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 available 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.