Australian ISPs Favour File Sharing Notice Scheme

As reported by TorrentFreak, Australia’s largest Internet Service Providers have advanced a detailed proposal to combat illegal file-sharing.

The proposal includes the introduction of a warning letter process not dissimilar to the controversial anti-piracy laws operating in New Zealand.  The three strikes law in New Zealand, which commenced operation on the 1st of September 2011, requires Internet companies to issue warning notices to users suspected of illegally downloading copyrighted content if a rights holders requests it.

Forty two notices have already been generated by the Recording Industry Association of  New Zealand (RIANZ), 35 relating to the download of songs by Rihanna, 6  for Lady Gaga songs and 1 for Taio Cruz.  Five infringement notices have been issued for the download of songs by Rihanna.

The details of the Australian proposal are contained in a paper titled ‘A Scheme To Address Online Copyright Infringement.’ The proposal is a joint proposal forged by the Communications Digital Alliance and ISPs including Telstra Bigpond, iiNet, Optus, iPrimus and Internode. TPG, Dodo and Exetel are not signatories to the scheme.

A fundamental difference between the New Zealand scheme and the Australian ‘discovery and notice system’  is that the Australian model aims to educate Internet users whose connections are detected as being engaged in  infringing activity via peer to peer (P2P) file sharing.  There will be no suspensions or disconnections of users.

The following are some features of the proposed Australian scheme:-

The responsibility for monitoring file-sharing networks will rest upon rights holders, whose infringement detection technology systems and processes will be audited before they are accredited and deemed eligible to participate in the scheme.

Within 14 days of a potential infringement being detected, the Rights Holder may elect to forward a Copyright Infringement Notice to the relevant ISP outlining details of their entitlement, the copyright work, IP address involved and the time and date of the alleged infringement.

Within 14 days of receiving a notice from a rights holder, if the ISP is able to match the IP address to an Internet service and an account holder, the ISP will send an ‘Education Notice’ to the Customer containing prescribed information.  The notice will not inform the Account Holder of the content of the material shared.

The Notice will contain information educating users as to where they can obtain legal content. The account holder then has a  21 day grace period to query or dispute the notice with the Copyright Industry Panel. For example the nominated Account Holder may raise the fact that the detected activity wasn’t undertaken by them.

The Copyright Industry Panel will be a body established and funded by ISPs and Rights Holders which will operate as an appeals process for account holders querying the validity of notices can challenge notices and seek further information.  It will also perform an education function for internet users.

 After receiving an Education Notice, a 12 month period will follow.  If during this period a subscriber is detected engaging in infringing activity, the rights holder will send a Copyright Infringement Notice notice to the ISP, specifying the content shared.

After an Account Holder has received an Education Notice and 3 Warning Notices, the ISP will match the IP address from a database it sets up, and send a Discovery Notice to the Account Holder.  The Notice will inform the Account Holder that the Rights Holder is entitled to apply for access to the Subscriber’s details by way of a preliminary discovery or subpoena application, in addition taking  direct copyright infringement action against the Account Holder.

The purpose of the Copyright Infringement Notice is to note that the subscriber has not responded to previous communications and rights holders have been informed of this fact.  It is at this stage rights, rights holders would have to decide whether to get a court order to obtain the identity of the account holder in order to sue them for infringement under the Copyright Act 1968 (Cth).

A belief is expressed in the Report, based on limited information available from overseas schemes, that the majority of users are capable of and do positively change their online behaviour based on having received copyright notices.

The scheme will be trialled for 18 months, after which an evaluation will be undertaken in relation to it’s efficacy in addressing copyright infringement by promoting responsible user behaviour, factoring in the relative costs, benefits and impacts to ISPs and Rights Holders.

One of the main reasons posited for Australians engaging in torrenting popular content is that accessing content through legal channels means users having to wait months on account of delayed release schedules. This brings into question the value of the educational information on where to obtain legal content as much of the content downloaded by Australians is simply either not available at all or not after significant delays.

It is possible that infringement notices, DRM and other irritations users face in accessing legal content such as region restrictions and advertisements may only serve to increase unauthorised activity.  Sophisticated users may also start using VPNs and other anonymous services to avoid detection.

Content owners have been lobbying hard for change and the compromises made by ISPs could be seen as a temporary means of avoid the far more drastic measures implemented in other countries to prevent online file sharing.







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