Australia is opposed to limiting the liability of internet service providers who are found to have users infringing on copyright through their networks, according to the draft text of the Intellectual Property (IP) chapter of the Trans-Pacific Partnership (TPP) agreement leaked today by whistleblower website Wikileaks.
The TPP is an agreement that's currently being negotiated between Australia, the US, Canada, Japan, Mexico, Peru, Vietnam, Malaysia, Brunei, Chile, New Zealand, and Singapore, aimed at simplifying trade between the 12 nations.
The US and Australia are pushing for the agreement to be settled by the end of this year, but there are a number of outstanding issues in the agreement that negotiators have yet to agree upon.
The text of the agreement is still confidential, and won't be officially released until the agreement has been finalised and all parties have signed off on it, but overnight Wikileaks published the draft of the extensive, and contentious IP chapter of the agreement.
Australian negotiators had already confirmed to ZDNet that the IP chapter was one of the more complicated chapters currently under discussion, and the leaked text from Wikileaks confirms there are close to 100 outstanding issues that the countries still disagree on.
One particularly contentious article in the chapter is around limiting the liability for ISPs for the infringement of copyright committed by its users on its network. This has been proposed by seven of the 12 nations, but is opposed by the US and Australia. The so-called "safe harbour" proposal would ensure that barring a few exceptions, ISPs are not held responsible for what its users do on the network.
Australia's position against offering safe harbour for ISPs is surprising given that the High Court has ruled that one of Australia's ISPs, iiNet, was not responsible for copyright infringement occuring on its network.
The terms of reference for the Australian Law Reform Commission's review into the Copyright Act also specifically stated the commission was not to look at safe harbour provisions for ISPs.
Other provisions in the draft text would ban temporary storage of copyrighted materials, but Chile and New Zealand are currently proposing exceptions for caching and other technical requirements.
As, the draft text does include a specific article outlining enforcement of copyright law in the 12 nations. Although Australian negotiators deny that graduated response schemes for dealing with copyright infringement are still on the table, the draft text reveals that there is a notice scheme proposed by Australia, the US and Singapore that would see copyright holders issue ISPs with infringement notices comply with the agreement by removing the infringing material.
In response, ISPs can issue subscriber information such as phone number or address to the copyright holder, and a statement saying that the subscriber "agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber's address is located, or, if that address is located outside the party's territory, any other court with jurisdiction over any place in the Party's territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement."
Another clause proposed by Australia, the US, Singapore, Peru and Mexico would also seek to prohibit circumvention of "technological measures" put in place by copyright holders over their works. The definition is broad and there are a number of exceptions still up for debate, but it could be seen to include the use of virtual private networks to access geoblocked content such as Netflix from outside the US. This comes despite the Australian negotiators seeking to raise the issue of geoblocking as a concern for Australian consumers as part of the negotiations.
The Australian government, and the other negotiators as part of the TPP agreement, have not historically commented on the draft leaks of the text, but the negotiators have said that the TPP agreement will not require Australia to changes its existing copyright law.