Proposal to clarify the Australian Copyright Act

The Australian Federal Attorney-General Robert McClelland opened a public consultation to discuss his proposal to change the Australian Copyright Act 1968. McClelland’s main objective is to add a possibility for copyright holders to request a court order to force ISPs to hand over information of subscribers suspected of downloading illegal files.

Currently, following the Australian Privacy Act and the Telecommunications Act, an Australian ISP can only be forced to hand over subscriber’s information to either a law enforcement agency or a court, and not to a private party such as a copyright holder. However, it is possible for a copyright holder to obtain information from an ISP using the Federal Court, but the information thus required is not enough to identify the online infringer (no name and address, only IP address). The proposed changes will make it possible for copyright holders to force ISPs to hand over information to identify a specific subscriber with a court order.

To request a court order under McClelland’s proposal, copyright holders need to provide information of the suspected subscriber such as his IP address, the infringing material and the exact date and time of the infringement. With this information a judge decides if a court order is issued to force the subscribers’ ISP to hand over the necessary identifying information.

Through the consultation, McClelland wishes to see if the proposed measures are necessary and desirable. McClelland's proposal focuses primarily on the adjustment of the Australian Copyright Safe Harbour regime. This regime provides the conditions under which an ISP is liable for information from users that is stored on or goes through their systems and networks. McClelland proposes to change the Australian definition of 'carriage service providers’ into 'service providers’. By changing the definition, both access providers and online service providers like Google and Yahoo would be included under the definition and thus the Safe Harbour regime.

Changing the definition into ‘service providers’ and to place Google and Yahoo under the Safe Harbour regime might look like an extension of the protection of online service providers, but through the change Google and Yahoo can also be faced with court orders to provide specific information to copyright holders. At the moment this is not possible.

The public consultation is open until 22 November 2011. Until then, it is possible for individuals, businesses, ISPs and other interested parties to express their views on the proposal.

Read McClelland’s proposal here.

References: The Australian, Australian Government - Attorney-General's Departement

By: Karen Groen