[LINK] leaked treaty, no policing role for ISPs in copyright breaches
stephen at melbpc.org.au
stephen at melbpc.org.au
Wed Sep 8 00:35:02 EST 2010
Piracy setback for movie giants
Louisa Hearn September 7, 2010 - 2:48PM
The movie giants appear to have lost key political backing in their
international efforts to police illegal downloading through ISPs,
throwing the legal spotlight back on to the long running piracy case
launched against iiNet in Australia.
Knowledge Ecology International, an organisation that investigates
intellectual property rights, claims to have published a leaked version
of the most recent draft of an international copyright treaty that does
not prescribe a policing role for ISPs in copyright breaches.
This international treaty, called the Anti-counterfeiting Trade Agreement
(ACTA), is an international effort to create a legal framework that will
guide policy makers tasked with setting national copyright laws.
The film industry has been lobbying hard to make ISPs liable for tracking
users illegally downloading copyright content, and implementing a three-
strikes policy that cuts off infringers' internet usage after three
Although early rumours circulating about the treaty indicated ISPs might
be handed responsibility for policing this, the latest leaked draft
appears to back away from that scenario.
Rick Shera, a blogger and intellectual property lawyer for Lowndes Jordan
in New Zealand, writes on his blog that the draft appears to "remove
most, if not all, requirements for treaty countries to impose third party
liability on ISPs and other third party providers", leaving only "a
relatively benign set of provisions".
"The awaited decision on the iiNet appeal in Australia, heard last month,
becomes more important. In the absence of ACTA dictating third party
liability principles, iiNet will become the touchstone," he writes.
In the eight-week iiNet trial, an Australian court examined whether or
not the ISP authorised customers to download pirated movies and Justice
Dennis Cowdroy found in February that the ISP was not liable for the
downloading activities of its customers.
Now that finding is being appealed against, the outcome of the case will
take on much wider significance, say industry watchers.
Peter Coroneos chief executive of the Internet Industry Association said
that, although the treaty would come too late to influence the outcome of
the iiNet case, it could affect the outcome of cases launched by the film
industry in the future.
He added that if the conditions proposed in the leaked draft treaty
prevailed, then the outcome of the iiNet case would be likely to have a
significant influence on future Australian piracy cases.
"Company obligations would be defined by the outcome of this case and the
subsequent appeal, but the treaty will have more weight in setting up a
de facto global standard," he said.
Steve Dalby, chief regulatory officer for iiNet said he had previously
received assurances that the new treaty would not imbue ISPs with
responsibility for policing the actions of their users with a three-
"This is really a conversation that has being going on around the world
in a variety of jurisdictions ... but there is no fine detail about how
it all might work ... we've said it just isn't going to work."
The Australian Federation Against Copyright Theft (AFACT), which launched
the court action against iiNet, did not want to comment specifically on
the leaked document, but a spokesperson said: "AFACT has always
maintained that ISPs have a responsibility to prevent online copyright
theft. With the opportunity to carry content comes a responsibility to
protect it. ISPs have a duty to ensure that their profits do not come at
the expense of the rights of the creative
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