Aus’ three-strikes piracy scheme wasn’t ’ditched’

Following the admission in February by Village Roadshow boss Graham Burke that Australia’s three-strikes piracy scheme had been put on the back burner, Communications Alliance has confirmed it. 

A letter co-signed by co-signed by the telecommunications industry body and Foxtel, and sent to the Australian Communications and Media Authority (ACMA) on April 28, notes the scheme has been given a breather of sorts.

Confirming media reports from earlier this year that implementing the scheme would be too costly, the letter states the interested parties, including Australian Internet Service Providers (ISPs) had not reached an agreement on involved costs. 

“While the text of the code was agreed between the parties, negotiations were still underway to finalise an associated commercial agreement to address a range of issues, including costsharing, underpinning the operation of the CNS,” the letter reads. 

“It has not proved possible to reach agreement on how to apportion all of the costs for the overall operation of the CNS [Copyright Notice Scheme].” 

However, Comms Alliance CEO John Stanton told TMN the interested parties might revive the code after a review in 2017.

“ISPs and rights holders will jointly review the situation in April 2017 to decide whether there remains a case for trying to reinvigorate the commercial discussions and get a code up and running,” he said.

Crucially though, the negotiations between interested rights holders and ISPs were still ongoing with the code forming just one part of their collaboration. The letter notes the “lack of agreement is not due to any shortage of good-faith effort by the parties.”

Both parties are involved in separate Federal Court cases against offshore proxy sites. Australia’s three major labels, along with music rights management company Alberts and collecting society APRA AMCOS is seeking action against eight offshore proxy sites, including Kickass Torrents. The case is set down for hearing on October 25 and 26.

A case brought by Foxtel to have piracy websites including The Pirate Bay, Torrentz and isoHunt blocked is also underway, while Village Roadshow’s motion to have SolarMovie.ph blocked will return to court on June 23.

The three cases are the first of their nature to be heard in Federal Court since the passing of section 115A of the Copyright Act 1968 (Cth) last June.

Speaking to TMN, Music Rights Australia GM Vanessa Hutley noted the decision to take a breather from the scheme’s discussions was done in the interests of preserving the work achieved in lodging the draft code with ACMA. 

"Often the commentary of the Copyright Notice Scheme focuses only on the issues which are outstanding between the parties," she said. "It is often overlooked that the parties made huge progress to get the draft scheme developed.

“[...] At the moment our focus is on other strategies, such as the 115A case,” she added. “The CNS will be revisited next year. Taking time out is not a bad thing sometimes. It allows the parties time to refocus and review."

The letter to ACMA does state that the focus has shifted toward website blocking, hinting that the rights holders and ISPs involved have decided to focus their resources on those cases for now.

“In recent months and following enactment of s115A of the Copyright Act 1968, the focus around deterrence of online copyright infringement has shifted to the application for court injunctions to enable the blocking of overseas hosted websites that facilitate online copyright infringement,” it reads. “In this regard, ISPs and rights holders have again been working cooperatively towards agreed court orders which prescribe a practicable and efficient set of actions.” 

Australia is often singled out as one of the biggest culprits contributing to online piracy. A MUSO study found that during October 2015, Australians visited the most popular 18 piracy domains more than 16 million times. It was the worst culprit in the world for downloading Game Of Thrones last year. In October 2015 piracy sites like The Pirate Bay and Torrentz.Eu received 5.2 million visits from Australian audiences.

While the ’three strikes’ Draft Code is a landmark achievement in the battle to curb online copyright infringement, there is no silver bullet for the global issue. New Zealand’s ‘three strikes’ law, known as the Copyright (Infringing File Sharing) Amendment Act 2011, has seen costs involved for a copyright holder outweigh the end result in many cases.

Costing an applicant $25 per warning, and $200 if they decide to lodge an official complaint, copyright holders are looking at in excess of $300 per complaint without the guarantee that the works or material will cease to be used by the infringer.

Hutley told TMN Music Rights Australia maintains education is still an important part of the issue.

"There are over 20 licensed online music services in Australia which are available across a range of devices and at price points including free on some ad  supported services," she told TMN. "However, despite these choices, the music industry is still feeling the negative impact which unlicensed use has on the wider music community including  songwriters, music publishers and record labels."

Hutley also noted the industry body supports the introduction of an online advertising code so brands no longer inadvertently place ads on illegal sites.  

"If brands and online platforms adopted these principles then the illegal sites would be denied the advertising revenue which keeps them going," she said. "These sites give nothing back to the to the music community, they make money only for their operators. The approach is called ’follow the money’ but service providers and brands have yet to sign up to this important initiative."