If the Australian Communications and Media Authority (ACMA) approves the final version of an industry self-regulating Code to pursue copyright infringement (the Copyright Notice Scheme Code 2015) currently under its review, copyright owners will be able to work alongside certification bodies and ISPs (such as iiNet) to identify and contact alleged infringers.
The Copyright Code adopts a model commonly called a graduated response model that is used in certain jurisdictions in Europe, North America and Asia. The basic idea is that ISPs send a series of notices to alleged infringers before legal action is taken and, if it is taken, streamline the court process for copyright owners.
The Copyright Code would assist copyright owners to overcome certain challenges encountered in the Dallas Buyers Case (as we earlier discussed here in detail), where copyright owners faced stern resistance from ISPs, most notably iiNet, and needed to justify special technology used to identify alleged infringers. Despite these developments, in practice the Copyright Code seems to lack a whole lot of punch.
How would the Code work for everyday copyright infringement?
Under the proposed Copyright Code, a copyright owner can require Australian ISPs to send a notice to alleged copyright infringers specifying the alleged copyright infringement. If three copyright infringement notices (let’s call them strikes!) are issued to a user within 12 months and the copyright owner decides to take court action, then the relevant ISP must aid the copyright owner to identify the alleged infringers.
The first step would be that a copyright owner identifies the IP address of an alleged copyright infringer and seeks approval from a certification body that the allegation is reasonably founded. If so, the copyright owner then provides the ISP with an infringement report which the ISP uses to identify an account holder based on the IP address.
If the account user has no strikes in the previous 12 months, she’ll receive an ‘Education Notice’ (strike 1). If she’s already had one strike, then she’ll receive a ‘Warning Notice’ (strike 2), and if she’s had two strikes, then she’ll receive a ‘Final Notice’ (strike 3) which will require the user to give some form of acknowledgement of the notice, such as signed receipt of a letter.
Three strikes and… well, you’re not out!
And just how final is a Final Notice? Not very! First, an account holder can dispute any notices to an independent panel. Second, the copyright owner can obtain general information, such as how many account holders who have received three strikes, but cannot obtain the identities of the alleged infringers without first obtaining a court order through preliminary discovery.
Now though, it gets a bit more interesting. If the copyright owner seeks the identity of the users through court, then the ISP must act in such a way as to assist the application. This, however, does not mean that the ISP will provide the copyright owner with a user’s identity at this stage, but will simply facilitate the court process and hand over the information upon a court order.
The motivation behind the Copyright Code is to deter online copyright infringement through the use of notices and avoid the need for court action. In practice, if a copyright owner takes court action the process of preliminary discovery is likely to be considerably easier than was the case in Dallas Buyers Club.
And remember, as we earlier discussed here, any correspondence from the copyright owner to an alleged infringer will be subject to the watchful eye of the courts to protect the interests of consumers.
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