The Safe Harbour scheme, at the centre of the Australian Federation Against Copyright Theft (AFACT) case against internet service provider iiNet, may be extended to Google and Yahoo.
"The Australian Government will consider whether the scope of the safe harbour scheme should be expanded to include additional types of online service providers," the Department of Broadband Communications and the Digital Economy's Future Directions paper released yesterday.
The scheme was introduced in 2004 under the Australia-United States Free Trade Agreement and was designed to encourage ISPs and telcos to cooperate with copyright owners to deter infringement by reducing the potential liability of providers if they assist copyright owners' efforts to prevent infringements via, for example, file-sharing.
The scheme is also at the centre of the legal battle between AFACT and iiNet, with AFACT arguing that the ISP failed to alert its customers to acts of copyright infringement.
The paper has not outlined a time frame for the review or defined what type of online service providers might be brought under the scheme.
The consultation paper on which the Future Directions paper was based asked stakeholders whether the scheme should be broadened; whether Australia's copyright law limited internet services; and whether any non-copyright law created uncertainty.
Responses that were handed to the government earlier this year fell along expected lines. Google and Yahoo had argued in their submissions that the provision should be expanded to their operations, while the International Intellectual Property Alliance, the Australian Performing Right Association, the Australian Recording Industry Association and the Australian Publishers Association argued strongly against expansion.
Google argued that its inability to use safe harbours was inconsistent with provisions in the US and New Zealand, and said it was at a disadvantage to ISPs and telcos in Australia that can use it as a defence. It also argued its exclusion from the scheme may prevent further investments in Australia.
"Google submits that a lack of safe harbour will be highlighted as a serious potential risk factor — potentially making Australia a less attractive venue to set up business," Google Australia's head of government and regulatory affairs Carolyn Dalton wrote in the company's submission.
Telstra's Sensis similarly argued for the expansion of the provision to remove uncertainty over how it deals with counterfeit products sold on its web service.