We have just lodged our submission to the Communications Alliance draft industry code to introduce a copyright notice scheme.
In making this submission, we suggest that Australia learn from the experiences of other jurisdictions, and avoid some of the mistakes that have been made. In particular, this involves:
- Ensuring that adequate information is available to evaluate the success of the scheme/li>
- Ensuring that notices sent to consumers provide full and accurate information that helps them understand their rights and options
- Limiting the potential abuse of the system, and particularly attempts to intimidate consumers into paying unfair penalties through ‘speculative invoicing’
- Avoiding the potential for actual or perceived bias in the scheme’s oversight body
You can view the submission here.
Clear metrics to measure the success of the scheme should be developed and agreed upon before it commences.
A code of ethical conduct for use of the scheme that includes undertakings that:
- Notices are issued in a good faith belief of their accuracy; and
- Any offers to settle potential infringement suits will strictly be limited to a compensatory amount.
All notices issued to consumers should:
- Be drafted in a public, consultative process, with input from rightsholders, ISPs, consumer groups, and legal experts;
- Contain comprehensive information about limitations and exceptions to copyright infringement; and
Provide clear guidance about how consumers can contest allegations cheaply and effectively.
The scheme should include safeguards to ensure transparency and enable rigorous public oversight. In particular, we recommend that:
- All notices should be sent in an anonymised form to a clearinghouse for independent analysis and review of the scheme;
- Comprehensive statistics should be compiled and made publicly available on a continuous basis about the numbers of each type of notice received and sent by ISPs, the outcomes of any appeals, and other relevant information.
Without prejudicing any confidential information, the results of audits of detection methodologies and accompanying reasons should be made publicly available.
The composition of the Copyright Information Panel Executive Committee should include two additional independent members.
In order to improve due process:
- Any notice issued to a user should be contestable for the full period in which it is in force;
- The burden of proof should not lie with a consumer to prove that they did not infringe, especially if the details of detection methodology used is confidential;
- Appeals process should incorporate protection for natural justice, be determined by independent arbitrators, and require the transparent reporting of all decisions.