The Government has given industry one last chance to agree an industry code for a “graduated response” scheme for alleged online infringers before it will step in and impose its own scheme.

The Attorney-General and the Minister for Communications have issued a joint media release announcing the Government’s response to July’s Issues Paper:

  1. First step: they have written to “industry leaders” and told them to come up with an agreed industry code for a “graduated response” regime[1] to be registered with the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997;

  2. Second step: if the “industry leaders” cannot come up with an agreementwithin 120 days [2]:

    the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

  3. Third step: the Government will also amend the Copyright Act to enable rights holders to get injunctions ordering ISPs to block access to websitesoutside Australia that provide access to infringing content.

Well, at least, Option 1 in the Issues Paper seems to have died a deserved death.[3] The media release does not mention, however, whether or not the Government will extend the “safe harbour” provisions to “service providers” and not just “carriage service providers”.

The letter the Government sent to “industry leaders” did provide some general direction about the contents of the anticipated industry code:

  • that ISPs take reasonable steps (including the development of an education and warning notice scheme) to deter online copyright infringement on their network, when they are made aware of infringing subscribers, in a manner that is proportionate to the infringement

  • informing consumers of the implications of copyright infringement and legitimate alternatives that provide affordable and timely content

  • providing appropriate safeguards for consumers

  • fairly apportioning costs as between ISPs and rights holders

  • ensuring smaller ISPs are not unfairly or disproportionately affected, and

  • include a process for facilitated discovery to assist rights holders in taking direct copyright infringement action against a subscriber after an agreed number of notices

and included the exhortation:

Any code must be sustainable and technology neutral. It should be educative and attempt to address the reasons that people are accessing unauthorised content. Consumer interests must be given genuine consideration in your negotiations.

There is no more detail on what sanctions, if any, would apply.[4]

The media release also includes a warning, of sorts, to the right holders:

The issue of affordability and accessibility of legitimate content is a key factor in reducing online copyright infringement. The Government welcomes recent action by content owners and expects industry to continue to respond to this demand from consumers in the digital market.

It will be interesting to see if the “industry leaders” can come up with an agreed code, given they have failed to reach agreement for over a decade now. Even if the Government is forced to impose a code, it may also be interesting see which ISPs join in the scheme. If there is an industry code and significant ISPs join in, would that be a basis for reconsidering the High Court’s ruling of non-authorisation in the iiNet case which was predicated, at least in part, on the ability of subscribers to jump ship from iiNet to another ISP if sanctions were imposed.

Lid dip: David Andrews.