ISPs willing to negotiate on 'three strikes' piracy regime

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ISPs willing to negotiate on 'three strikes' piracy regime

But reject throttling speeds.

Australia’s telecommunications industry body has signalled its willingness to negotiate on a three strikes approach to copyright infringement despite being ‘unconvinced’ it will work, while outlining an alternative model and calling on rights holders to play their part to reduce piracy.

The Communications Alliance proposal [pdf] was put forward as part of a request for submissions to the Government’s July discussion paper on copyright infringement.

The paper outlined three proposals to amend the Copyright Act in an effort to clamp down on online piracy, including allowing the copyright industry to use the court system to force ISPs to censor websites facilitating piracy, and extending ‘safe harbour’ provisions to ISPs currently unable to access them.

The Government also proposed loosening the “reasonable steps” provision of the Act so ISPs would still need to prove they took measures to prevent copyright even if they lack the power to stop it.

The Communications Alliance - on behalf of its members, which include the country’s largest telcos and ISPs - said it did not support the changes to the “reasonable steps” provision in part because of the potential for “serious unintended consequences”.

But it said it was willing to discuss proposed site-blocking  - despite known issues with the section 313 notices - and a graduated warning scheme for infringers, as long as speed throttling and service termination were excluded from the arrangement.

ISPs and rights holders have been warned by Attorney-General George Brandis that the Government would mandate a graduated ‘three strikes’ regime should the parties fail to reach agreement on an industry solution.

The Comms Alliance put forward the UK’s “follow the money” model - which restricts the amount of advertising revenue generated by infringing sites - as a potential policy to be replicated in Australia.

“We are by no means convinced that a graduated response scheme would be effective. In any event a range of issues – including who pays for such a scheme - need to be addressed,” the body wrote in its submission.

“There is little or no evidence to date that such schemes are successful, but no shortage of examples where such schemes have been distinctly unsuccessful.

“Nonetheless, Communications Alliance remains willing to engage in good faith discussions with rights holders, with a view to agreeing on a scheme to address online copyright infringement, if the Government maintains that such a scheme is desirable.”

The Comms Alliance resurfaced a “notice and notice” option - in which ISPs send up to three warning notices in escalating severity to users identified as having engaged in piracy.

An 18-month trial of the scheme had been proposed in earlier discussions with ISPs and rights holders, which collapsed at the end of 2013 after both parties failed to agree on details including who would foot the bill.

“Australian ISPs believe that [rights holders], who will overwhelmingly enjoy the economic benefits of any online copyright enforcement scheme, should reimburse the reasonable costs of ISPs who assist them," the Comms Alliance wrote.

"This approach is consistent with other types of assistance that ISPs provide to third parties, for example, law enforcement agencies."

Offering better access to content

The industry body simultaneously called on rights holders to make digital content available in a more timely and affordable manner so consumers don't resort to piracy to access material.

The comments echo those made previously by Communications Minister Malcolm Turnbull, who said content owners needed to ‘play their part’ by making content universally and affordably available.

The Comms Alliance lobbied the content industry to end geo-blocking and remove price discrepancies for the same content between Australia and overseas.

“It can be reasonably argued that, rather than pushing for the introduction of a graduated response scheme, better results might be obtained by focusing on .. ensuring greater availability of timely, lawful and affordable content.

“We believe that for any scheme designed to address online copyright infringement to be sustainable it must also stimulate innovation by growing the digital content market, so Australians can continue to access and enjoy new and emerging content, devices and technologies.”

Comms Alliance member and vocal critic of the Government's plans, iiNet, has indicated it will make a separate submission to the discussion paper.

Copyright Council calls for mandated scheme

In its own submission to the discussion, the representative body for peak rights holders, the Australian Copyright Council, said in light of the failed negotiations, the Government needed to step in and provide "appropriate incentives for stakeholders to co-operate". 

It advocated for the introduction of either a mandatory code or a scheme based on "wilful blindness" - which would require ISPs who had been alerted to copyright infringement to act.

" ... it is no longer possible for carriage service providers to feign ignorance about the infringing activities of their customers or throw up their hands and say they can't do anything about it," the ACC wrote.

"It should not be reasonable for an ISP to fail to act when a risk is drawn to their attention."

The ACC said the argument about a lack of local content driving consumers to piracy was no longer plausible, and said consumers were trending away from paid content despite being more networked.

"We acknowledge that in some areas there is still a gap between business models and consumer expectations. But the market is evolving. And evolving fast.

"This paradigm of free-riding will not drive a vibrant digital economy."

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