Government mulls expanded copyright safe harbour

Bill could help protect search engines from being sued over piracy

Draft amendments to Australian copyright law unveiled late last year by the government would expand the ‘safe harbour’ scheme that limits the liability of Internet service providers for copyright infringement.

Currently the Copyright Act 1968 contains a safe harbour scheme that means, providing certain conditions are met (such as removing access to copyright material when requested), an ISP can’t be liable for damages if a customer employs its services to infringe copyright.

Beyond providing Internet access the relevant section of the act covers a number of other activities, such as providing an online storage service that may be employed by a customer to store pirated material.

However, the provisions only apply to carriage service providers, defined as telcos and ISPs that supply network services to the public; the measures exclude, for example, universities that supply Internet access to their students and purely online service providers such as search engines or cloud storage providers.

The exposure draft of a bill that amends the Copyright Act would replace ‘carriage service provider’ with 'service provider'. The new term would include providers of network access and online services.

Extending Australia’s safe harbour scheme has previously been backed by universities as well as Google.

In a submission to the ongoing Productivity Commission inquiry into Australia’s intellectual property regime, Google said that excluding online service providers from the safe harbour scheme “makes Australia a much more high-risk legal environment for hosting content when compared to countries that have safe harbour schemes with broad application”.

(Services covered under the current limited safe harbour scheme include referring users “to an online location using information location tools or technology”.)

The government’s proposed amendments to the Copyright Act incorporate a number of other measures, including amendments to fair dealing provisions related to making copyright material available to people with disabilities, preservation copying by libraries and archives, and consolidating the statutory licences for the use of copyright material by educational organisations.

Read more: Google slams Australian copyright laws

A document accompanying an exposure draft of the bill acknowledges that the Productivity Commission is yet to issue its report on intellectual property in Australia.

“It is appropriate to proceed with the amendments contained in the Bill before the Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission in relation to limitations and exceptions to copyright,” the document states.

The Productivity Commission expects to issue its draft report in March or April this year.

The Department of Communications is seeking submissions on the exposure draft bill until 12 February.

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