29 April 2011

A leading intellectual property lawyer has proposed an illegal file sharing resolution scheme based on the successful model used in Australia and globally to resolve disputes over the use and allocation of domain names.

Robert Gregory, Information, Communication & Technology partner at Maddocks, says that while the recent iiNet case provides some guidance it fails to provide a long-term solution to growing problem of illegal file sharing.

“What is needed to resolve this major issue is a simple industry based resolution scheme that provides content owners, internet service providers (ISPs)and consumers with a transparent, fast and economical way to deal with disputes,” said Mr Gregory.

“We don’t need to reinvent the wheel to come up with a scheme that we know will work."

“Here in Australia and around the world the Uniform Domain-Name Dispute-Resolution Policy (auDRP & UDRP) process has been used for about ten years to resolve disputes involving the registration of internet domain names."

“A similar scheme, drawing from key elements of the UDRP process, could be developed relatively quickly to allow disputes between content owners, ISPs and their customers to be resolved quickly and efficiently,” said Mr Gregory.

The key elements of the scheme would include:

• An independent, non-profit, self-funding industry body representing content owners, ISPs and consumers called Online Dispute Resolution Co Ltd (ODR Co);
• Membership of ODR Co would be voluntary for ISPs, but only members would be able to use the dispute resolution scheme;
• ODR Co would have a board of directors elected by content owners, ISPs and consumer representatives. It would have an independent Chair and directors, as well as observers, from government organisations such as the ACCC and ACMA;
• The initial task of ODR Co would be to consult on, draft and adopt an agreed dispute resolution process along the lines of the criteria suggested by Justice Emmet in his iiNet appeal his judgement;
• Once the dispute resolution process is adopted ODR Co would receive complaints, check for administrative compliance with the process's formal requirements and then appoint independent panels to hear and determine disputes;
• A panel would determine if a user has infringed a content owner’s intellectual property rights and, if so, what sanction should be imposed. This could include a fine or some sort of interruption to their internet service;
• ISPs who are members of the scheme would agree to implement panel decisions unless the customer commenced court proceedings to declare that they had not infringed the intellectual property rights, in which case no action would be taken until the court proceedings were resolved. This would vastly reduce the number and cost of court proceedings ISPs and content owners would need to be involved in, while still ensuring users have access to the courts if they wish.;
• The dispute resolution process may (but not necessarily) be given formal status as a voluntary or mandatory industry code under the Competition and Consumer Act or Telecommunications Act;
• The scheme would be reviewed after two years to determine its effectiveness.

Mr Gregory said the internet is for everyone and all rights need to be protected.

“A balance must be struck between the legitimate rights of content owners and the needs of ISPs to protect their investments and to provide a quality service to their customers, without which the Internet cannot function," said Mr Gregory.

“This resolution process, which is based on an approach that already has a proven track record, provides all stakeholders with a fair and fast way of resolving this major problem.".