Australian government consulting on safe harbour extension to online services

The Australian government will consult with stakeholders on whether to extend the safe harbour provision to all online service providers, such as cloud services and search engines, in addition to ISPs.
Written by Corinne Reichert, Contributor

The Australian government has announced that it will hold a series of consultations with stakeholders on extending the safe harbour provisions in the Copyright Act to cover all online service providers.

The proposed amendment would extend the provision beyond internet service providers (ISPs) to also encompass providers such as cloud computing services, search engines, and online bulletin boards.

The provision would protect these online service providers from legal liability for any copyright infringement taking place via the services they provide -- as long as they take "reasonable steps" to remove copyright-infringing material, Communications Minister Mitch Fifield said.

"An expanded safe harbour regime would provide a useful mechanism for rights holders to have material that infringes their copyright removed from online service providers," Fifield said.

"An expanded regime would also ensure that service providers are not held responsible for the infringing actions of their users, provided they take reasonable steps to take down material that infringes copyright."

Department of Communications Secretary Heather Smith will run several roundtable discussions with interested stakeholders on the proposed extension of the safe harbour provision, with Smith to advise the government in June on how it should proceed.

The announcement follows the Productivity Commission last year recommending that Australia apply the safe harbour provision to all online service providers.

"Online service providers, such as cloud computing firms, would face fewer impediments to establish operations in Australia," the Productivity Commission said in December.

"The copyright system will be more adaptable as new services and technologies are developed, facilitating greater innovation. Aligning with international systems further reduces business uncertainty."

The commission had added that Australia's current copyright laws are skewed in favour of rights holders to the detriment of consumers, and said that the government should adopt the Australian Law Reform Commission's recommendations to implement a fair use provision in the Copyright Act.

"Fair use would similarly allow Australia's copyright arrangements to adapt to new circumstances, technologies, and uses over time," the commission said at the time.

Fifield pointed out that the government is currently pushing several piracy-related reforms on copyright law, including through the Copyright Amendment (Online Infringement) Act 2015 , which passed both houses of parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright.

In addition, the Copyright Amendment (Disability Access and Other Measures) Bill 2017, introduced last month, was designed to ensure that libraries, archives, educational facilities, cultural institutions, and the disability sector have "reasonable access" to copyrighted content, with their usage of copyright material not constituting infringement.

Back in November, the Joint Standing Committee on Treaties recommended that the government pass the safe harbour provisions amendment to the Copyright Act in order to ensure that Australia would not be in breach of its international obligations as described under the Trans-Pacific Partnership (TPP) trade deal.

Section H of the Intellectual Property chapter of the TPP had mandated that member states implement both fair use and safe harbour provisions.

"Each party shall ensure that legal remedies are available for right holders to address such copyright infringement, and shall establish or maintain appropriate safe harbours in respect of online services that are internet service providers," Article 18.82 said.

Articles 18.68, 18.69, and 18.74 also provided that criminal and civil penalties do not apply to "a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity".

The committee's recommendation followed the Australian Digital Alliance and Copyright Advisory Group in October arguing at a TPP hearing that without the more extensive safe harbour provisions under the proposed Copyright Act amendments, Australia would be in breach of its international law obligations.

While the TPP is now on ice following the United States' abandonment of the multilateral trade deal thanks to the election of Donald Trump, the Australian Treaties Committee said the fact that a Bill exists to expand safe harbour provisions to schools, universities, and online service providers shows that the problem is "real" and the law must be amended.

"In Australia, a mistake was made in the amendment to the Copyright Act that included the safe harbours provision. The Copyright Act contains a safe harbour provision for 'carriage service providers' only. This means that commercial ISPs are provided safe harbour protection, but schools and universities are not," the report said.

"The problem is an Australian one. The fact that the issues raised during the inquiry in relation to safe harbours provisions has reached the stage of being addressed in a draft Bill would indicate to the committee that the problem is real. The committee recommends the Australian government progress the safe harbours amendments to the Copyright Act."

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