Clayton Utz Insights
29 March 2012
By Timothy Webb.
Internet intermediaries support reforming the copyright infringement safe harbour scheme, while rights-holders want the ALRC to consider the issue.
Since 2005, carriage service providers (CSPs) have been able to limit the remedies available against them for copyright infringement relating to certain online activities by adhering to specified conditions in the so-called "safe harbour scheme". This was implemented via amendments to the Copyright Act 1968 (Cth) in response to the Australia-United States Free Trade Agreement (AUSFTA).
For some time there has been debate about whether the provisions of the safe harbour scheme cover a sufficient range of online service providers. On 14 October 2011 the Commonwealth Attorney-General launched a public consultation paper proposing to broaden the safe harbour scheme, focusing on the definition of "carriage service provider".
The current safe harbour laws
Currently, CSPs are persons who:
"supply, or propose to supply, a listed carriage service to the public using a network unit owned by one or more carriers, or a network unit in relation to which a nominated carrier declaration is in force."
This distinguishes CSPs from content service providers. A CSP may provide the means to view the contents of a web site, but not determine or know its contents. It may also be a content service provider to the extent that it makes its own content available.
The safe harbour consultation paper
The consultation paper identified what the Government regards as two main gaps in the safe harbour scheme:
- many organisations operate servers to provide internet access to clients, customers and students but not to "the public", as required under the definition of a CSP; and
- a wide range of people use the services of content service providers such as search engines, online vendors and social media sites, but these providers are not necessarily aware of what the service is being used for.
Accordingly, the consultation paper proposes that the provisions apply to "service providers", which could be defined as:
"A person who provides services relating to, or provides connections for, the transmission or routing of data; or operates facilities for, online services or network access, but does not include such person or class of persons as the Minister may prescribe in the Regulations."
The consultation paper elicited submissions from industry groups, rights-holders and academics, which generally fell into two camps. Online intermediaries largely supported the proposed amendments, while copyright holders generally either opposed them or thought them premature. We look at the key issues raised in the consultation paper and some of the responses from both camps below.
Who is covered – carriage service providers or all service providers?
Support for the expansion of the safe harbour scheme came from the Internet Industry Association (IIA), Communications Alliance, Ericsson Australia, the National Film and Sound Archive of Australia (NFSA), Australian Digital Alliance (ADA) and Australian Libraries Copyright Committee (ALCC).
Less enthusiastic were the Australian Copyright Council (ACC), Copyright Agency Ltd (CAL), Screenrights, and the joint submission of the Australasian Performing Right Association Limited (APRA) and Australasian Mechanical Copyright Owners Society Limited (AMCOS).
Submissions from both camps however noted deficiencies in the current and proposed definition. For example, the IIA suggested developing a definition that picks up existing terminology in the Telecommunications Act 1997 (Cth).
The complexity of the problem
Many of the submissions had concerns that the complex issues arising from copyright and safe harbour were not being fully considered. For example:
- The ACC wants intermediary liability to be fully considered;
- CAL questioned whether the proposed approach ignores opportunities for co-operation between content owners and service providers; and
- NFSA called for due consideration of the Convergence Review and the copyright implications of a convergent media environment. It also proposed deterrents to minimise bad faith notifications, and efficient and streamlined notice and take-down procedures.
There were also calls for any changes to be deferred until the Australian Law Reform Commission finishes its upcoming review of copyright (ACC, CAL, Screenrights and APRA|AMCOS).
The Ministerial power to exclude
The consultation paper proposes giving the Minister a right to exclude a person or class from the safe harbour scheme.
This was not supported by several submissions, which contended that this power would discourage innovation and investment in Australia's digital economy (such as those from Communications Alliance, Ericsson Australia, APRA|AMCOS and ADA/ALCC).
The NFSA did support having clear grounds for the Minister to use an exclusion power, if the power is deemed necessary.
What about educational institutions?
Should educational institutions be a separate class covered by the scheme? Screenrights said no, while CAL preferred to seehow the changes would aid educational institutions before commenting on them. Unsurprisingly, given their membership, both the ADA and ALCC strongly supported safe harbour for non-profit educational institutions for copyright infringement by faculty members or students.
The existing safe harbour scheme in Australia is relatively restricted when compared with similar regimes in other countries, such as the United States, Singapore and Korea. While the Australian Government is clearly minded to amend its safe harbour scheme to cover a broader range of service providers, the timing of any changes is unclear. Predictably, internet intermediaries support the proposed reform, while rights-holders press for the issue to be deferred for consideration by the ALRC.
Industry participants and their lawyers need to be aware of the existing law and monitor any changes. CSPs should seek to comply with the statutory conditions applicable to their online activity, service providers (other than CSPs) whose businesses involve online activities need to be aware of the remedies that can be sought and take steps to manage any risk of copyright infringement, while rights-holders must take account of the distinction in considering infringement action.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
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