October 15, 2015
Game Of Thrones is one of the most illegally downloaded TV shows in Australia. Picture: Foxtel
IF YOU have ever downloaded, or more importantly uploaded movies, TV shows and music, be scared. Be very scared.
According to a leaked version of the highly secretive Trans-Pacific Partnership deal, rights holders such as Hollywood studios could soon be able to sue you for lots of money.
Wikileaks posted what it says is a leaked version of the agreementthat would not only force internet Service Providers to hand over the details of illegal downloaders to the big studios (rights holders), but they will also be required to keep track of persistent pirates and dob them in.
More alarmingly, the leaked TPP document says that it wants all the countries signed up to the deal to basically change their laws to make it easier for the studios to take copyright infringers to court and seek undisclosed damages.
Just how much a person would be liable, the document says, would depend on the nature of the infringement with a “pre-established damages” framework to be put in place but one that “would be sufficient to compensate the right holder for the harm caused by the infringement, and with a view to deterring future infringements”.
Earlier this year the makers of the Oscar award-winning film Dallas Buyers Club took the Australian ISPs iiNet, Dodo, Internode, Amnet Broadband, Adam internet and Wideband Networks to court seeking the names and addresses of around 4700 Australians who allegedly infringed copyright by sharing the film online and won.
However their case was dealt a major blow in August when Federal Court judge Justice Nye Perram refused to order the release of customer’s names and address unless they changed their claim.
Justice Perram found DBC’s proposal to charge those who shared the film thousands of dollars in licensing fees went beyond the scope of being “untenable”.
He did find the company could be entitled to the cost of renting or buying the film and for costs associated with finding the name of an alleged downloader.
In a bid to ensure the company would not overstep its mark he also stipulated that the stay on the release of the details would only be dropped if DBC agreed to a $600,000 bond which it would lose if it breached court orders.
Under the leaked TPP agreement, the damages sought by a copyright holders in an Australian court could be much higher.
The document also says that ISPs would have to bear the costs of tracking down and identifying alleged pirates saying they would to “expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the infringement”. But it also says countries signed up to the deal should also provide “legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials”.
Under previous leaked versions of the TPP, costs were to be incurred by the studios, ZDNet reported.
In Australia, the debate over who would bear the burden of the costs associated with having to track down and identify illegal downloaders has held up the implementation of the controversial three strikes policy.
Australia ISP companies put together a Copyright Notice Scheme Industry Code in a bid to reduce online piracy.
Under the code, customers suspected of illegally downloading content would be hit with a series of escalating infringement notices from ISPs.
After the first breach, a customer would be emailed a standardised “Education” notice and if they continued to breach copyright laws they would be sent a “Warning” notice followed by a “Final” notice.
The ISPs plan to detect illegal downloading through customers’ internet protocol (IP) addresses, and then send warning letters to the account holder.
The email must be sent within seven days of the infringement and include the title of the work, and the date and time of when the downloading occurred.
The final notice, which does not have to carry the ISP’s branding, warns that the account holder could be taken to court and recommends they “seek independent legal advice”.
The “three strikes and you’re out” scheme can then kick off a “facilitated preliminary discovery process”, which obliges the ISP to serve up the customer’s identity to the rights holder.
If a customer receives three notices within 12 months, the owners of the content — such as Hollywood studios or record companies — can then apply to a court to access the customer’s name, address and contact details and launch legal action against them.
The code was meant to be implemented in September but has stalled over the dispute between the ISPs and copyright holders over who should foot the bill for the process.
It looks as though under the leaked TPP, the ISPs would have to fund the code.
While the TPP has yet to be signed and ratified by the 12 Pacific Rim nations of the US, Mexico, Canada, Australia, Japan, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei, Wikileaks says the document is the “highly sort after secret ‘final’ agreed version of the TPP (Trans-Pacific Partnership) Chapter on Intellectual Property Rights”.
“There is still a finishing ‘legal scrub’ of the document meant to occur, but there are to be no more negotiations between the Parties.
“The treaty has been negotiated in secret by delegations from each of these 12 countries, who together account for 40% of global GDP. The Chapter covers the agreed obligations and enforcement mechanisms for copyright, trademark and patent law for the Parties to the agreement.
“The document is dated October 5, the same day it was announced in Atlanta, Georgia USA that the 12 nations had managed to reach an accord after five and half years of negotiations.
Following the announcement, Australia’s Trade Minister Andrew Robb said preparations were still being made to release the TPP text before it would be formally signed.
“Each country will then undertake its domestic treaty-making process,” he said. “For Australia, this will involve tabling the treaty text in parliament along with a National Interest Analysis and a review by the Joint Standing Committee on Treaties to which all interested parties can make submissions.”
Earlier this year laws were passed which allow copyright holders to apply to the Federal Court to block overseas websites that offer content that infringes copyright.
The anti-piracy legislation was passed in June.
It basically allows Hollywood studios and record companies to apply directly to the court for an injunction to disable access to the sites without having to establish whether the carriage service providers, which house the sites, are liable for the offending content.
In order to get the site block, copyright holders would need to meet an “intentionally high threshold test” so that only sites that “flagrantly disregard the rights of copyright owners” were taken down.