According to a Communications Alliance press release, a “broad alliance” of rights holders were involved in the draft code, including APRA AMCOS, ARIA, News Corporation Australia and Village Roadshow.
The warning system described in the code of conduct would obligate participating internet service providers (ISPs) to send notices to account holders who are suspected of having downloaded infringing materials.
Under the code of conduct, rights holders can issue infringement reports in an agreed upon format to ISPs. The ISP would verify information such as IP addresses and forward the notices to the account holder. The notices will be in a standardised format and contain standardised language and information, such as the possibility of rights holders seeking court action and initiating facilitated preliminary discovery proceedings against the account holder after receiving the third notice within a 12-month period.
Account holders will receive three types of notices for each instance of suspected infringement. On the first occurrence, the account holder will receive an education notice, advising the user of the suspected infringement and links to information such as how to access legitimate content and how to avoid committing infringing acts. If a rights holder reports another infringing act, the ISP, after verifying the required information, will send the account holder a warning notice again notifying the account holder of the suspected infringing activity.
On the third case, the ISP will send a final notice to the account holder, which in addition to informing the account holder of the infringing activity, also alerts the account holder that the rights holder may now initiate court proceedings. It also lets the account holder know that it has the option to seek a review of the instances of alleged infringement.
After the final notice, the ISP will try to secure acknowledgement of the account holder of the final notice.
There will be a 14-day grace period after the issuance of the education and warning notices; for example, if the same account registers another alleged infringing act seven days after the education notice is issued, there will not be a warning notice based on that second act.
Rights holders and ISPs in Australia have been in discussions about the responsibility of ISPs for infringing activities that take place on their networks. The power dynamics of the discussion shifted in 2012, when the Australian Supreme found that iiNET did not authorise users’ infringement despite not acting on notices of infringement from copyright holders. Speaking to Managing IP later that year, John Stanton of the Communications Alliance said that ISPs were interested in an industry-backed scheme rather than legislation. He also said that Communications Alliance members were against punitive measures, such as disconnection of offending users, though he also noted that rights holders seemed to largely have backed off from that demand.
The draft code of conduct seems to reflect some of these concerns. In addition to having no provisions for throttling download speeds or disconnecting users, the draft also stresses that no information identifying account holders will not be given to rights holders absent a court order.
Comments may be submitted to the Communications Alliance here until March 23.
