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Online copyright infringement FAQs

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Introduction

What role is the Government taking to reduce online copyright infringement?

The Industry Code has now been submitted to the Australian Communications and Media Authority (ACMA), what happens next?

What will the Government do if the ACMA doesn't accept the Industry code?

What will happen if the Industry Code is found to be unsuccessful?

If the Government is making amendments to the Copyright Act to block websites that supply copyright infringing material does this also mean censorship for consumers?

If Industry develops a code or scheme will sanctions be put on consumers?

The IT pricing inquiry provided recommendations to improve consumer access to digital services, why hasn’t the Government responded?

Why haven’t you extended safe harbour?

Many Australians use a VPN to access Netflix in the US. Is it illegal for me to use a VPN to access Netflix?

What evidence is there that these measures will be effective? What will the Government do if these measures don’t work?

What is the penalty if I am found to be infringing copyright? Is it financial or will I be involved in a costly court case to defend myself?

What opportunities will there be for me to challenge a claim of online copyright infringement? Will there be a course of redress?

How does the content owner know I have downloaded an illegal file? Will the ISP be monitoring my internet use?

I share my internet connection with others in my house, will I be responsible for another person’s actions?

It’s relatively easy to get around a site block, isn’t blocking torrent sites like The Pirate Bay pointless, not to mention costly for ISPs?

Will the recently introduced data retention legislation be used to police copyright infringement?

Rather than implementing an industry code, why doesn't the Government address the real issue and ensure timely access to content and at a reasonable price?

Introduction

Copyright protection provides an essential mechanism for ensuring the viability and success of creative industries by incentivising and rewarding creators. The rapid growth of the Internet has brought significant challenges to the protection of copyright, due to the ease with which material can be digitally copied and shared, at little or no cost.

The Government has sought the least burdensome and most flexible way of responding to concerns about online copyright infringement, while protecting the legitimate interests of the rights holders in the protection of their intellectual property.

The Attorney-General and the Minister for Communications have written to industry leaders requiring them to immediately develop an industry code that will be registered with the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997.  The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content.

The Minister and the Attorney-General expect strong collaboration between rights holders, internet service providers (ISPs) and consumers on this issue. A copy of the letter to the industry leaders is attached.

Failing agreement within 120 days, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.

The Government will also amend the Copyright Act, to enable rights holders to apply for a court order requiring ISPs to block access to a website, operated outside of Australia, which provides access to infringing content. 

In a world of rapid changes in technology and human behaviour, there is no single measure that can eliminate online copyright infringement.  In light of this the Government will review the measures, 18 months after they are implemented, to assess their effectiveness.

The issue of affordability and accessibility of legitimate content is a key factor in reducing online copyright infringement. The Government welcomes recent action by content owners and expects industry to continue to respond to this demand from consumers in the digital market. 

These measures, to be introduced in early 2015, follow extensive consultation with industry and consumer groups and evaluation of submissions to the Online Copyright Infringement Discussion Paper.

 

 

Frequently Asked Questions

 

Q: What role is the Government taking to reduce online copyright infringement?

  • The Government is committed to reducing the rates of online copyright infringement in Australia.
  • An effective approach requires the collaboration of all involved parties to balance their legitimate interests, so that rights holders can protect their intellectual property, ISPs can assist without a placing an undue burden on their everyday business, and consumers can legitimately access the content they desire.
  • The Government’s role is to ensure that there is an appropriate legal framework that encourages industry cooperation – and that is why these measures are being implemented.
  • The Government has actively consulted stakeholders and the general public through its online copyright infringement discussion paper and forum to determine the appropriate measures to reduce online copyright infringement.

Q: The Industry Code has now been submitted to the Australian Communications and Media Authority (ACMA), what happens next?

  • Communications Alliance submitted the industry code to the ACMA on 8 April 2015.
  • Under section 117 of the Telecommunications Act 1997, the ACMA is required to register a submitted code if it satisfied that:

 the code provides appropriate community safeguards.

 the Communications Alliance has published a draft code and invited the public and industry to make submissions, over a period of at least 30 days, and considered any submissions.

 the Telecommunications Industry Ombudsman (TIO), the Australian Competition and Consumer Commission (ACCC), a consumer body, and where applicable, the Privacy Commissioner have been consulted.

