Attorney-General signals shift in safe harbour provisions

Google, Yahoo! and online content providers to be protected under potential changes to legislation

The Federal Attorney-General, Robert McClelland, has signalled moves to expand provisions harbouring internet service and online content providers from litigation by copyright holders.

Under the plan outlined in a speech addressing a copyright law conference in Sydney today, McClelland said legislation regarding the definition of carriage service providers could potentially be expanded to include the likes of Google, Yahoo! and other content magnates, as well ISPs currently included. In doing so, he said, the companies would be incentivised to work with rights holders to prevent copyright infringement, and would not be seen as authorising infringement.

The Attorney-General’s Department is expected to release a consultation paper on the issue soon, allowing for industry comment.

The safe harbours provision was relied upon heavily by legal counsel for Perth-based service provider iiNet during litigation with the Australian Federation Against Copyright Theft (AFACT) as a means of proving they had complied with infringement notices and had not authorised infringement of copyright by its users.

A full bench of Federal Court judges this week dismissed AFACT’s appeal against the initial decision in favour of iiNet, with two of three judges finding the ISP had not authorised infringement.

However, in doorstop interviews immediately following the judgement, both AFACT and iiNet called upon the Federal Government to intervene and clarify copyright legislation.

In his speech, McClelland acknowledged the appeal dismissal, but said further analysis would be required before the government made a final decision on the judgement’s implications.

“I have an open mind whether the Government should participate in due course, through a suitably qualified person to mediate,” he said.

He did, however, concede that the judgement would be unlikely to solve the issue of industry response to unauthorised file sharing.

It is widely expected AFACT will appeal the decision within the next 28 days, pushing proceedings to the High Court and potentially delaying further intervention by government until a decision is made at that level.

Continued discussions with ISPs and rights holders, as well as internal industry dialogue, McClelland said were ultimately the “most productive” methods of progressing the issue, a prospect he commended for already happening and one he said the government would continue to monitor closely.

In addition, McClelland said he would look to provide terms of reference on copyright to the Australian Law Reform Commission, in an attempt to better define issues involved and technology’s implications on law.

“I believe there would be merit in examining some exceptions under our law in the context of the online environment and whether the correct balance exists,” he said.

McClelland has also called for a review of expanding the number of exceptions allowing circumvention of digital rights management measures, such as for backups of DVDs in educational uses.

“My Department will invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues,” he said.

“Legislative reform in this area is challenging because of the speed of technological developments - there is a risk that legislative solutions can lag behind reality and the market place. But while it is difficult task, and quite impossible to achieve a perfect balance between competing interests, it is nonetheless important that as a Government we continually examine the areas of copyright that are ripe for reform.”

Follow James Hutchinson on Twitter: @j_hutch

Follow Computerworld Australia on Twitter: @ComputerworldAU

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