Comms Alliance reveals failed copyright infringement notice trial

Australian online copyright infringers would already be getting notices warning them against downloading TV shows and films had rights holders agreed to fund an 18-month trial scheme that never got off the ground, the industry group representing Telstra, Optus, Vodafone, iiNet, and other telcos has revealed.

The attempt of a trial, arising out of two years of negotiations between ISPs and rights holders, was widely known, but the detail of the trial has been revealed in the Communications Alliance's submission (PDF) to the copyright infringement discussion paper released by the federal government in July.

There would have been a cap on the number of notices sent to ISPs about alleged infringement, the notices themselves would only be educational, and ISPs would not disconnect or slow down a customer's internet connection as the final "graduated step".

Instead, an infringer who repeatedly ignored notices in a 12-month period would then have their details passed onto the rights holders for them to take action with, such as taking that customer to court.

ISPs would have their costs reimbursed for manually matching IP addresses, and the cost of establishing an appeals and education organisation would be split between rights holders and the ISPs.

But the Communications Alliance said the scheme never got off the ground because rights holders didn't want to pay the costs of the trial.

"Rights holders were in broad agreement on the structure of the proposed trial, but refused to pay, or contribute to, ISPs costs, or to commit to making available more timely and affordable digital content. The discussions eventually halted pending the 2013 federal election," the Comms Alliance stated.

Rights holders only wanted the top ISPs with the most customers to be part of the scheme, which could potentially reduce the effectiveness of the scheme, because it would mean that some infringing customers would simply defect to those ISPs that escaped the scope of the trial.

The alliance also said that rights holders wanted ISPs to fund the cost, and the scheme to contain "mitigation measures" to punish repeat infringers.

The Communications Alliance argued that rights holders have claimed that copyright infringement in Australia has cost as much as AU$1.4 billion in lost sales. Should a scheme be successful, they would regain a substantial portion of that funding, and, therefore, be in a position to contribute to the scheme, the alliance said.

"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 Communications Alliance was also wary of, but open to, a proposal in the government's discussion paper that would allow rights holders to obtain a court order to have international websites containing or linking to infringing material, such as the Pirate Bay, blocked from access in Australia.

While recognising that site blocking would be "little more than a temporary solution", the industry organisation said that it could be implemented with the appropriate safeguards, and with rights holders bearing the cost.

In terms of safeguards, ISPs would need to only be required to block websites outside of Australia that were "clearly, flagrantly, and totally infringing websites", where infringement was their main source of revenue. Sites blocked must also be specific to ensure that subdomains of larger legitimate websites, such as Tumblr or Blogspot, are not blocked entirely.

ISPs should also be protected against false claims, the alliance has proposed.

Submissions on the discussion paper are due today, and it is expected that vocal opponent of the scheme iiNet will make its own separate submission, despite being a member of the Communications Alliance.

The Attorney-General's Department has not published any of the submissions yet; however, a leaked draft of the response from film studio organisations indicated that film studios remain opposed to bearing any of the cost of an infringement notice scheme.