  • The ACMA has advised it will confirm that the code meets its criteria, undertake a regulatory impact statement (RIS) and seek the agreement of the ACMA Authority, ACMA’s governing board.
  • Registration of an industry code is ultimately the responsibility of the ACMA Authority.

What will the Government do if the ACMA doesn't accept the Industry code?

  • If the ACMA doesn’t accept and register the industry code, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act.
  • If an industry standard is needed, the ACMA would develop the standard and undertake public consultation for at least 30 days, as well as consult with the ACCC, TIO, a consumer body, and where applicable, the Privacy Commissioner, as well as States and Territories and undertake a RIS. 

What will happen if the Industry Code is found to be unsuccessful?

  • An evaluation of the code will be conducted 18 months after the commencement of the notice scheme.
  • The Government will monitor and review any introduced scheme to ensure rights holders can protect their intellectual property, ISPs can assist without placing an undue burden on their everyday business, and consumers can legitimately access the content they desire.

Q: If the Government is making amendments to the Copyright Act to block websites that supply copyright infringing material does this also mean censorship for consumers?

  • The Copyright Act will be amended to enable rights holders to apply to a court for an order requiring ISPs to block access to a website which infringes copyright as its primary purpose.  The power will only apply to websites outside Australia as rights holders are not prevented from taking direct action against websites operated within Australia.
  • The proposed amendments list a number of matters for the court to consider when deciding whether to grant an order, including whether it is a proportionate response, the impact on any persons likely to be affected and whether it is in the public interest to block access to the website.

Q: If Industry develops a code or scheme will sanctions be put on consumers?

  • The focus of the code is on providing information to consumers.  It is anticipated that if a rights holder alerts an ISP that one of their IP addresses has been identified as downloading infringing material, then the ISP would be responsible for contacting their customer associated with the IP address and providing information on the infringement as well as information on legitimate sources of copyright material.
  • A sanction such as the termination of an account has been recognised as an extreme measure.  Even slowing internet speeds may be overly punitive and considered by consumers to be unreasonable where only one individual member of a family account is responsible for the infringement. 

Q: The IT pricing inquiry provided recommendations to improve consumer access to digital services, why hasn’t the Government responded?

  • The Inquiry raised significant public awareness of the issue of price disparity and brought to the attention of Australians a range of options and opportunities available to level the playing field.
  • The Government agrees that Australian consumers should be empowered to seek out goods and services at the best available price, consistent with the measures being introduced for online copyright.
  • There are also a number of other processes underway within Government including the Competition Policy Review (the Harper Review) and the Government’s consideration of its response to the Australian Law Reform Commission’s report into Copyright in the Digital Economy.
  • The Government is currently considering the response to the IT pricing inquiry and will table it shortly.

Q: Why haven’t you extended safe harbour?

  • The Government is encouraging all parties to collaborate to reduce the rates of online copyright infringement in Australia.
  • Given that this is related to broader issues than just online copyright, this proposal will not be pursued at this time.
  • The Government expects that schools, libraries, search engines and wifi providers will continue to take steps to reduce online copyright infringement on their systems.

Q: Many Australians use a VPN to access Netflix in the US. Is it illegal for me to use a VPN to access Netflix?

  • The Copyright Act does not make it illegal to use a VPN to access overseas content.
  • While content providers often have in place international commercial arrangements to protect copyright in different countries or regions, which can result in ‘geoblocking’, circumventing this is not illegal under the Copyright Act.

Q: What evidence is there that these measures will be effective? What will the Government do if these measures don’t work?

