Copyright safe harbour expansion Bill passes Parliament

An expansion of copyright infringement safe harbours to the educational, cultural, and disability sectors including while using cloud service providers has passed Parliament.
Written by Corinne Reichert, Contributor

Australian Parliament has finally passed its safe harbour regime expansion to the educational, cultural, and disability sectors, including while such organisations use a cloud service provider, under the Copyright Act.

The third reading of the Copyright Amendment (Service Providers) Bill 2017 was agreed to by the Senate last month, with the Bill passing the House of Representatives on Wednesday morning.

Earlier this month, the Australian Department of Communications also released new regulations to complement the amendments.

"The changes will ensure these sectors are protected from legal liability where they can demonstrate they have taken reasonable steps to deal with copyright infringement by users of their online platforms," the department explained.

"To ensure the new sectors can comply with the scheme, we are seeking views on the Copyright Amendment (Service Providers) Regulations 2018."

The regulations remove the word "carriage" as a qualifier for "service provider" due to the expansion of the regime, and also provide for an industry code dealing with standard technical measures (STMs) and caching of copyright materials to be jointly developed by copyright owners and licensees and service providers.

According to the explanatory memorandum, STMs "relate to technical measures adopted by copyright owners to restrict use of digital materials ie copy protection".

The regulations that would come into force at the same time the Copyright Amendment (Service Providers) Act 2018 commences. The department is seeking submissions from interested parties by the end of this week.

The government had tabled its response to the Bill last month, noting the "ongoing entrenched and polarised views of stakeholders on safe harbour reform" as a reason for not supporting an extension of safe harbours to all carriage and service providers.

In its response, it rejected the Australian Greens dissenting recommendation that "service provider" be defined as "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".

However, the government supported in principle the Greens' suggestion that it clarify in the explanatory memorandum "the language related to activities that are carried out by a third-party provider 'on behalf' of an entity that is a 'service provider'".

"The addendum clarifies the government's intention that institutions that will come within the definition of 'service provider' in the Bill may engage third parties, such as cloud service providers, to carry out some or all of system and network activities on their behalf," the government response said.

"By doing so, that institution will retain safe harbour protection."

The government response reiterated that it would skip geoblocking reforms, however.

The Senate committee had in March advised extending the safe harbour regime, though it stopped short of adding all providers of online services including cloud computing services, search engines, and online bulletin boards.

The department had described its approach to safe harbour reform as being "incremental" in that it will firstly extend it to educational, cultural, and disability organisations and institutions, and will then continue undertaking stakeholder consultation to "try and understand and unpick all of the issues around such a complex issue".

"Incremental reform also allows the government to develop conditions for safe harbours in synchrony with international developments to ensure that our scheme is effective and consistent with our international counterparts," the department said, with the recently revealed intellectual property chapter of the Trans-Pacific Partnership with its 11 remaining signatories (TPP 11) outlining a safe harbour regime.

According to the department, there was also "disputed evidence about how important safe harbour is to innovation" during the safe harbour consultation after the Greens had said "the limited definition of 'service providers' used in this Bill, which excludes Australian tech companies and online content providers, [is] stifling innovation and the ability of Australian tech companies to compete internationally".

According to the Greens, the Bill does not solve issues such as risking copyright infringement by operating a search engine; removing digital locks from legally purchased ebooks so as to read them on different devices; not being able to copy DVDs to tablets; and playing online videos in a presentation to a group.

The government has also been consulting on implementing a fair use provision as part of its ongoing Copyright Act modernisation regime.

The Australian government passed digital fair dealing for the Copyright Actin June last year, with the Copyright Amendment (Disability Access and Other Measures) Bill 2017 making provisions for access to copyright material by those with a disability, along with protecting educational facilities, key cultural institutions, libraries, and archives.

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