Australian Internet Service Providers proposal

• Communications Alliance

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01 December 2011Over the past decade, the digital economy has enabled extraordinary technological innovation and evolution. The growth of the internet as a global distribution channel has also facilitated an explosion in the range and volume of content available online - from movies to music, books, software, games and much more.

Australian consumers' ability to legally access this content in a timely and affordable manner does, however, vary significantly from sector to sector (eg; release of TV programs and movies in Australia can lag months behind US releases). This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and therefore copyright infringement.

Content rights holders (described as 'Rights Holders' in this paper) have lobbied for a number of strategies to address online copyright infringement, most recently focussing on a graduated response scheme designed to compel Australian Internet Intermediaries, (particularly Internet Service Providers), to forward notices and apply sanctions against users the Rights Holders allege are engaging in copyright infringement, via peer to peer (P2P) file sharing.

The scheme sought by Rights Holders is without judicial or independent oversight and its purpose is to enforce a private property right that generates a royalty stream to Rights Holders. No similar scheme - compelling an intermediary to sanction an internet user on the allegation of a third party – exists.

The Internet Service Providers ('the ISPs') who are signatories to this paper are Telstra Bigpond, Optus, iiNet, iPrimus and Internode. The ISPs do not approve, condone or authorise any person engaging in copyright infringement by any means, including through the use of file sharing technologies. The majority of the ISPs in fact offer their customers legal content downloads and are therefore directly affected by copyright infringement in their own right.

Over the past year, Communications Alliance and the ISPs have been engaged in constructive discussions with Rights Holders and the Australian Government in an attempt to identify a way to address online copyright infringement that is efficient, fair and cost-effective for all parties, including consumers. This paper outlines for discussion by all stakeholders a proposal to achieve that outcome.

The proposal is for an expeditious and cost-effective 18 month 'notice and discovery' trial. Importantly, the trial would be followed by an independent evaluation of its effectiveness, including whether the trial caused a demonstrable change in user behaviour and the relative costs, benefits and impacts of the trial to ISPs and Rights Holders. The evaluation would also be informed by the growing body of international experience in this area (eg: UK, NZ, Canada and France).

The proposal is outlined at a high level and requires consultation with consumers and Government representatives, as well as Rights Holders and the broader ISP community, before its details can be finalised and an implementation timetable set.

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