Greens push for broader copyright ‘safe harbour’ provisions

Senate committee backs government’s piecemeal approach

A Senate committee has backed the government’s incremental approach to expanding Australia’s safe harbour regime, but a dissenting report supported by the Greens calls for much broader copyright reform.

The current safe harbour provisions were introduced the US Free Trade Agreement Implementation Act 2004. Providing certain conditions are met, they protect telecommunications providers from being liable when customers use their services to infringe copyright (e.g. using a broadband service to pirate a movie).

A government bill would expand the safe harbour protections to cover public libraries, archives, educational institutions and key cultural institutions. The limited expansion of the safe harbour provisions has been supported by organisations representing the book publishing and music industries.

However, the tech sector including Digital Industry Group Incorporated (DIGI) — whose members include Facebook, Google, Microsoft, Oath and Twitter — has tended to back a broader expansion of the regime to cover all online service providers.

The report of the Environment and Communications Legislation Committee inquiry into the Copyright Amendment (Service Providers) Bill 2017 noted there are “highly polarised views and lack of consensus on further safe harbour reform” and said it had “received conflicting evidence” on expanding the safe harbour provisions beyond what the bill contemplates.

“Given the divergence of stakeholder views and the complexity of the issues being considered, the committee supports the Government's incremental approach to safe harbour reform,” the report backed by the committee’s majority said.

“The proposed amendments will ensure that educational and cultural institutions and organisations assisting people with a disability will be afforded protection immediately. The committee considers this to be a balanced and reasonable approach. The committee also notes and appreciates the reassurance that the department will continue its consultation with stakeholders.”

“The amendments in the bill provide an immediate fix for one of the big problems with Australia’s safe harbour regime — ensuring Australia’s schools, universities, libraries, archives, museums and disability groups have the same legal protections as commercial ISPs,” said Australian Digital Alliance executive officer Jessica Coates. However, the bill “does nothing for the other big problem — ensuring our technology companies are able to compete in the global market.”

“We therefore strongly support the committee’s statement that this should just be the first step in the reform process, and that the government must continue to consult on solutions for Australia’s commercial online service providers,”  Coates said.

“Australian companies are being sued right now just for providing the same services consumers can already get from overseas,” Coates said.

A dissenting report back by the Greens welcomed the “incremental progress” that the bill makes “in bringing Australian copyright laws up to date and in line with other countries”.

However, it said that the Greens object to the “piecemeal manner” in which the government is updating Australia’s copyright law.

“We do not believe that this bill achieves the necessary balance between the rights and protections of content providers and content creators,” it added.

“We do not support the limited definition of 'service providers' used in this bill, which excludes Australian tech companies and online content providers, stifling innovation and the ability of Australian tech companies to compete internationally,” the dissenting report said.

Copyright consultation

The Department of Communications and the Arts earlier this week launched a new consultation on copyright reform.

The government is seeking input on a number of copyright reforms backed by the Productivity Commission’s report on Australia’s intellectual property rules.

A consultation paper has been released and is available from the department’s website.

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