[AusNOG] Copyright Negotiations with ISPs

[Skeeve Stevens]

Hi Ausnog,

Included below is an article from todays Commsday about the negotiations
regarding copyright enforcement, who will be spared costs, etc.

I am concerned that as an industry we don't know what the Communications
Alliance is negotiating for on our behalf, and what they will and won't
agree to - especially in responsibility, liability and costs.

The negotiations are closed-door and I am nervous that we're going to end
up with some politically negotiated burden that will cost ISPs a
significant amount of money... especially Small ISPs, the area I am most
passionate about.

Is any Ausnogger involved in this process who can let us know what is going
on?

...Skeeve



========COMMSDAY 16 FEB 2015============

*Key roadblocks remain for copyright code as deadline looms*





ISPs and copyright holders are locked in a series of urgent meetings,
rushing to finish a draft industry code to combat content piracy – with an
effective deadline looming of 20 February, this coming Friday, to conclude
negotiations.



But while the private discussions have sent good progress on many
operational aspects of the code, the two sides are still struggling to find
common ground on two key areas of dissent: who should bear the costs of the
proposed scheme, and whether ISPs should themselves be obliged to prosecute
sanctions against copyright infringers.



In the dying weeks of last year, communications minister Malcolm Turnbull
and Attorney-general George Brandis called on ISPs and rights holders to
collaborate on a new industry copyright code.



Such a code, they said, should provide a means to warn users found
illegally downloading; inform them of the possible consequences; and
publicize alternative, affordable and legitimate means of downloading the
desired material. Following a set number of warnings, it should also
provide rights owners a path to identify – and prosecute civil action
against – serial infringers.



Turnbull and Brandis set a deadline of 8 April for both sides to agree on
the code. Working back from there, the parties need to work in a 30-day
period for public comment plus additional time to examine all submissions
and make any changes to the original draft. The board of industry body
Communications Alliance would also need to sign of on the release of a
draft code for comment in the first place. The upshot: ISPs have set 20
February as the latest possible date that a draft should be publicly
released.



Negotiations between rights holders and the telco sector on copyright have,
in recent history, ranged from chilly to abortive – particularly around the
time several years ago that a collection of Hollywood studios tried
unsuccessfully to sue iiNet for copyright infringements by its users.
Nevertheless, through the current series of private meetings, CommsDay
understands that good progress has been made on several basic operational
aspects of the code: everything from how warning notices might look, to the
workflow from infringement detection onto allegations and notifications,
and how the notices themselves might be sent out.



However, there are two key areas, which remain divisive. The first is the
perennially vexed issue of who should wear the costs for implementing the
scheme. Turnbull has said it’s “reasonable to expect that the bulk of the
costs would be borne by the rights holders,” given they have the most to
gain financially from a reduction in piracy. But the exact numbers on any
cost split are proving difficult to hammer out – and there are still voices
in the debate for solutions along the entire spectrum of possible
arrangements, even up to ISPs wearing most of the costs themselves.



The second stumbling block is perhaps more surprising: behind closed doors,
there’s still dispute as to whether the code should include provision for
ISPs to level sanctions against their own users for copyright infringement,
such as redirection or throttling. Turnbull and Brandis mentioned no such
steps in their letter to industry, merely expecting the code to “[ensure
that] ISPs take reasonable steps (including the development of an education
and warning notice scheme) to deter online copy-right infringement on their
network” and “include a process for facilitated discovery to assist
rights holders in taking direct copyright infringement action against a
subscriber after an agreed number of notices.”



Indeed, ISPs have in the past expressed severe reservations around
punishing their subscribers directly for alleged copyright infringement on
the say-so of rights holders. It’s no great stretch to infer that the
renewed push for direct ISP sanctions has come from the rights holders’
side of the negotiating table.



At this stage, it’s unclear whether the two sides will be able to reach
agreement before the looming deadline. It’s not uncommon, particularly
under time pressure, for parties to find a compromise on a single issue
that then cascades into broader agreement: a ‘key log’ that enables them to
clear the whole jam.



But their alternatives are limited. Turnbull and Brandis have said that,
should there be no code by the final 8 April deadline, the government will
lay down arrangements either via an industry code prescribed by the
Attorney-general under the Copyright Act, or an industry standard
prescribed by the Australian Communications and Media Authority at the
direction of the comms minister. Failure to agree on a code would
essentially mean taking a gamble on which side of the debate the government
might come down.



Petroc Wilton


========



--

Skeeve Stevens - The ISP Guy

Email: skeeve at theispguy.com ; Twitter: @TheISPGuy
<https://twitter.com/TheISPGuy>
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