With the shadow of the Anti-Counterfeiting Trade Agreement (ACTA) hanging over the local Internet industry, now is the time for ISPs to strike commercial agreements with content providers, rendering the anti-piracy treaty superfluous, Professor of Law and Director of the UTS Communications Law Centre, Michael Fraser, has argued. Speaking to Computerworld Australia Fraser said both ISPs and content providers were increasingly realising that a commercial, rather than legal, resolution to the issue of piracy online was preferable.
"The best approach to these issues... is to do a commercial deal and bring the ISPs into the value chain," he said. "Rather than litigate [content providers] should include ISPs in the supply chain and ensure they get a fair part of the reward and allow access to content via the ISPs."
According to Fraser, much of the motivation to establish the ACTA in the first place was being driven by international pressure to establish a viable market environment online.
Rather than legislate that ISPs be responsible for blocking websites which facilitated copyright infringement, a commercial approach to addressing online piracy would both achieve this goal and have the additional benefit of being more flexible, Fraser said.
"Everyone wins," he said. "The consumer wins because they can get legitimate access to content, content owners who are being put out of business continue to live, and ISPs get traffic and a return on ... helping make [content] available."
Despite ACTA continuing to be under negotiation, Fraser urged content providers and ISPs to push ahead with their own negotiations, particularly given ACTA's references to ISPs being held liable for copyright infringing material when they were reliably informed of it and did not act to block access to it.
"That's a fallback position and there is a much better code of conduct which is enforceable but flexible which content owners and ISPs should develop for themselves. The fact that most access to content is online means those commercial agreements have to be done.
"There was a time when the internet was a free for all and people are nostalgic for that but when you have got creators, products and services are being so easily ripped off now a commercial arrangement has to be made by the parties. If not then Governemnt acting under the umbrella of a treaty like this will."
Earlier this week the draft text of the ACTA being negotiated by 10 nations and the European Union was released.
The 39-page document states the parties to the agreement will give intellectual property rights holders access to their judicial systems to pursue civil actions and that the identity of persons involved in infringements be made available.
The agreement also provides for the issuing of an interlocutory injunction on third parties to prevent imminent infringements and obliges signatories to "ensure that the rights of the defendants and third parties shall be duly protected and guaranteed".
Specific to online service providers the draft text shows parties have not yet reached agreement on what liability should be present and what civil remedies should be allowed if an infringement occurs on a provider's service.