Australia - Development of an Australian anti-piracy code for internet service providers (ISPs)
On 10 December 2014, the Australian Government announced that it is seeking to develop a new anti-piracy code to protect rights holders' interests from online copyright infringement. The Government has written to various ISPs and rights holders, asking them to collaborate in the development and implementation of the new anti-piracy code.
However if the ISPs and rights holders cannot reach an agreement by 8 April 2015, the Government will step in and bind the industry by either:
● an industry code imposed by the Attorney-General under the Copyright Act 1968 (Cth); or
● an industry standard imposed by the Australian Communications and Media Authority (ACMA) as directed by the Minister for Communications under the Telecommunications Act 1997 (Cth).
From a practical perspective, the new code will endeavour to protect rights holders' copyrighted works. From a purely legal perspective the code will be critical to the determination of whether an ISP took reasonable steps, under the Copyright Act, to prevent or avoid the copyright infringing act.
Accordingly, the code is expected to:
● ensure that ISPs take reasonable steps to deter copyright infringements that might occur through their services;
● inform consumers of the consequences of copyright infringements;
● assist rights holders to take action against copyright infringers after an agreed number of notices; and
● distribute costs between ISPs and rights holders.
The new code will be introduced after the High Court of Australia recently ruled in Roadshow Films v iiNet Limited  HCA 16 that ISPs were not under any obligation to take any steps to protect the rights of copyright owners. Despite being given little bargaining power, it is still possible that ISPs may continue to avoid liability for illegal downloads that occur on their systems by agreeing to a code within the industry rather than having one imposed on them by the Government.
However, the Government appears uncertain whether the proposed anti-piracy code will be effective in
light of continuously changing technology and consumer behaviour. As such, the Government has indicated that the effectiveness of the incoming code will be reviewed 18 months after its implementation.
Further, there is concern that the public interest will not be adequately balanced since consumer groups have not been asked to contribute to the negotiation of the new code.
For more information, please contact Anne-Marie Allgrove , Toby Patten or Jarrod Bayliss-McCulloch.