Industry told to create piracy code by April with copyright infringers to escape harsh penalties



The Government has shunted the onus of tackling piracy back to the copyright holders giving them 120 days to agree a “industry code” before they look to pass any legislation, after an extensive consultation period with industry.

Today Communications minister Malcolm Turnbull and Attorney General George Brandis issued a joint release announcing the move, as well as planned changes to the Copyright Act to allow rights holders to ask internet service providers to block access to websites operated outside Australia which give access to their content unlawfully.

In a letter to “industry leaders” today the ministers say the code must be registered with the Australian communications and Media Authority (ACMA), and include a “process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content”.

The move effectively puts the onus on content rights holders, whilst stopping short of introducing stiff penalties for offenders which had been proposed, including slowing down internet speeds, and introducing fines.

If the industry cannot agree on a set of standards  in 120 days the government will look to legislate, whilst any measures imposed now will be looked at again in 18 months to assess their effectiveness.

Yesterday a study by consumer group Choice indicated most people say they pirate because content is either too expensive to access, or airs too far after other countries, issues which may in part be addressed by the forthcoming slew of subscription video on demand services such as Stan, Netflix and Presto.

This was addressed in the ministers’ release: “The issue of affordability and accessibility of legitimate content is a key factor in reducing online copyright infringement. The Government welcomes recent action by content owners and expects industry to continue to respond to this demand from consumers in the digital market.

“These measures, to be introduced in early 2015, follow extensive consultation with industry and consumer groups and evaluation of submissions to the Online Copyright Infringement Discussion Paper.”

Foxtel’s CEO Richard Freudenstein welcomed the announcement, saying: “The introduction of legislation will have two main effects. First, it gives us tools to deal with the operators of pirate sites. The people who run pirate sites are criminals who steal content from creators and profit from their theft.

“Secondly, it will allow us to reach out to people who download illegitimate content to educate them that what they are doing is wrong and that there are many legal options they could take. The fact that there will be legislation will itself be an important factor in sending the message that piracy is wrong.

“We look forward to working with the Government and other industry participants to develop a workable regime.”

The letter to the industry:

Over the course of this year, we have been discussing the best ways to reduce the high levels of online copyright infringement in Australia. We thank you for your input and co-operation in this process of consultation.

The Government recognises that addressing online copyright infringement is a complex task with shared responsibility between rights holders, internet service providers (ISPs) and consumers. We also appreciate that this is a dynamic issue, affected by changing technology and consumer behaviour. As such, the Government has sought the least burdensome and most flexible way of responding to concerns about online copyright infringement, while protecting the legitimate interests of the rights holders in the protection of their intellectual property.

The Government understands the unique position of ISPs with respect to assisting rights holders to identify and communicate with people alleged to have infringed copyright. We recognise that, for various reasons, agreement has not been reached between rights holders
and ISPs on efforts to address online copyright infringement. To overcome this, the Government asks that ISPs and rights holders develop a code with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the  Telecommunications Act 1997 (the Telecommunications Act).

We note that the existence of a code will be central to a court’s assessment of whether a party has taken “reasonable steps” under sections 36 or 101 of the Copyright Act 1968 (the Copyright Act) for the purposes of authorisation liability.

We expect the code to address the following objectives:

  • that ISPs take reasonable steps (including the development of an education and warning notice scheme) to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the
  • informing consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content
    providing appropriate safeguards for consumers
  • fairly apportioning costs as between ISPs and rights holders
  • ensuring smaller ISPs are not unfairly or disproportionately affected, and
  • include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices.Any code must be sustainable and technology neutral. It should be educative and attempt to
    address the reasons that people are accessing unauthorised content. Consumer interests must be given genuine consideration in your negotiations.

If an industry code is not agreed by 8 April 2015, the Cabinet has determined that the Government will prescribe binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act, on such terms as agreed by us.

The Government has also decided to introduce legislation that will enable a court to order the blocking of overseas hosted websites that can be shown to be primarily for the purpose of facilitating online copyright infringement.

The issue of price and availability of legitimate content in Australia was a key factor raised in the majority of submissions to the Online Copyright Infringement Discussion Paper. The Government notes recent efforts by the industry in this area, and expects industry to continue to respond to this demand from consumers in the digital market.

The Government accepts that there is no single proven course of action to reduce levels of online copyright infringement and that as technology and consumer behaviour continues to change the options to respond to online copyright infringement will likely have to change.

We will be working closely with other countries to get a better understanding of levels of online copyright infringement and the effectiveness of different approaches to respond to the problem. In light of this, the Government will review the effectiveness of efforts to reduce
online copyright infringement within 18 months of a code or standard coming into operation. We strongly urge all parties to approach these discussions in good faith and in keeping with the common goal of reaching an agreement, without delay. It is better that this exercise be undertaken consensually, rather than prescriptively.

We have also written to rights holders, ISPs and consumer groups to inform them of the Government’s decision.


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