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News October 27, 2015

ACCAN concerned by Govt’s online piracy crackdown

Former Editor

The Australian Communications Consumer Action Network (ACCAN), the peak telco consumer advocacy body, has responded to the federal government’s proposals to combat online copyright infringement.

In response to the Government’s proposal to hold Internet Service Providers (ISPs) liable for copyright infringement performed by their customers, the ACCAN believe the change will put the cost on consumers. “Previous talks between the content industries and ISPs have demonstrated that the industries themselves are reluctant to internalise these costs,” the response reads.

“[…] There is no explanation provided in the discussion paper about the merits of such a significant change to the settled law on authorisation. Such a change would impact on a range of organisations including schools, universities, libraries, local councils, hotels and cafes.”

The ACCAN has included recommendations in response to each of the Government’s proposals. In response to the aforementioned extended authorisation liability proposal, the ACCAN have two suggestions: 1) The Government should ensure that the cost of implementing an industry scheme is not passed on to consumers and 2) Any proposed extension to authorisation liability should be limited to online activities.

The ACCAN has criticised the European model’s injunction application process (which allows for third party injunctions to be made against ISPs) saying “the courts generally will not have the benefit of hearing public interest arguments or arguments from those who may be non-infringing users.” The body suggests a presumption in favour of allowing parties to become interveners or amicus (someone who is not a party to a case) in the context of the injunction applications.

While the ACCAN is satisfied with the extended safe harbor scheme  – where a court must not grant relief against a carriage service provider that consists of damages or an account of profits, and can terminate those accounts – but believes the account terminations should be repealed.

“Indeed, account terminations are no longer accepted as sound policy by any industry party,” ACCAN said. “Content industry groups have over recent years moved away from arguing that account termination is a necessary or desirable measure.”

Lastly, the ACCAN has argued against notice schemes, similar to the model taken up in the US where if infringement is still carried out following its ‘thee strikes’ implementation, Internet speed is temporarily slowed. ACCAN suggests an independent review process run by the American Arbitration Association for consumers to challenge those actions.

“Importantly, a consumer’s decision not to seek an independent review will not be construed as an admission or waiver in any other proceeding […] On the whole ACCAN would argue against notice schemes with sanctions as they are likely to be costly to administer and counterproductive in the content industry’s efforts to build consumer goodwill and a culture of respect for copyright law.”

The response follows views published by Australia’s telecommunications industry body the Communications Alliance, whose members include Australia’s largest ISPs Telstra, Optus, iiNet and Vodafone. The CA’s response suggests ISPs are open to blocking users who connect to infringing websites to download music, TV or film after they have received three warning letters, aka the ‘three strikes’ system.

More responses from the creative industries and its consumers are expected to be published online in the coming days.

On Tuesday September 9 the Minister for Communications, the Hon Malcolm Turnbull MP, will host an Online Copyright Infringement Forum with a panel of key industry figures in Sydney. The forum will be webcast live here.

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