Industry Code

According to CNET, Australians are not going to receive a copyright infringement notice from their ISP any time soon. Copyright owners and ISP’s have been negotiating an industry Code for some time which would provide three strikes before litigation – i.e. at the request of a copyright owner/exclusive licensee, the ISP would be required to send an escalating series of letters to an alleged copyright infringer.

However, the problematic point for this Code has been cost.  Manual processing of notices would reportedly be in the order of $16-$20 each, making it economically unviable. In addition, the parties have not been able to agree on who should pay these costs – the rights holders or the ISP’s. Thus, ISP’s and Foxtel have sent a letter to the Australian Media and Communications Authority advising that talks have broken down.

Blocking piracy websites

Another legal tactic that copyright holders are currently employing in the fight against online piracy is to bring proceedings under s115A of the Copyright Act. This is a new provision which allows a Court to order an ISP to block access to overseas piracy sites.  In one matter, Roadshow Films and others have sued ISP Telstra and others and the hearing is set down for June 2016.  In a second case, Universal Music and others have commenced action against ISP TPG and others. This matter is set down for hearing in October 2016 and the Federal Court has recently ordered that an additional 16 parties, presumably ISP’s, be joined to the proceedings.

Pre-trial discovery of the identity of infringers

One strategy of copyright holders, that has to date proven unsuccessful, is attempting to acquire pre-trial access to the identities of alleged copyright infringers from the ISP’s. This was pursued in the long-runningDallas Buyers Club litigation, where over 4,000 Australians were alleged to have illegally downloaded the movie Dallas Buyers Club. The Judge placed certain restrictions on letters that could be sent by the copyright holder to the alleged infringers in order to prevent unreasonable demands as well as requiring a $600,000 bond before the matter could proceed (because the applicants were overseas corporations). The applicants did not appeal this decision, effectively abandoning the case.

It will be interesting to see whether actions under the website blocking provisions of the Copyright Actprove more successful.