04 Feb 2016

Australian Government proposes various changes to the Copyright Act

by Timothy Webb

The changes to the Copyright Act are designed to make the law easier for the disability, educational, libraries and archives sectors, and expand the scope of the safe harbour scheme to include online service providers.

The Australian Government has released for public comment an exposure draft of the Copyright Amendment (Disability Access and Other Measures) Bill that would amend the Copyright Act 1968 (Cth).

The Department of Communications and the Arts has stated that the changes are designed to:

  • streamline the educational statutory licence provisions, making it easier and simpler for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material;
  • provide simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material;
  • align the terms of protection for unpublished works with those for published works to provide libraries, archives and other cultural institutions with greater opportunities to use, and provide public access, to unpublished works; and
  • ensure that search engines, universities and libraries have safe harbour protection if they comply with conditions aimed at reducing online copyright infringement.

The expansion of the safe harbour scheme has been the subject of debate, industry submissions and Government consideration for many years, and is discussed further below.

Expanding the scope of the safe harbour scheme

Since 2005, carriage service providers (CSPs) have been able to limit the remedies available against them for copyright infringement relating to four categories of online activities by adhering to specified conditions in the so-called safe harbour scheme.

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."

The activities for which protection is available are:

  • Category A – providing facilities or services for the transmission of copyright material;
  • Category B – caching through an automated process;
  • Category C – storing copyright material at the direction of a user; and
  • Category D – referring users to an online location using information location tools.

There has been debate about whether the provisions of the safe harbour scheme cover a sufficient range of online service providers. The exposure draft of the Bill would expand the scheme to cover a broader range of entities, including educational institutions and other online services (such as online search engines, bulletin boards and cloud storage services).

To achieve this the Government has proposed a new definition of "service provider", which:

in relation to category A activities under the scheme — means:

"a provider of transmission, routing or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing"

in relation to category B, C and D activities under the scheme — means:

"a provider or operator of facilities for online services or network access"

Notably, the scheme would not exclude such person or class of persons as the Minister may prescribe in the Regulations, as was proposed by the Government in a public consultation paper several years ago.

How can I make a submission?

The Department has released a Guiding Questions paper with background and context about the proposed amendments, and questions designed to guide submissions. The Department invites people and organisations interested in updating Australia's copyright laws to submit their views on these topics.

Submissions can be lodged via the Department's website or emailed to [email protected]

The consultation period ends on 12 February 2016.

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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 communication. Persons listed may not be admitted in all States and Territories.