The Communications Alliance released a draft Copyright Notice Scheme Industry Code on 20 February 2015. If accepted for registration by the Australian Communications and Media Authority, it will become a binding industry code under Part 6 of the Telecommunications Act 1997.

The Code has been developed in response to a joint call by the Attorney General and Minister for Communications late last year for rights holders, ISPs and consumer representatives to collaborate to develop a Code for registration by April 2015. If registered, the Code is due to come into effect by no later than September 2015.

The Draft Code sets out a mechanism for a Copyright Industry Panel to appoint a Certification Body to audit the processes used by Rights Holders to gather evidence of alleged copyright infringements by residential fixed line internet service users.

Rights Holders whose processes have been certified may send Infringement Reports to ISPs covered by the scheme alleging that infringement of a particular copyright work has been detected associated with a particular IP address.  ISPs will not be required to process more than a specified minimum number of Infringement Reports each month during the initial 18 months of the scheme.

The ISP must attempt to match the IP address to an Account and, if it can, send the Account Holder an escalating series of Education, Warning and Final notices in a specified format.  At least 14 days must elapse between each notice being sent to an Account Holder.

The ISP must not disclose the Account Holder’s identity to the Rights Holder at any time during the process.

After the Account Holder has received a Final Notice he or she may issue a Challenge Notice to an independent Adjudication Panel and challenge any or all of the Education, Warning or Final notices they have received.

Rights Holders may request a Final Notice List setting out the IP Addresses (but not identifying information of Account Holders) who have received Final Notices which have not been set aside by the Adjudication Panel.

The Rights Holder may then make an application for preliminary discovery of the identity of the relevant Account Holder in the Federal Court.  ISPs must comply with any orders of the Court.

Key details of the scheme, including the minimum size of ISP to be covered, the minimum number of Infringement Reports ISPs are required to accept and the allocation of the costs of the scheme are subject of continuing discussion between the Communications Alliance and Rights Holders.

The draft Code is available at the Communications Alliance’s website: http://www.commsalliance.com.au/about-us/newsroom/2015-01 and is open for industry and public submissions until 23 March 2015.