with Rights Holders, consumer representatives, the Federal Government and the broader ISP sector before full details and an implementation timetable could be finalised.

Issues for further discussion include:

  • How to fairly apportion the costs of establishing and operating the scheme between ISPs and Rights Holders; and
  • The creation of a proposed Industry Panel that would be responsible for making educational material available to consumers, and dealing with queries or appeals from consumers who receive education or warning notices but believe they might not be responsible for the internet activity that has been detected.

“We look forward to continuing the discussions with Rights Holders, consumer representatives, the broader ISP community and the Federal Government, then to launching an agreed scheme that is that is efficient, fair and cost-effective for all parties, particularly consumers,” Stanton concluded.



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