Copyright Review Commission Report - ICT Law and Regulation ...

4.4.6. In exchange for the above limitations, OSPs have agreed to an injunctive procedure commonly known as ‘noticeand take-down’, covered by Section 77 of the ECT Act. In terms of this procedure, when someone becomesaware of unlawful material residing on or unlawful action taking place on an OSP system or network, he or shemay notify the OSP of the infringement and require it to remove or disable access to the unlawful material oractivity.4.4.7. The Act further provides in Section 77(3) that a “service provider is not liable for wrongful take-down in responseto a notification”. Strangely, this sweeping exemption does not require the OSP to have acted in good faith. Norare OSPs under a general obligation to monitor the data they transmit or store, or actively to seek facts orcircumstances that indicate unlawful activity.4.5 DEVELOPMENT OF THE ‘3 STRIKES’ INTERNATIONALLY4.5.1. Countries such as France, the UK and New Zealand have introduced a system of graduated responses toinfringements that culminates in the suspension of access services to individuals.4.5.2. In France, this is commonly known as the HADOPI system.4.5.2.1. HADOPI is an acronym of the French government agency created to administer the system – HauteAutorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet.4.5.2.2. This law was introduced during 2009 as a means to control and regulate Internet access and encouragecompliance with copyright law (Loi 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de lacreation sur internet [Law 2009-669 of June 12 2009 on Promoting the Distribution and Protection ofCreative Works on the Internet]).4.5.2.3. Billboard.biz reports that it is unknown how many file sharers receive warnings from France's new P2Pinfringement authority, but French labels are sending 25 000 complaints a day to HADOPI.4.5.3. In the United Kingdom:4.5.3.1. The Digital Economy Act, which regulates digital media, came into force on 8 June 2010.4.5.3.2. The Act inter alia adopted measures to curb the online infringement of copyright. The Act provides that theOffice of Communications (Ofcom) must take responsibility for putting in place: Technical measures – which may limit Internet access, including suspending access entirely; Appeals process – a tribunal providing for an independent appeal; An obligation on ISPs and copyright owners – a fine of up to £250 000 levied on those incontravention; and Blocking Internet locations from which a substantial amount of material has been, is being or is likelyto be made available in infringement of copyright.4.5.3.3. Internet service providers in the UK are currently challenging the constitutionality of certain provisions ofthis law.- 36 -