The Online Copyright Infringement Discussion Paper released in July, makes a number of proposals to amend the Australian Copyright Act of 1968. Internet service providers (ISPs) say they welcome the discussion paper, but remain wary.

The discussion paper includes a proposal for an extended authorisation liability. A court in charge to determine whether a person has authorised an infringing act, would “still be required to consider the nature of the relationship between the person authorising the infringement and the person who did the infringing act, and whether the person took any reasonable steps to prevent or avoid the infringing act (as currently required),” according to the paper.

The “reasonable steps” would be assessed against a number of factors, such as “the extent (if any) of the person’s power to prevent the doing of the act concerned,” and “whether the person or entity was complying with any relevant industry schemes or commercial arrangements entered into by relevant parties.”

The amendments to the copyright law would “clarify that the absence of a direct power to prevent a particular infringement would not, of itself, preclude a person from taking reasonable steps to prevent or avoid an infringing act.”

According to the paper, the government is “looking to industry to reach agreement on appropriate industry schemes or commercial arrangements on what would constitute ‘reasonable steps’ to be taken by ISPs.”

Consumer interests should, however, remain a key consideration in any such schemes, the paper says, in particular suspension of internet access.

Another measure seeks to address “business models operated outside of Australia.” To that effect, the paper is proposing an extended injunctive relief, which would enable rights holders “to apply to a court for an order against ISPs to block access to an internet site operated outside of Australia, the purpose of which is to infringe copyright.”

Observers, ISPs Cautious

A number of observers are saying the Australian government may be giving in to industry demands and are warning about secondary liability of ISPs. Several stories published by ZDNet call for caution on the suggested amendments, and so does a press release by the Communication Alliance.

In the release, the Communication Alliance, which defines itself as the “primary telecommunications industry body in Australia,” and includes major ISPs, said it welcomed the discussion paper but “urged caution around several of the reform proposals.”

Of particular concern for the Communication Alliance is the proposal to extend the authorisation liability within the Copyright Act. “This proposal has the potential to capture many other entities, including schools, universities, libraries and cloud-based services in ways that may hamper their legitimate activities and disadvantage consumers,” Communication Alliance CEO John Stanton was quoted saying.

Other Anti-Piracy Schemes

The paper states that the Australian government looked at other legislations to draft its proposals. In particular, the government looked at the United States, United Kingdom and New Zealand.

In the United States, the Center for Copyright Information (CCI), a coalition of rights holders and “five of the largest Internet service providers,” set up the Copyright Alert System (CAS), through which copyright owners send notices of alleged copyright infringement to the participating ISPs.

According to the CAS, “users will be sent a maximum of six Alerts with an increasing degree of seriousness.” “The CAS published its first report [pdf] in May (IPW, Copyright Policy, 30 May 2014).

In the United Kingdom, the government said in a July release that it welcomed a new industry scheme “Creative Content UK”.

The Creative Content UK initiative, which the release says follows in the path of CAS, gathers rights holders and ISPs. According to the British Recorded Music Industry (BPI): “Creative Content UK will comprise two key components. The first, which will launch before Spring 2015, will be an education awareness campaign, partly funded by the UK government, and the second component “is a subscriber alerts programme that will be co-managed and co-funded by ISPs and content creators and due to begin at a later date.”

Participating ISPs will alert and advise subscribers when their accounts are believed to have been used to infringe copyright,” the BPI release said.

New Zealand introduced a Copyright (Infringing File Sharing) Amendment Act establishing a “graduated response scheme” in September 2011. Under this Act, alleged infringers can receive “three kinds of infringement notices, in the order in which they are given, are a detection notice, a warning notice, and an enforcement notice.”

After those notices have been delivered, rights owners can then take their cases to court, which may decide upon the payment of an award to the right owner, not to exceed NZ£$15,000, according to the Act.

Three Strikes Schemes Ineffective, Paper Says

In a 2014 paper, Rebecca Giblin, researcher at the Faculty of Law at Monash University in Clayton, Australia, looked at schemes operational in France, New Zealand, Taiwan, South Korea, Ireland, the US, and at the UK’s proposed scheme.

She found that “there is little to no evidence that graduated responses are either ‘successful’ or ‘effective’ on any measure. She also underlined the apparent healthiness of the content industries, citing the International Federation of the Phonographic Industry (IFPI) reporting on the achievement of the global music industry, and claimed the movie industry has broken its record for worldwide box office receipts.

In its Digital Music Report 2014, Frances Moore, IFPI chief executive said that “Recorded music revenues in most major markets have returned to growth.” Digital music is entering a new phase “as record companies, having licensed services across the world, now start to tap the enormous potential of emerging markets.”

Pirate Party: ISPs as Internet Police

Meanwhile, according to a 31 July release, Pirate Party President-elect Brendan Molloy claimed that the Discussion Paper makes misleading assumptions and fails to address issues of affordability and accessibility. The paper, he said “is biased towards turning Internet service providers into ‘Internet police’ and censorship in the form of website blocking, neither of which have proven effective overseas,” he said.