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The Aus-Korea Free Trade Agreement Could Sink iiNet's Piracy Ruling

The Korea-Australia Free Trade Agreement (KAFTA) aims to open up commerce between Australia and its third largest trading partner, removing tariffs on the export of wheat, sugar, wine and other commodities. There’s a sticking point, though; Korea wants our Copyright Act amended to compel ISPs to prevent piracy, and iiNet’s landmark piracy trial ruling canceled out.

Pointed out by Brendan Molloy, a member of the Pirate Party in Australia, the KAFTA National Interest Analysis from the Department of Foreign Affairs and Trade contains a few references to copyright.

Most relevantly, a sentence in the Implementation section mentions, towards the end of its first paragraph, the suggestion that for the Free Trade Agreement to come into effect, an amendment to the Copyright Act will be required “in due course”:

Consistent with Australia’s existing obligations in the Australia-US and Australia-Singapore FTAs, and to fully implement its obligations under KAFTA, the Copyright Act 1968 will require amendment in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers

“A legal incentive for online service providers to cooperate with copyright owners” is, essentially, exactly what iiNet chief regulatory officer Steve Dalby recently spoke out against in a blog post on the company’s website, first spotted by iTnews.

iiNet’s long-running and contentious Federal and High Court trial against Roadshow Films and AFACT established a legal precedent that ISPs should not be liable for the actions of their users in illegally accessing and downloading content that infringes the copyright of media rights-holders.

The KAFTA, it seems, requires that this legal precedent be nullified and the Copyright Act be amended to require ISPs to actively assist copyright holders — likely in identifying alleged pirates, sharing their details with the allegedly aggrieved media companies and forwarding those companies’ infringement notices to end users.

It’s also interesting that the wording suggests that this amendment is implied or required by the free trade deals between Australia and the US and Australia and Singapore as part of the Trans-Pacific Partnership, which would explain the government push to implement various anti-piracy and anti-infringement measures since current Attorney-General government minister George Brandis took office in September last year.

Molloy is not happy about the situation: in his words, “the mess just keeps getting worse.” In his post, he also mentions that Australia’s Productivity Commission explicitly mentioned that changes to intellectual property should not be implemented as part of international free trade agreements without carefully considering the consequences, in a report back in 2010.

At the end of last year, trade minister Andrew Robb made assurances that ISPs would not be held liable for the actions of their users. [Brendan Molloy]


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