Australia's main telecommunications industry body, Communications Alliance, has submitted an updated and final version of the Copyright Notice Scheme 2015 (Code) to the Australian Communications and Media Authority (ACMA). The Code is designed to act as a preliminary measure to detect and deter copyright infringement, rather than impose sanctions on alleged copyright infringers, and it will not affect the operation of preliminary discovery through the court system. The majority of Australian ISPs will be within the scope of the Code, as it applies to ISPs that provide residential fixed internet access services to at least 1000 subscribers.
The Code establishes a scheme of enforced co-operation between ISPs and the owners or exclusive licensees of copyright material (rights holders). It does not provide for the identification of alleged infringers of copyright, as rights holders must still apply to a court to order ISPs to disclose subscribers' identities. The main variation to this final version concerns stronger consumer representation on the Copyright Information Panel, who will administer the Code.
The method of detection involves linking a subscriber's account to an IP address. Following a certification process (to ensure allegations are based on reasonable grounds), ISPs will be required to send notices alleging copyright infringement to the Account Holder at the request of rights holders. If a subscriber receives three notices ('Education', 'Warning' and 'Final' notices) within a 12 month period, the rights holder may apply to a court for preliminary discovery and the ISP must assist with the discovery process.
Subscribers will have the ability, at no cost to them, to challenge any of the notices they receive before an independent Adjudication Panel.
It is still unclear who will be primarily bear the cost of administering this graduated warning scheme, with the Code simply stating that 'it is to be initially funded by commercial agreement negotiated between the ISPs and rights holders'. Subject to approval by ACMA, the Code will be effective from 1 September 2015. A copy of the Code is available here.
For more information, please contact Anne-Marie Allgrove, Toby Patten or Jarrod Bayliss-McCulloch.