ISPs and copyright enforcement – let’s remember the facts

International copyright owners are calling on Aussie ISPs to support a UK-style self-regulatory scheme for disciplining alleged copyright breachers.

But the scheme is at odds with the US approach to the same problem, and Australia four years ago decided to follow the US model.  Why would local ISPs volunteer for a hybrid solution now, just because some elements of the UK system suit some stakeholders better ?

Australia ‘chose’ the US model as part of the US Free Trade Agreement

Back in 2004, Australia was negotiating to enter its Free Trade Agreement with the USA.  A lot of horse trading was done in a short time, and part of it involved accepting a US-style copyright protection regime.

We didn’t get a lot of choice about it.  The legal changes made to our Copyright Act were Uncle Sam through and through.  Basically, they involve four sets of rules that various industry participants are expected to comply with to be regarded as good citizens.

Four key areas

The four areas where rules apply are:

  • hosting
  • caching
  • indexing
  • carriage.

In the first three, there are detailed and arguably balanced procedures for take down notices that protect the service provider from being accused of punishing innocent end users.

But there’s no equivalent process laid out for determining who’s an infringer in the fourth case.  ISPs can only make their own calls, playing judge and jury.

No provision for fairly terminating ISP customers

Let’s repeat that:  Australia’s so-called ‘safe harbour’ copyright law was virtually mandated by the US Government, and it doesn’t provide for a process where customers of ISPs are first proven to be infringers, then warned and then terminated.

Neither does the equivalent US law.

Back in 2004, Australia was prepared to give the US almost anything it wanted in copyright law, to win access to a Free Trade Agreement.  The internet industry here complained bitterly at the lack of consultation, but it was stuck with the deal the governments made.

It’s a bit rich now for the Australian Federation Against Copyright Theft (AFACT) to say that the law that was dumped on the Australian industry just 4 years ago isn’t good enough and should have a piece of UK-style self-regulation bolted on.

About Peter Moon

Peter Moon is a commercial lawyer with 20 years experience in the tech and telco industries.
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