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TPP: ISPs will hand over copyright infringer details

The full text of the TPP ties in with WikiLeaks' leaked document last month, stating that ISPs must hand over copyright infringer details to rights holders when legally compelled.
Written by Corinne Reichert, Contributor

Trans Pacific Partnership (TPP) member states will force internet service providers (ISPs) to give up identification details of alleged copyright infringers so that rights holders can protect and enforce their copyright through criminal and civil means with few limitations, according to the full text of the agreement.

The TPP, the full text of which has been published on the website for the New Zealand Ministry of Foreign Affairs and Trade a month after reaching agreement, will regulate trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile.

Section J of the Intellectual Property chapter [PDF] covers ISPs, with Article 18.82(7) stating that member states must enable copyright holders to access the details of alleged copyright infringers through ISPs.

"Each party shall provide procedures, whether judicial or administrative, in accordance with that party's legal system, and consistent with principles of due process and privacy, that enable a copyright owner that has made a legally sufficient claim of copyright infringement to obtain expeditiously from an internet service provider information in the provider's possession identifying the alleged infringer, in cases in which that information is sought for the purpose of protecting or enforcing that copyright," the text says.

The full text of the intellectual property chapter ties in with leaks last month from WikiLeaks revealing that ISPs would be forced to give up copyright infringer details.

Article 18.74(13) states that judicial authorities have the power to order copyright infringers to identify any other person involved in the alleged infringement, as well as the channels they used to obtain and distribute infringing goods or services.

Under Article 18.82(1)(a), ISPs will be provided with "legal incentives" to cooperate with rights holders on deterring storage and transmission of copyrighted goods and services.

The current Canadian "Notice and Notice Regime" already requires ISPs to forward notifications from copyright owners to customers whose IP address has allegedly infringed the copyright in question, with ISPs able to be ordered by court to reveal customer details associated with IP addresses to copyright owners in order for the owner to launch legal proceedings for copyright infringement.

Foreign Affairs, Trade, and Development Canada's summary of the TPP's intellectual property chapter in October stated that the TPP would "reflect" its intellectual property regime.

Similarly, Australia's three-strikes policy will soon be implemented for those who are caught downloading copyrighted material. The draft code [PDF] was released by ISPs and rights holders, which were asked to collaborate by Attorney-General George Brandis and Communications Minister cum Prime Minister Malcolm Turnbull in late 2014.

Under the regime, rights holders will send reports to ISPs identifying IP addresses that have allegedly infringed on copyright, with the ISPs to then match IP addresses with account holders and send the associated customers infringement notices. Customers can be warned three times over a 12-month period in escalating education notices, warning notices, and final notices, after which the ISP must make a user's details obtainable through a Federal Court order.

Once the identity of the infringer is obtained and the matter brought before court, TPP Article 18.74 mandates that the judiciary must provide damages "adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right".

In order to calculate the monetary amount for these damages, the judicial authorities may consider "any legitimate measure of value the right holder submits", including profit loss, the market value of the goods or services, and the recommended retail price, according to Article 18.74(4).

Judicial systems must also build a framework for calculating pre-established damages in order to both compensate the rights holder and deter the rights infringer, and additional damages, which should take into account the "nature" of the conduct as well as future deterrence.

The losing party in a court proceeding will pay the costs and legal fees of both parties, as well as the cost of any experts that were needed to take part, as long as these costs are reasonable.

The damages to be imposed under the Australian system will likely be affected by a recent judicial decision, with the Federal Court in April ordering several ISPs to disclose the customer details associated with 4,726 IP addresses that had allegedly breached the copyright of Dallas Buyers Club (DBC) by downloading infringing copies of the film.

In August, the court's decision on damages did not cover an amount specifically for the purpose of deterring future infringements, unlike the TPP chapter -- only the concrete costs of buying the film and the amount required for DBC to obtain the infringer's details -- so the damages to be charged under a TPP scheme could potentially be higher than the Federal Court-approved system.

For wilful piracy conducted on a commercial scale for profit, Article 18.77(6) holds that penalties can include imprisonment and fines "sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity".

As well as enforcing rights and punishing those who infringe them, however, the TPP has attempted to balance this out with a non-exhaustive list of limitations and exceptions.

Outlined in Articles 18.65 and 18.66, copyright infringement for the following purposes are limited from prosecution: Criticism, comment, news reporting, research, teaching, scholarship, and other similar purposes; as well as providing access for those with visual impairments.

As an additional limitation, non-profit libraries, archives, museums, educational institutions, and public non-commercial broadcasters cannot be targeted by criminal penalties and, provided they did not know their conduct was prohibited, civil penalties, according to Article 18.68(1).

ISPs also cannot be held liable for copyright infringements by their customers, according to Article 18.82(1)(b).

In regards to limitations, the former Labor government in Australia had called for a review of its Copyright Act in 2012 to consider bringing the legislation up to date with the digital world, with the Australian Law Reform Commission (ALRC) arguing that similar to the laws in the US, a "fair use" exception when a person is accused of copyright infringement should be outlined within the revamped law.

Research for the purposes of study, education, news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be limited from prosecution.

The technology sector would in particular benefit from the addition of the non-commercial private use and technical use exemptions, as they would cover data caches, cloud computing, digital recording, and transferring of content.

The cost-benefit analysis concerning the ALRC's recommendations into the Copyright Act is expected to be completed by the end of this year, but since the TPP chapter mandates that member states implement fair use and safe harbour provisions, it will likely impact the government's decision and resulting amendments.

Finally, to combat online piracy, Article 18.73 states that all TPP members must now collect, analyse, and publish data on copyright infringement, and use this to come up with an effective strategy for preventing and combating future infringements.

This has already been done in Australia to a certain extent: Research released in July by the Australian Department of Communications revealed that only 21 percent of respondents said an education notice would prevent them from consuming copyrighted content for free -- and that users who consume paid content in addition to downloading copyright-infringing content actually spend more than users who consume only non-infringing content.

"Rights holders' most powerful tool to combat online copyright infringement is making content accessible, timely, and affordable to consumers," Australian Prime Minister Malcolm Turnbull admitted in July.

The TPP has yet to be signed and ratified by the 12 Pacific Rim nations that are parties to it.

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