Hot on the heels of the Federal Court’s decision to require some ISPs to release the names and addresses of nearly 5000 account holders whose internet accounts have been alleged to have been used to infringe the copyright in The Dallas Buyers Club movie, the Communications Alliance has also submitted the proposed Copyright Notice Scheme Code 2015 to the ACMA for registration.

Dallas Buyers Club

In Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 (7 April 2015), Justice Perram held that there were sufficient prospects for the owner of the copyright in the The Dallas Buyers Club movie to successfully take copyright infringement proceedings against those who uploaded even a ‘sliver’ of the film using the Bittorrent peer to peer file sharing network, to justify orders requiring the ISPs to identify the account holders.

The copyright owner (the precise identity of whom is still unclear) may then use those details to sue or negotiate with the account holders (or the person who used the account) for the copyright infringement.

However, Perram J foreshadowed that the final orders will impose privacy obligations on the account holders’ details and require the Court’s approval of the form of the letters to be sent to prevent ‘speculative invoicing’, which is the practice of a rights holder making an unrealistic ambit claim for damages flowing from the alleged infringement.

Interestingly, Perram J did not consider the immanency of the industry Copyright Notice Scheme Code 2015 which the Federal Government had required be submitted for registration by 8 April, the day after the judgement in Dallas Buyers Club was handed down, to be a relevant factor against requiring the disclosure of the account holders’ information.

Copyright Notice Scheme Code 2015

A draft of the Code was published by the Communications Alliance on 20 February 2015.  As we noted at the time, the draft Code provides for a three notice scheme under which participating rights holders using accredited technology to detect allegedly infringing downloading may have applications for preliminary discovery to identify account holders streamlined.

That draft was open for comments until 23 March 2015 and more than 370 public comments and submissions were received.  The public submissions received led to amendments to the draft Code including:

  • the removal of a proposed $25 fee for an account holder to challenge the final warning notice
  • the addition of another consumer representative on the Copyright Information Panel, so that it now consists of two ISP representatives, two rights holder representatives and two consumer representatives.

On 8 April 2015, the amended draft Code was formally adopted by the Communications Alliance and submitted to the ACMA for registration under Part 6 of the Telecommunications Act 1997 (Act).  Under section 117 of the Act, the ACMA must register the Code unless it is not satisfied that certain procedural steps were followed in its development.

Commercial aspects of the scheme, including funding arrangements, have been removed from the Code and will be the subject of a separate commercial agreement between ISPs and rights holders.