The federal government "will be considering possible mechanisms to provide a legal incentive for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks," Attorney-General George Brandis told a forum on copyright this morning.
Brandis used his speech to commit to simplifying, shortening and rendering technologically neutral the Copyright Act. "No more amusing references to videotapes as we find in current section 110AA," the attorney-general told the Australian Digital Alliance event.
The Australian Law Reform Commission this week released a report addressing modernisation of Australia's copyright laws.
Brandis also used his speech to raise his government's intention to introduce measures to combat online copyright infringement. The attorney-general used iiNet's victory in a case brought against it by 34 film and television companies, led by Roadshow Films, for P2P copyright infringement by the ISP's customers to frame his discussion of anti-piracy measures.
Another option that some stakeholders have raised with me is to provide the Federal Court with explicit powers to provide for third party injunctions against ISPs, which will ultimately require ISPs to take down websites hosting infringing content
The High Court in 2012 dismissed the final avenue of appeal for the film studios. The original Federal Court judgment found that iiNet "simply cannot be seen as sanctioning, approving or countenancing copyright infringement" by its customers.
"While, as I said before, I do not believe the fundamental rationale of copyright changed with the internet, I am of the view that the internet poses a particular challenge in the area of online piracy," Brandis said.
One potential area for changes is Section 101 of the Copyright Act, Brandis said, which covers liability for copyright infringement. "It was thought that these provisions were technology neutral and applied to internet service providers, marrying up with the ‘safe harbour scheme," Brandis said.
However, given the High Court's decision in the iiNet case, "the government will be considering possible mechanisms to provide a 'legal incentive' for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.
"This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy."
Whether ISPs, the government or rights holders bore the cost of such a scheme "is one of the principal unresolved issues."
"It should also be noted that Australia has international obligations on this point and that the government will not be seeking to burden ISPs beyond what is reasonably necessary to comply appropriate domestic and international obligations," Brandis said.
"Another option that some stakeholders have raised with me is to provide the Federal Court with explicit powers to provide for third party injunctions against ISPs, which will ultimately require ISPs to take down websites hosting infringing content," the attorney-general added.