Australian ‘Three Strikes’ Anti-Piracy Code: What You Need To Know

The final version of the proposed “three strikes” anti-piracy code for Australian internet service providers (ISPs) has just been published. Assuming this is approved by the regulator, there will soon be new rules that allow movie and TV studios to seek details of alleged downloaders after they have been sent three warnings.

Pirate picture from Shutterstock

Industry body the Communications Alliance has submitted the final version of its proposal to the Australian Communications and Media Authority (ACMA), which will decide whether to approve and register it. An industry code has to be in place by September 1 or else legislation (which it’s widely presumed will be nastier) will be introduced. If agreement on implementation can be reached, it could happen earlier.

The basic details are the same as in the draft code released last month: studios can contact ISPs with IP addresses alleged to have infringed, and the ISP must send a warning to the customer associated with that address. After three such warnings, the studio can demand details of the customer. Our detailed discussion of the draft has more information on how the process will work.

One of the biggest omissions in the draft code — how the process will be funded — still hasn’t been finalised. This has been a major sticking point: ISPs don’t want to be forced to pay for studio enforcement activities, but the studios aren’t keen to cough up either.

The new version does clarify some other issues from the draft version. It will apply to all ISPs with more than 1000 customers, a total estimated at around 70 and covering every ISP you’re likely to have heard of. The entire scheme is not allowed to generate more than 200,000 requests in a calendar year — which isn’t very many in a country of 25 million people. There will also be a limit on the number of requests that must be handled each year for individual ISPs, but this hasn’t been specified yet.

The most notable improvement is the removal of the $25 fee for consumers to challenge an infringement notice. Given the difficulties involved in identifying specific individuals purely through an IP address, we’d expect this option will now be used a lot.

Don’t get too excited, though: there’s a get-out clause around the fee which appears designed to thwart organised campaigns against those notices:

No fee will be payable upon lodgement of the Challenge Notice unless the CIP determines that there is an excessive number of Challenge Notices that appear intended to undermine the integrity and proper functioning of this Scheme. If the CIP, after consultation with the ACMA, determines to introduce a fee, the CIP will give reasonable prior notice of the introduction of the fee and ensure that the fee is small. Any such fee if and if so when introduced would be payable by the Account Holder upon lodgement.

The Copyright Information Panel which will manage the scheme will also now have two consumer representatives; in the draft, it only had one.

The code development is happening in parallel with the Dallas Buyer’s Club case, where the producers of that movie have won the right to have details of alleged infringers disclosed by ISPs. The two approaches aren’t mutually exclusive: while the new code would provide a formal mechanism for demanding those details, studios would still have to sue individuals in order to seek legal redress. Either way, lawsuits against downloaders seem likely to be more common in Australia.