[pp.au.general] Three strikes copyright talks spark fear online

[Michael Nadler]

http://www.abc.net.au/news/stories/2009/11/10/2738733.htm


The Australian Government is sparking fear and loathing online as it
negotiates a global treaty on copyright which could see internet users
disconnected after three illegal download complaints.

The 'three strikes and you're offline' policy is part of a proposed
international treaty on intellectual property and Australia is part of
negotiations.

Depending on what you read about it, the Anti-Counterfeiting Trade Agreement
(ACTA) is either a campaign against internet users and service providers, or
a much-needed response to massive fraud and theft online of copyright
material.

Australia has been part of negotiations for the treaty since 2007 and was
involved in the latest round of talks last week in Korea.

Peter Coroneos is chief executive of Australia's Internet Industry
Association and from his point of view, there is a lack of information about
what the treaty might actually mean.

He says while the association is in talks with negotiators, details remain
thin on the ground.

"The Australian Government negotiators are not at liberty to really canvass
the issues under discussion in any great detail or even share
documentation," he said.

"On and off, yes [negotiators are talking to us], but unfortunately whenever
we ask them to provide us with details, actual texts, things that are
actually really the substantial elements under discussion, they are bound by
the terms of the multilateral negotiations, which basically means that they
say at least they can't provide us with this information."

The Department of Foreign Affairs says it has been briefing relevant
stakeholders and seeking submissions on relevant issues but that has not
halted escalating fears among online rights activists and internet providers
over what the treaty will contain, especially after a European Union
briefing paper was leaked, showing the United States is pushing for a tough
regime on internet providers to contain illegal downloads.

Graduated response

Said to be on the table are so-called graduated response measures. These
would require internet providers to disconnect users who illegally trade in
copyrighted material.

Similar measures are already in place in the United States and in France.

Kim Weatherall, a senior lecturer in intellectual property law at the
University of Queensland, says there are fears that internet service
providers (ISPs) may have to come up with extra regulation.

"The idea of graduated response has quite a lot of detail behind it," she
said.

"When we think of graduated response, we think of a system where ISPs will
be required by law or regulation to send warning letters to people who are
said to be infringing, perhaps escalating that to choking internet service
and perhaps even the extreme end, terminate the internet service in
infringers.

"Now under our current law, the ISP safe harbours actually give over quite a
lot of discretion to the ISP.

"They more or less say ISPs must adopt some sort of policy to deal with
repeat infringers but there is no detail about that.

"So I think what people are concerned about is that suddenly we are going to
get a whole lot of extra regulation put in by a treaty which sets out a
system that ISPs must observe at their own expense, no doubt, in order to
deal with copyright infringement."

iiNet court case

The question of copyright protection in Australia is being tested in another
forum.

The Federal Court is hearing a case where the internet provider iiNet is
being sued by film and television distributors over illegal sharing on its
networks.

That case is back in court this week for final arguments, although a
decision is not expected soon and perhaps not until next year.

Ms Weatherall says part of the concern about the treaty negotiations is that
they are touching on the regulation of internet providers - at the same time
as the current framework is being tested in the iiNet case.

"The meaning of the current safe harbours and what it means to adopt
reasonably influential policies for dealing with copyright infringers is
being tested," she said.

"So it is being discussed at an Australian level in Australian courts and
then, if something were to come down from the court that didn't work for
industry, they could go to the Australian Government and lobby and get laws
changed.

"I think what they are concerned about is that we will get something in a
treaty and once it is in a treaty, you know you can't lobby government and
say this has to change because it said it at an international level."
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