ISPs propose copyright-notice scheme

The Communications Alliance and five large Australian internet service providers (ISPs) have today taken the wraps off a proposed process to stop people from downloading pirated content using their services.

The proposal comes from discussions held throughout the year between ISPs, the federal government and rights holders in the movie, music, software, gaming and publishing industries. Telstra BigPond, Optus, iiNet, iPrimus, Internode, AAPT, Ericsson and the Internet Industry Association (IIA) were involved with the Communications Alliance on the development of the scheme.

The proposed process involves sending "education" and warning notices to customers whose accounts have been undertaking activity that might infringe copyright. The scheme wouldn't terminate internet accounts, and allows customers to appeal notices, if they think there is no illegal activity happening on the account.

Within 14 days of a potential infringement being detected, the rights holder could send a copyright-infringement notice to an ISP under the scheme, stating the copyrighted work that was involved, the time it was infringed upon and the IP address involved. The ISP would then try to match that IP address to a customer, and within 14 days would either tell the rights holder that it couldn't match the IP address, or send an education notice to the customer.

The education notice would say that an infringement notice has been received, and that the account may be infringing on copyright by improperly accessing content. It would say where the user could find information about piracy and how to legally source content, and would warn that if the account continued to breach copyright, the rights holder could take further action.

The customer has 21 days to ponder the notice or appeal it to an Industry Copyright Panel. After that time, if another infringement notice comes through from the rights holder for the same IP address, the ISP would send a warning notice to the account holder. Again, there would be a grace period of 21 days after the account holder receives the notice before any further action could be taken.

Once three warning notices have been sent, if the rights holder sends through another infringement notice for the same IP address, the ISP would send a "discovery notice", saying that the account holder has received one education notice and three warning notices and hasn't stopped infringing, and that the ISP would tell the rights holder after a 21-day grace period.

The rights holder could then apply for access to the account holder's details by applying for a preliminary discovery or subpoena application so that the rights holder could take action, with which the ISP has to comply.

If an ISP receives no copyright notices for an IP address for 12 months, the process starts again from the beginning, with an education notice.

Any rights holder that wants to be part of the scheme would have to pass an accreditation process, whereby its infringement-detection technology and infringement-notice processes would be audited.

It would be trialled by the ISPs for consumer-residential landline customers for a period of 18 months. Since the systems for running such a scheme in the long term would be expensive to set up, the trial will be carried out manually, or using semi-automated processes. Given this, the ISPs won't have to process more than 100 copyright-infringement notices per calendar month. The proposal states that ISPs should be reimbursed for reasonable costs that they incur implementing the system, including training, software design and record keeping.

After the 18 months, the results would be assessed to discover whether it's been effective by seeing whether — as has happened in other countries — most people stopped infringing after their first notice. The proposal was not final, with the discussion paper intended to spark debate. Issues for discussion include how to fairly apportion the costs for operating the scheme, and the creation of the industry panel for dealing with appeals.

"We believe the Notice Scheme can greatly reduce online copyright infringement in Australia, while protecting consumer rights, educating consumers about how to access legal online content and helping rights holders to protect their rights," Communications Alliance CEO John Stanton said in a statement.

"Equally important is the need for rights holders to ensure that consumers have access to legal and affordable content online, to reduce the motivation to source content in ways that might be illegal."