Copyright: An Internet Safe Harbour Expansion Unnecessary
Wednesday 19 March 2014 @ 11.09 a.m. | IP & Media
A senior law lecturer from the University of Technology, Sydney, has described the expansion of Australia’s current copyright "safe harbour" provisions as unnecessary. In a recent opinion piece from online discussion website, The Conversation, Dr George Tian critiqued Google’s proposal for an extension of the current provisions and argued instead for the adoption of US-style "fair use" exemptions in Australian legislation.
Malcolm Turnbull's Public Consultation on Deregulation Initiatives in the Communications Sector has attracted responses from many major stakeholders of the technology landscape – eBay, Microsoft and iiNet have all made public submissions. Google's letter has an additional element that they acknowledge is outside the Government’s stated deregulation agenda – the introduction of 'safe harbour' legislation for what it calls "online intermediaries". Google’s argument is that:
"the current state of uncertainty with respect to the liability of platforms and other online intermediaries for unlawful conduct by users is a major disincentive for internet industries to operate from Australia."
Safe Harbour in Australia
The 2004 free trade agreement between Australia and the USA meant that Australia was required to introduce:
"rules for the liability of ISPs for copyright infringement, reflecting the balance struck in the U.S. Millennium Copyright Act (DMCA) between legitimate ISP activity and the infringement of copyrights."
In 2006, these were introduced through amendments to the Copyright Act 1968 (Cth). Google would like a much wider regime that applies to what it calls "online intermediaries" and extends beyond just copyright violations. Google believes it is unfair that "online intermediaries" could be liable for the criminal activities of their users (uploading child pornography, for example), given that they have "no practical means of preventing the content from being published".
But George Tian argues that the expansion of these rules should not be necessary, as case law in the United States suggests that the exemptions are broad enough already, and should cover in fact cover "online intermediaries" as well as new technological developments, such as cloud computing.
Fair Use Changes
George Tian agrees with Google that there is significant scope for review within Australia’s current regulatory system. In particular, he shares and emphasises Google’s concerns that the current Copyright Act doesn’t cover "basic internet functions like searches" and is structured so that "functions like caching are dealt with in three separate places with three different legal treatments".
However, he believes that the "fair use" changes recommended by the Law Reform Commission in their June 2013 report, Copyright and the Digital Economy, are the key to ensuring that Australia’s system is flexible enough to deal with ongoing technological change. He concludes that:
“Repealing existing technology-specific exceptions and replacing them with broader rules, not extending patchy safe harbour rules, would serve as the best resolution in the long run.”
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