Australia seeks cost limits for TPP piracy crackdown

ISPs should act on notices of copyright infringement, but not if it costs too much to implement, according to a new draft Trans-Pacific Partnership IP chapter leak.
Written by Josh Taylor, Contributor

A new leaked draft of the Trans-Pacific Partnership agreement's IP chapter reveals that while Australia is pushing to obligate ISPs to act on copyright infringement, they shouldn't have to bear large costs for it.

The TPP agreement is a currently being negotiated between Australia, the US, Canada, Japan, Mexico, Peru, Vietnam, Malaysia, Brunei, Chile, New Zealand, and Singapore, aimed at simplifying trade between the 12 nations.

The negotiations have been held confidential, and text of the agreement has not been made public.

However, Wikileaks has previously leaked a draft of the IP chapter from back in August last year, which critics have said would sign Australia up to significant new penalties for users caught sharing copyright-infringing material online, and potentially new obligations for ISPs to enforce copyright for the rights holders.

Australian negotiators have previously claimed that the so-called three-strikes system that punishes internet users alleged to have infringed is "off the table" but in the latest leak of the draft IP chapter provided by Wikileaks on Thursday, ISPs will still be obligated to take a number of steps to act on notices provided to them from copyright holders on users' infringement in order to avoid being liable for that alleged infringement.

The draft chapter proposes that each signatory to the agreement should have a framework for "remedies for rights holders to address copyright infringement in the online environment", and only limit liability for online service providers who  participate in a system for sending notices for alleged infringement, as proposed by Canada, and remove or disable access to the alleged infringing material.

In a bid to prevent copyright infringement through caching and otherwise automated processes, the text spells out that ISPs and other service providers wouldn't be liable for those incidental infringements.

Australia, however, appears to be proposing to limit the obligations of ISPs in places where complying with the proposed scheme.

"The limitations in paragraph 2 shall not be conditioned on the service provider undertaking measures that impose substantial costs or substantial burdens on their systems or networks," Australia has proposed.

Organisations that make "knowing material misrepresentation" in notifications or counter-notifications of alleged copyright infringement would also face fines, according to the draft text.

It comes as the Australian government is developing proposals to address online copyright infringement, with a potential graduated response scheme currently being considered. ISPs such as iiNet and Telstra seeking to make rights holders pay for policing their copyright, but rights holders are reluctant to sign up to a system that would force them to pay for notice schemes, such as that in operation in New Zealand.

The government is facing strong lobbying from rights holders to implement a scheme, with a survey put out by the Intellectual Property Awareness Foundation claiming 29 percent of Australian adults claim to be "active pirates" downloading films and TV shows regularly.

Speaking at an industry event earlier this week, National Association of Cinema operators Australasia chairman Terry Jackman reportedly said that the government was seeking to make illicit downloading of TV shows, films, and music a "mortal sin", but faces resistance from the more progressive section of the Labor opposition.

"The Labor Opposition [also] says that piracy is stealing," he reportedly said. "The problem we have is the fact that the left wing said 'you can have all the legislation you like, but you can't penalise'."

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