  • There is some evidence that industry-agreed measures in other jurisdictions, such as in the US, and injunction powers, such as in the UK, have been effective in deterring some individuals from infringing copyright and in preventing offshore sites from offering illegal content.
  • The measures are designed to create incentives for rights holders, ISPs and consumers to take appropriate action to address online copyright infringement.
  • The Government is in consultation with other jurisdictions about the effectiveness of their schemes and will be collaborating on research. 
  • The Government will monitor and review any introduced scheme after 18 months to ensure that rights holders can protect their intellectual property, ISPs can assist without placing an undue burden on their everyday business, and consumers can legitimately access the content they desire.

Q: What is the penalty if I am found to be infringing copyright? Is it financial or will I be involved in a costly court case to defend myself?

  • The industry code would provide information on an infringement as well as information on legitimate sources of copyright material.
  • It is not a court action, it does not involve a financial penalty.
  • It is however illegal to download copyright material without the approval of the rights holder and, as a result, an infringer could be subject to court proceedings, which could result in a financial liability
  • If infringement continues, it is a matter for a rights holder to decide whether to initiate court proceedings.

Q: What opportunities will there be for me to challenge a claim of online copyright infringement? Will there be a course of redress?

  • The industry code would provide information on an infringement as well as information on legitimate sources of copyright material. Challenging a claim of copyright infringement will be a matter to be determined in a code.
  • It is not a court action, it does not involve a financial penalty.
  • It is however illegal to download copyright material without the approval of the rights holder and, as a result, an infringer could be subject to court proceedings.
  • If infringement continues, it is a matter for a rights holder to decide whether to initiate court proceedings.

Q: How does the content owner know I have downloaded an illegal file? Will the ISP be monitoring my internet use?

  • ISPs will not be required to monitor internet use.
  • It is anticipated that if a rights holder alerts an ISP that one of their IP addresses has been identified as downloading infringing material, then the ISP would be responsible for contacting their customer associated with the IP address and providing information on the infringement as well as information on legitimate sources of copyright material.

Q: I share my internet connection with others in my house, will I be responsible for another person’s actions?

  • The Government expects that this issue would be addressed in any relevant industry code between ISPs and rights holders.
  • Under a similar US scheme, this is a legitimate ground for a challenge that can be raised by account holders in disputing notices.
  • Generally though the account holder is considered responsible for the uses the account is put to, much like the person listed on the bond of a rental property. It is important that you always secure your internet connection to ensure it is not used for illicit purposes.

Q: It’s relatively easy to get around a site block, isn’t blocking torrent sites like The Pirate Bay pointless, not to mention costly for ISPs?

  • Site blocking has been used successfully in European countries, with some surveys showing a drop in traffic to torrent sites.
  • Site blocking is already used Australia for refused classification sites so for ISPs the blocking process would be the same, with copyright infringing sites only added to block lists after a court injunction.
  • Although people may be able to bypass blocking, they would do so with the knowledge that the site has been blocked and contains copyright infringing material.

Q: Will the recently introduced data retention legislation be used to police copyright infringement?

  • The recently introduced data retention legislation is vital for law enforcement and national security, not for copyright enforcement.
  • The Telecommunications (Interception and Access) Act 1979 regulates access to data for law enforcement and security purposes, not civil matters and it is a matter for the rights holder to pursue an infringement of copyright.
  • The proposed data retention regime will not change the existing arrangements for access to telecommunications data.

Rather than implementing an industry code, why doesn't the Government address the real issue and ensure timely access to content and at a reasonable price?

  • As part of the new measures announced on 10 December 2014, by the Minister for Communications, the Hon Malcolm Turnbull MP and the Attorney General, Senator the Hon George Brandis QC, was not only the introduction of an industry code, but also encouraging rights holders and ISPs to improve the affordability and accessibility of content to consumers.
  • Content providers and distributors have indicated their intention to release content in Australia closer to its international release date and review the competitiveness of existing pricing models to encourage consumers to access legitimate content.
  • Rights holders are acknowledging this and it has become evident with Foxtel lowering its prices in late 2014, as well as new streaming services, Stan, Presto and Netflix all now available in Australia. This is providing consumers with greater access to legitimate content at a reasonable price.

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