Australia: Widening the scope Of Safe Harbour Scheme to cover online service providers

Last Updated: 22 October 2011
Article by Richard Pascoe and Lisa More

Last Friday, 14 October, the Attorney General published a public consultation paper outlining proposed amendments to the Safe Harbour Scheme provisions of the Copyright Act 1968 which would broaden its scope to cover online service providers.

What is the Safe Harbour Scheme?

Safe Harbour Schemes were developed to protect entities who host, store and transfer content from copyright infringement proceedings because of actions of their end users. However, the protection is dependent on these entities putting in place schemes that deter copyright infringement on their networks.

The Australian Safe Harbour Scheme is set out in Division 2AA of Part 5 of the Copyright Act. It provides that carriage service providers are entitled to reduced liability for copyright infringement if they conform with certain conditions set out in section 116AH of the Copyright Act.

These conditions are divided into four categories depending on the type of service that is offered. The Attorney General's public consultation paper describes these categories as the following:

  1. acting as a conduit for internet activities (that is, the relevant activity is carried out at the direction of a user, rather than at its own initiation);
  2. caching through an automatic process;
  3. storing copyright material on a system or network; and
  4. referring users to an online location (for example through linking).

Some examples of the conditions that must be adhered to in order to take advantage of the Safe Harbour Scheme include the following:

  • reasonably implementing policies that provide for the termination of repeat infringers of copyright;
  • complying with industry codes that are in force;
  • not making any substantive modifications to the material transmitted;
  • removing, or disabling access to, any cached copyright material expeditiously following the required notification; and
  • not receiving a financial benefit from the infringing activity.

If the applicable conditions are complied with, a court cannot grant a remedy against the entity that includes damages on account of profits, additional damages or other monetary relief (section 116AG of the Copyright Act).

In other words, the entity is not financially liable for any copyright infringement by a third party.

Who does it apply to?

Presently, the Safe Harbour Scheme is only available to entities which fall within the definition of "carriage service providers" under the Telecommunications Act 1997.

This therefore restricts those able to take advantage of the Safe Harbour Scheme to those persons who:

  • supply a listed carriage service to the public using a network unit owned by one or more carriers or a network unit that has a nominated carrier declaration; and
  • operate as a provider of network access to the public.

This represents only a portion of the online content providers, as many of those do not fall within the Telecommunications Act definitions of a carriage service provider.

What is the current proposal suggesting?

The Attorney General is proposing to broaden the scope of the Safe Harbour Scheme so that it is de-coupled from the definitions in the Telecommunications Act and therefore available to the wider group service providers and operators of online services who fall the wider group of outside the definition of carriage service providers.

This new group who could take advantage of the Safe Harbour Scheme would be defined as "service providers" and the present proposal includes the following draft definition:

"A person who provides services relating to, or provides connections for, the transmission or routing of data; or operates facilities for, online services or network access, but does not include such person or class of persons as the Minister may prescribe in the Regulations".

Eligibility for protection under the Safe Harbour Scheme would still be in accordance with prescribed conditions as discussed above.

This proposal is considered to be in line with the international position that countries such as the United States, Korea and Singapore have taken on this topic. Accordingly, the policy behind the Safe Harbour Scheme is not changing; this proposal is just broadening the availability of its protections.

Can I comment?

The Attorney General is accepting submissions on this consultation paper until 22 November 2011. In particular the Attorney General is interested in comments on its proposed definition of "service providers" as set out above.

More details about the submissions process is available at:

Other items of interest

  1. Obtaining information from Internet Service Providers When the Attorney General first published this paper it also included commentary on a process that sought to streamline the ability of copyright owners to obtain information from internet service providers about users who engage in copyright infringing activity. This was removed and the Attorney General's Department has stated that it was a draft document included in the proposal by mistake and has not clarified when, or if, the correct proposal will be released. However, we expect to see another proposal outlining this idea more substantially in the near future.
  2. Copyright Code There is growing support for an industry code to be created to supplement the current Copyright Act. The rapid pace of technological development, coupled with the out-dated Copyright Act have copyright experts agreeing that a copyright code is one of the best ways to encourage right holders and online content providers to deal with end user infringements on an agreed framework rather than relying on large scale litigation.

Want to know more?

For more information please contact Richard Pascoe or Lisa More at Truman Hoyle.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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