ISP copyright code of practice up (updated)

POSTED BY Rick Shera
06 August 2010

posted in l@w.geek.nz | Intellectual Property | Copyright | International

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Computerworld reports some pressure coming to bear in the Roadshow Films v iiNet appeal hearing, for the parties to get together to agree a code of practice.

A code was originally envisaged under section 116AH of the Copyright Act 1968, which was brought in as part of the package to satisfy Australia's obligations under its Free Trade Agreement, with the US.

This call for a code is despite the Court being regaled with the correspondence between the leading players which showed that they were diametrically opposed in some of their views (an example of which, from the Internet Industry Association, is here (PDF)).

In New Zealand, the Telecommunications Carriers' Forum attempted to negotiate its own code with rightsholders in 2008/2009, to cope with our similarly worded (and now infamous) section 92A.  From my experience as consultant to the TCF, I wish our Australian cousins the best of luck with that and I do hope that they can work it out, but, there are some barriers:

  • I don't think rightsholders are keen at all on paying per notice fees in any graduated response system (even though this provides a huge saving to them in not having to go to Court).  I suspect that one of the reasons for this is that it makes the robot generation and sending of notices very difficult and would be expensive for the RIAAs and MPAs of the World if rolled out in all jurisdictions. I expect that if AFACT had had to pay a cost recovery based fee per notice, iiNet would not have got quite so many.
  • Even if they begrudgingly recognise some obligation to pay, rightsholders argue that ISPs should bear some of the cost (i.e. that there should not be full cost recovery for ISPs) because ISPs make money from selling bandwidth to infringers.  ISPs disagree that they make profits from infringing file sharers' use of bandwidth and are also (rightly in my view) against bearing the cost of enforcement of a third party's property right.  Helpfully, in terms of international precedent, in New Zealand, section 122R of our Copyright (Infringing File Sharing) Amendment Bill proposes a per notice cost payable by rightsholders.
  • The issues raised in the iiNet case with respect to availability of the safe harbour in section 116AG of the Australian Act would need to be cleared up so that ISPs are not in any doubt as to their protection from liability in all circumstances. In New Zealand, this was a major stumbling block since section 92A did not reference a code at all as a means of complying with the reasonable policy requirement.
  • A fundamental problem with a code is that it sets up the ISP as judge and jury.  ISPs are not set up to decide what may be complex copyright issues and nor should they have to.  Alternatively, an expensive quasi-judicial system, akin to the domain name UDRP, would need to be created and enforced under various contractual relationships.  A statute sanctioned adjudicator is preferable in my view (in New Zealand, our Copyright Tribunal is to be given an expanded role).
  • A code gives protection to the ISP but it does not bind anyone who has not signed onto it.  So, you still have the problem of overseas parties or others who may not even be aware of it, ignoring any of the process requirements.  Those notices just get ignored when they may be good evidence of infringement.  It is also more difficult to impose process and evidence standards on those rightsholders who do agree to be bound - what do you do if they fail to comply - issue breach of code proceedings?  What if they are overseas?
  • The remedies available in such systems against infringers are also more limited (imposition of financial penalties or compensation is far more difficult).
  • In any case, there is the longstanding issue in Australia of the overly restrictive carriage service provider defintion, which means that non-telco ISPs are not protected at all.  That would have to change.
  • ACTA may change everything anyway!

I am generally in favour of industry codes rather than regulation but, in this instance, if a code is desired, it still needs to be supported by specific legislation in my view.

UPDATED: 3 March 2011

Reports out of Australia following the victory loss for ISPs in the iiNet case suggest that the idea of a code is back centre stage.

POSTED BY Rick Shera
06 August 2010

posted in l@w.geek.nzIntellectual PropertyCopyrightInternational

VIEWED 4892 TIMES

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