The changes to the Copyright Act are designed to make
the law easier for the disability, educational, libraries and
archives sectors, and expand the scope of the safe harbour scheme
to include online service providers.
The Department of Communications and the Arts has stated that
the changes are designed to:
streamline the educational statutory licence provisions, making
it easier and simpler for educational institutions and copyright
collecting societies to agree on licensing arrangements for the
copying and communication of copyright material;
provide simple, clear rules for libraries, archives and key
cultural institutions to make preservation copies of copyright
align the terms of protection for unpublished works with those
for published works to provide libraries, archives and other
cultural institutions with greater opportunities to use, and
provide public access, to unpublished works; and
ensure that search engines, universities and libraries have
safe harbour protection if they comply with conditions aimed at
reducing online copyright infringement.
The expansion of the safe harbour scheme has been the subject of
debate, industry submissions and Government consideration for many
years, and is discussed further below.
Expanding the scope of the safe harbour scheme
Since 2005, carriage service providers (CSPs)
have been able to limit the remedies available against them for
copyright infringement relating to four categories of online
activities by adhering to specified conditions in the so-called
safe harbour scheme.
CSPs are persons who:
"supply, or propose to supply, a
listed carriage service to the public using a network unit owned by
one or more carriers, or a network unit in relation to which a
nominated carrier declaration is in force."
The activities for which protection is available are:
Category A – providing facilities or services for the
transmission of copyright material;
Category B – caching through an automated process;
Category C – storing copyright material at the direction
of a user; and
Category D – referring users to an online location using
information location tools.
There has been debate about whether the provisions of the safe
harbour scheme cover a sufficient range of online service
providers. The exposure draft of the Bill would expand the scheme
to cover a broader range of entities, including educational
institutions and other online services (such as online search
engines, bulletin boards and cloud storage services).
To achieve this the Government has proposed a new definition of
"service provider", which:
in relation to category A activities
under the scheme — means:
"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"
in relation to category B, C and D
activities under the scheme — means:
"a provider or operator of
facilities for online services or network access"
Notably, the scheme would not exclude such person or class of
persons as the Minister may prescribe in the Regulations, as was
proposed by the Government in a public consultation paper several
How can I make a submission?
The Department has released a
Guiding Questions paper with background and context about the
proposed amendments, and questions designed to guide submissions.
The Department invites people and organisations interested in
updating Australia's copyright laws to submit their views on
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Ugg boots case revolves around who holds the trade mark rights to the word 'Ugg' in relation to sheepskin boots.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).