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New anti-piracy code proposes the 'three strikes' policy for Australia

After service providers and rights holders were called on by the Australian Government to develop a code to address copyright infringement, the industry has responded with a three-strikes scheme for pirates.

Image by Jaskirat Singh Bawa, CC BY-ND 2.0

Internet service providers in Australia would be required to help identify repeat copyright infringers under a proposed "three-strikes" policy draft published Friday.

The draft code, which was drafted by rights holders and service providers, came in response to an ultimatum from the Australian Government in December last year for an industry-developed approach to combat the ongoing issue of online copyright infringement and piracy in Australia. The Federal Government warned that, unless rights holders and ISPs could work together to devise a code, the Government would "impose binding arrangements" on the industry by April 8, 2015.

Australia's attorney-general and the minister for communications announced the move as part of a suite of measures, including new legislation that allows for the blocking of overseas websites found to be facilitating piracy.

The Industry Code [PDF] was published by Communications Alliance, a joint body representing telecommunications providers, ISPs and the wider communications industry in Australia. Its stated objectives are to "dissuade Australian internet users from engaging in online copyright infringement," to educate them about what constitutes infringement, and to provide information on how to "readily access lawful available content alternatives."

This kind of graduated response to piracy has been on the cards for Australians for some time, with the Attorney-General's Department saying last year that it was "one option" for addressing piracy. The comments were welcomed by rights holders, but some ISPs rejected the three strikes approach as too "heavy-handed." The Government's proposal also faced criticism from one academic who said there was no evidence that three strikes regimes actually stop piracy.

The document does not discuss how rights holders will identify copyright infringement, only saying that the processes must be audited and certified to ensure accuracy. Similarly, the issue of who funds the scheme is yet to be addressed. However, the code does stipulate the steps rights holders and ISPs must take once piracy has been identified.

How 'three strikes' will work

Among the measures, which apply to "residential fixed, internet account holders only," is the introduction of a notice scheme.

"This copyright notice scheme provides that, at the instigation of rights holders, ISPs must, where possible, issue Education, Warning or Final Notices to relevant account holders," the code reads.

This graduated response has been designed to give account holders the opportunity to cease activity, or challenge the infringement notices they receive, and if all three notices are not sent within a year, the infringement count "will revert to zero".

However, if an account holder receives their final warning within 12 months of the Education first notice, rights holders "will be provided with assistance [from ISPs] take direct copyright infringement action against an account holder".

The code offers the caveat that the scheme "does not identify alleged infringers of copyright" but rather allows the detection of infringing IP addresses, meaning warning notices will be sent to the "account holder to whose service that IP address was allocated at that time".

Once the final notice is sent, the rights holder can elect to apply through the Federal Court for "preliminary discovery" to identify an infringer's personal information in order to pursue further legal action. Rights holders will not have access to any internet user's personal information until this stage.

It is expressly stated that ISPs must only disclose customer details through a court order or if permitted by the account holders themselves, meaning content owners will not be able to quietly press ISPs to hand over customer information.

However, the Australian Communications Consumer Action Network has raised concerns that even though "express sanctions" have been left out of the code, internet users could still face harsh penalties through the courts.

"Disconnection from the internet or speed throttling are not proportionate methods to tackle the problem of online copyright infringement," said ACCAN CEO, Teresa Corbin.

The code does set up a system to allow internet users to challenge any alleged infringement through an Adjudication Panel. This body is established under the code, along with a Copyright Information Panel made up of representatives of both rights holders and ISPs to oversee implementation of the scheme.

The rights holders participating in the drafting of the code include the Australian Recording Industry Association, Australia Screen Association, Copyright Agency, pay-TV provider Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow and World Media. The service providers represented include the major Australian players Telstra, Optus and iiNet.

The full code does not go through to the Australian Communications and Media Authority until April, but if finalised, these measures will be in place by September 1, 2015.