Thursday, December 8, 2011

iiNet and other ISPs proposing Graduated Response in Australia

I nearly missed this - was trawling through some old emails this morning and found this article from the Australian Copyright Council from November. Apparently the Communications Alliance which represents some of the countries major ISPs including BigPond, Optus and iiNet, released a paper recently advocating for the introduction of a three strikes/graduated response program in Australia. It was released just before the High Court hearing of the latest appeal in the iiNet case and perhaps as a preemptive strike in the event that the court finds iiNet liable for authorising copyright infringement. The case has been heard but the decision is yet to be released.

The scheme proposed would include three 'educational' notices to be sent to suspected copyright infringers and on the final breach account holder details to be released on subpoena to enable copyright owners to enforce the law. The plan is intended to be trialed for 18 months at which point and evaluation will be undertaken to assess its effectiveness. It would only apply to consumer, residential, land line accounts and all costs would be borne by copyright holders. An independent audit of infringement detection technology would need to be completed prior to a copyright holder being permitted to join the program.

One curious part of the scheme is that the first 'education' notice is not to state the nature of the content that was infringed, nor is it to identify the ISP but rather be a generic notice simply noting the copyright owner as the rights holder. Only the second and subsequrnt notices will specify the content that has been infringed.

Account holder records will be wiped clean if no subsequent breaches are detected within a 12 month period. ISPs will not be required to issue more than 100 notices a month for the 18 month trial period of the scheme. It is further proposed that ISPs and Rights Holders will establish and jointly fund a Copyright Industry Panel. This is envisaged to be a small body with an independent Executive Director and members from the Rights Holder and ISP sector. Account holders will be given a 21 day grace period on each breach to challenge a notification through the industry panel.

The central objective is to change user behaviour and this would be a central area on inquiry in the evaluation to be completed at the end of the 18 month trial. They state:

.... it does appear (as has been forecast in numerous research studies) that the majority of online infringers do change their behaviour (i.e. stop infringing activities) upon receipt of one or more educational or warning notices – even, as is the case in Canada, those notices don‟t expressly refer to sanctions; e.g: In France, only 0.1% of users who receive a 1st notice will continue their activities and receive a 3rd notice; Canada – 11% of those who receive a 1st notice will continue their activities and receive a 3rd notice

I have written about the evils of such a scheme before and it is very disappointing to see Australian ISPs supporting its introduction.

Further Reading
Australian Copyright Council, ISPs propose new system to fight online piracy (29 November 2011) < > at 8 December 2011

Communications Alliance Ltd, A Scheme to Address Online Copyright Infringement (November 2011) < > at 8 December 2011

ArsTechnica, Aussie ISPs to trial notifying suspected infringers of suspected misdeeds (29 November 2011) < > at 8 December 2011

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