Australia: Bill to extend the copyright safe harbour provisions introduced

Last Updated: 18 December 2017
Article by Ian Robertson and Sarah Butler
Most Read Contributor in Australia, August 2018

On 6 December 2017 the Turnbull Government introduced the Copyright Amendment (Service Providers) Bill 2017 (Cth) (Bill) (available here).

The Bill proposes to extend the safe harbour provisions set out in the Copyright Act 1968 (Cth) (Act) to the disability, education, library, archive and cultural sectors, and is the result of extensive consultation by the Government with interested stakeholders across the communications and technology sectors.

The amendments contained in the Bill are limited in scope and, if the Bill is passed in its current form, the safe harbour scheme protections will remain available to only a restricted class of entities when compared to similar schemes in other countries.

The current safe harbour scheme

The safe harbour scheme, which is set out in Division 2AA of Part V of the Act, currently applies to carriage service providers (CSPs). A CSP is defined in the Telecommunications Act 1997 (Cth) as a person that supplies a listed carriage service to the public using a network unit owned by one or more carriers, or a network unit that is subject to a nominated carrier declaration. In short, the definition covers owners of telecommunications networks that use those networks to supply members of the public with voice and broadband services, and also covers other telecommunications companies that use the networks of others to provide such voice and broadband services to the public. This means that telecommunications companies such as Telstra, Optus, TPG and Vodafone are able to benefit from the safe harbour provisions. However, online platform operators, such as Google and Facebook, to name two obvious examples, which do not supply communications services, do not have this protection.

The safe harbour scheme was considered to be necessary as there was a perceived risk that, notwithstanding the limited ability of CSPs to control the content on their systems, CSPs could be found liable for copyright infringement by their customers. This is the case as the Act provides that copyright is infringed by someone who "authorises" another to copy or make available a copyright-protected work. The safe harbour regime, introduced in 2006, limits this risk.

Under the scheme, provided the relevant conditions are met, a court must not make an order for damages or other monetary relief against the relevant CSP, though certain other orders may be made (such as that a CSP must terminate a specified account). To benefit, CSPs must satisfy various conditions under the Act. The conditions that must be satisfied vary, depending on the type of activity the CSP undertakes. A base requirement to benefit from the safe harbour is that a CSP must implement a policy that may result in the accounts of repeat infringers being terminated from using its system or network.

Expanding the scope of the safe harbour scheme

The Bill introduces a new definition of "service provider" into the safe harbour scheme. This broadens the categories of persons who are able to take advantage of the safe harbour scheme, to include, in addition to CSPs:

  • educational institutions, through their administering bodies, including universities, schools, technical colleges, training bodies and pre-schools
  • libraries that either make their collection available to the public or are Parliamentary libraries, through their administering bodies
  • archives, through their administering bodies, including the National Archives of Australia and specified state archives, galleries and museums
  • key cultural institutions, through their administering bodies, primarily specific archives and libraries that develops and maintains collections of works that are of historical or cultural significance to Australia; and
  • organisations assisting persons with a disability.

However, for these additional entities, other than those assisting persons with a disability or a body administering an educational institution that is also a body corporate, the protection only applies to activities carried out because of the relationship with the relevant institution.

According to the Minister for Communications and the Arts, the Hon Mitch Fifield, the Bill will "ensure these sectors are protected from legal liability where they can demonstrate that they have taken reasonable steps to deal with copyright infringement by users of their online platform" (see Minister Fifield's media release here).

Online platforms will not be protected

Notably, the Bill does not extend the safe harbour protections to online platforms more generally, such as Google and Facebook. This is despite the Government previously consulting on such a proposal in late 2015/early 2016 and the subsequent recommendation in the Productivity Commission's 2016 inquiry report into Intellectual Property Arrangements that "the Australian Government should ... expand the safe harbour scheme to encompass the full range of online services providers, as occurs in other countries" (recommendation 19.1, p. 40).

The scope of the safe harbour scheme has been the subject of extensive consultation and lobbying over a long period of time in Australia. Unsurprisingly, while the technology sector generally strongly supports a broader extension of the scheme, content creators strongly oppose this. Therefore, the limited scope of the extension of the scheme provided in the Bill is seen as a "win" by the content creation sector.

However, if the Bill is passed (and noting the Bill was introduced in the Senate and was immediately referred to the Senate Standing Committee on Environment and Communications, which is not due to report until March 2018), it is unlikely that this will be the last reform to these contentious provisions of the Act. In his media release announcing the Bill, Minister Fifield stated that the Government will continue to work with stakeholders on reforms to the safe harbour scheme to ensure that it is "fit for purpose and reflective of world's best practice" before looking to apply it to other online service providers.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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.

Authors
Ian Robertson
Sarah Butler
 
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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions