Senate committee recommends expanding copyright safe harbours

A Senate committee has recommended copyright safe harbours be extended to cultural, educational, and disability organisations and institutions but not tech companies.
Written by Corinne Reichert, Contributor

While a Senate committee has advised extending the safe harbour regime under the Copyright Act, it has stopped short of adding all providers of online services, including cloud computing services, search engines, and online bulletin boards.

The Senate Environment and Communications Legislation Committee has recommended [PDF] that the Copyright Amendment (Service Providers) Bill 2017 be passed, which would expand safe harbours to educational institutions, libraries, archives, galleries, museums, key cultural institutions, and organisations assisting those with a disability.

The Department of Communications had outlined the government's approach to safe harbour reform as being "incremental" in that it will firstly extend it to the above 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.

TPP 11 is slated to take effect in Australia before the end of 2018, with the government having been previously warned by the Copyright Advisory Group that Australia would be in breach of its obligations under the former iteration of the TPP without more extensive safe harbour provisions.

According to the department, there was also "disputed evidence about how important safe harbour is to innovation", with the committee noting that the safe harbour consultation saw "highly polarised views and lack of consensus".

"Similarly, the committee received conflicting evidence. In particular, the committee notes the evidence from those arguing that safe harbour reform will benefit innovation. However, in its evidence to the committee, the department stated that it did not find evidence to support this argument," the committee said.

"Given the divergence of stakeholder views and the complexity of the issues being considered, the committee supports the government's incremental approach to safe harbour reform. The proposed amendments will ensure that educational and cultural institutions and organisations assisting people with a disability will be afforded protection immediately. The committee considers this to be a balanced and reasonable approach."

In a dissenting report, however, the Australian Greens party said its members "do not support the piecemeal manner in which the government are addressing the long-overdue updating of Australian copyright laws".

"We do not support the limited definition of 'service providers' used in this Bill, which excludes Australian tech companies and online content providers, stifling innovation and the ability of Australian tech companies to compete internationally," the Greens report said.

According to the Australian 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 being illegal; not being able to copy DVDs to tablets; playing online videos in a presentation to a group being illegal; and comedians being able to use material in parody or satire but artists not.

"A safe harbour would allow content providers to make information and culture available online and will be protected by common activities -- transmitting data, caching, hosting and referring users to an online location -- where service providers do not control, initiate, or direct the users' online activities are currently not covered by the scheme," the Greens said.

"These protections are not extended to digital innovators or tech companies."

This is a breach of Australia-United States Free Trade Agreement (AUSFTA) obligations, under which Australia is supposed to "provide liability limitations for service providers for copyright infringement", the Greens party said, as pointed out by submissions from Google, the Law Council of Australia, Digital Rights Watch, and Digital Industry Group.

"The Australian Greens recommend that the government continues to review copyright legislation to introduce a fair use exception and to remove geocodes that enforce different prices and conditions of use of content by Australian consumers," it added.

The Australian Digital Alliance (ADA) welcomed the changes made by the Bill, but said more needs to be done for extending safe harbours to all service providers.

"The amendments in the Bill provide an immediate fix for one of the big problems with Australia's safe harbour regime: Ensuring Australia's schools, universities, libraries, archives, museums and disability groups have the same legal protections as commercial ISPs," ADA executive officer Jessica Coates said.

"But it does nothing for the other big problem -- ensuring our technology companies are able to compete in the global market ... until we have complete safe harbour reform, it will be the startups that have chosen to make Australia their home who will suffer harm."

This committee report came in spite of the federal government's response to the Productivity Commission's report into intellectual property in August, which supported "in principle" the recommendation that it extend the safe harbour scheme to cover all providers of online services, including cloud computing services, search engines, and online bulletin boards.

However, it did not lend its full support to the recommendations on circumventing geoblocking technology, implementing a fair use exception for copyright infringement.

Earlier this week, though, the government launched a consultation paper on implementing a fair use provision as part of its ongoing Copyright Act modernisation regime.

The Copyright modernisation consultation paper [PDF], published on Monday, lays out questions on flexible exceptions, contracting out of copyright exceptions, and access to orphan works.

"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 of Communications said.

The Australian government passed digital fair dealing for the Copyright Actin June, 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 from copyright infringement.

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