Government consulting on safe harbour industry code regulations

The new regulations will enable service providers and copyright holders to develop an industry code on complying with the safe harbour regime with reference to standard technical measures and caching.
Written by Corinne Reichert, Contributor

Parliament is getting ready to pass its amendments to modernise the Copyright Act, with the Australian Department of Communications releasing new regulations to complement the legislation.

The Copyright Amendment (Service Providers) Bill 2017 will expand the safe harbour regime to the educational, cultural, and disability sectors, including while such organisations use a cloud service provider. The newly published exposure draft of the regulations is designed to help these sectors comply with the safe harbour regime.

"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".

"An industry code may contain any or all of the following: A provision relating to accommodating and not interfering with standard technical measures; a provision to the effect that standard technical measures are technical measures that are used to protect and identify copyright material, and are accepted under the code or developed in accordance with a process set out in the code, and are available on non-discriminatory terms, and do not impose substantial costs on the designated service providers or substantial burdens on their systems or networks," the regulations say.

A code must also contain a provision on "updating copyright material that is cached; and not interfering with technology used at the originating site to obtain information about the use of the copyright material", with the code also required to be published on service providers' websites.

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 June 29, with one point of consultation on whether any other additional requirements are necessary for a new industry code to be developed, as well as whether the proposed code scheme has enough flexibility.

The Australian government had last month added cloud to the safe harbour regime, with the third reading of the Bill agreed to by the Senate on May 10. It has yet to pass the House of Representatives.

The government had tabled its response to the Senate Environment and Communications Legislation Committee at the time, 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 also reiterated that it would skip geoblocking reforms.

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's consultation on also implementing a fair use provision as part of its ongoing Copyright Act modernisation regime closed on Monday this week.

"By using digital technology, we can now create, distribute, and consume content faster and more easily than ever before. Our policies and laws need to keep up with these changes and continue to reflect the interests of copyright creators, users, and distributors," the department said when launching the fair use consultation paper.

The Australian government passed digital fair dealing for the Copyright Act in 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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