Online Service Providers (OSPs) wishing to benefit from safe harbor provisions under the proposed Copyright (Amendment) Bill 2011 should comply with a voluntary code of practice, now available for stakeholders' comments.
The Code requires OSPs to comply with one of two systems (as applicable):
Notice and Notice System
This system applies to OSPs that offer transmission routing or connections to user-specified digital online communications.
Complainants alleging copyright infringement on an OSP's service platform send a complaint notice (in prescribed form) to the relevant OSP, which then notifies the alleged infringer of the complaint within one to three working if the relevant copyright work is a pre-release or a new release, or seven to ten days if otherwise.
Notice and Takedown System
Two such systems exist: "Storage" for OSPs which store, at a subscriber's direction, material or activity on their service platforms; and "Information Location Tools" for OSPs that have linked or referred users to an online location containing infringing material or activity by the use of information location tools.
Where a complaint (in prescribed form) is sent to an OSP, it should remove the material or disable access to the material or activity either within (1) ten to three working days if the copyright work is a pre-release/new release; or (2) seven to ten working days for other works. Where an OSP otherwise becomes aware of infringing materials or activity on their service platforms (without receiving a complaint) they must promptly remove or disable access to the materials or activity. OSPs then need to notify the relevant subscriber of the complaint (if any) and subsequent "takedown".
In the "Storage" Notice and Takedown system only, subscribers may dispute or deny the alleged infringement and/or "takedown" by sending a counter notice (in prescribed form) within 20 working days of service of the complaint to the OSP, who forwards the same to the complainant. Unless the complainant notifies the OSP within the next 10 days of commencement of legal proceedings for an injunction, the OSP will reinstate the material or cease disabling access to the material or activity.
In respect of both systems, OSPs are explicitly exempt from any obligation to verify the authenticity and content of complainants' and alleged infringers' notices, the validity of which are accepted on the basis of prima facie compliance with the relevant provisions of the Code.
Public Response to the Code
1. Timeframe for Removal of Infringing Content by OSPs
Some copyright owners have suggested that works should be removed within 24 hours or at latest, three days. Others favor "immediate" or "expeditious" removal over a prescribed time frame. Many OSPs' stance is that more time should be allowed as they may not have sufficient resources to implement "takedowns".
2. Privacy/Personal Data Issues
There are concerns regarding the disclosure of personal data of subscribers in the counter notice, a copy of which is provided to the complainant under the Code. The Government is consulting with the Privacy Commissioner on this issue and on proposals that OSPs should be required to retain records regarding their subscribers including those found to be repeat infringers.
Some stakeholders have expressed concern about potential abuse of the Code. For example, subscribers may send unjustified counter notices so that OSPs reinstate their infringing material, following which the only redress a copyright owner would have would be to issue civil proceedings against the subscriber. It has been suggested that a governmental body be responsible for reviewing whether counter notices are justified, prior to reinstatement.
Some OSPs have voiced concern that they may be overwhelmed by a significant influx of complaints and that they should not be the ones that bear the costs of compliance with the Code.