On 12 October 2011 the Hon. Robert McClelland MP, Commonwealth Attorney General, launched a public consultation paper proposing amendments to Part V Division 2AA of the Copyright Act 1968 (Cth)to extend the application of the safe harbour scheme to include entities providing network access and online services. Mr McClelland announced the proposal at the biennial Copyright Law & Practice Symposium.
The proposed changes
The Attorney General proposes to broaden the scope of the safe harbour scheme in the Copyright Act to cover service providers such as educational institutions, workplaces, or online services such as search engines.
The term 'carriage service provider', originally defined in the Telecommunications Act 1997 (Cth) and adopted in the Copyright Act, would be replaced with the term 'service provider' which has been defined for consultation purposes as:
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.While the proposed definition is different to the two-tiered definition of 'service provider' under the Australia-United States Free Trade Agreement, the Attorney-General noted that the new term would be consistent with the Australia-United States Free Trade Agreement and comparable international approaches.
A brief history of the safe harbour scheme
The safe harbour scheme came about in 2006 in response to the Australia-United States Free Trade Agreement. The Copyright Actwas amended to offer legal incentives for Carriage Service Providers (CSPs) to cooperate with copyright owners in deterring copyright infringement on their networks. The safe harbour scheme effectively limits the remedies available against CSPs for copyright infringements that take place on their networks that they do not control, initiate or direct.
Defined in the Telecommunications Act 1997 (Cth), a CSP is required to operate primarily as a provider of network access to the public. The definition was adopted in the Copyright Act but its application is limited considering the pace of technological change.
Under the Copyright Act a CSP must satisfy certain conditions to take advantage of the limited remedies available against it for copyright infringement. The limitations are automatic if a carriage service provider complies with the relevant conditions.
Digital industry calls for change
The Consultation Paper highlights the fact that many organisations provide internet access to customers, students and other users, but not to 'the public'. These organisations cannot benefit from the safe harbour scheme as it currently stands.
Online search engines such as Google and Bing are also excluded from the current definition of a CSP because they do not provide 'network access'. The Consultation Paper points out that search engines face similar problems to CSPs in that they cannot control the actions of their users. As a consequence, they face legal risks under the Copyright Act when copyright is infringed through their services.
The Consultation Paper also states that the Australian definition of a CSP 'gives the Australian scheme a more restricted scope than equivalent safe harbour schemes in the United States, Singapore and Korea'. For example, United States courts have held the term 'service provider' to mean an ISP acting as a conduit for peer-to-peer file sharing programs, organisations providing instant messaging services, ISPs who provide their subscribers with news groups and online vendors.
Many organisations have lobbied the Australian Government for change. For example, the Yahoo! Group Australia & New Zealand's submission on the Digital Economy Future Directions Paper can be seen here. Google's submission on the same paper can be found here.
Call for submissions
Written submissions on the proposed definition must be sent by 22 November 2011 to the Business Law Branch, Attorney General's Department, 3-5 National Circuit, Barton ACT 2600.
Partner: Charles Alexander
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