Recent developments in online copyright infringement laws

By Miriam Stiel
Industrials Intellectual Property Patents & Trade Marks

In brief

A Senate Committee has approved a Bill to expand the safe harbour regime under the Copyright Act and the Federal Government has closed consultation on the effectiveness of site blocking legislation. Senior Associate Kaelah Ford and Law Graduate Ammy Singh report.

Senate Committee recommends limited safe harbour expansion

In late March, the Senate Environment and Communications Legislation Committee released its report on the Copyright Amendment (Service Providers) Bill 2017. The Bill provides for the expansion of the 'safe harbour regime' under the Copyright Act, which currently enables carriage service providers (CSPs) to avoid liability for acts of copyright infringement by users of their networks, by complying with certain conditions, including taking down infringing material when they have been notified of a suspected infringement by a copyright owner.

If passed, the Bill will extend safe harbour protection to the following online service providers:

  • educational institutions;
  • public or Parliamentary libraries;
  • archives and specified galleries and museums;
  • key cultural institutions; and
  • organisations assisting persons with a disability.

The Senate Committee did not accept the Productivity Commission's 2016 recommendation that the regime be extended to cover all online service providers. Advocates for this approach say that it would allow Australian technology companies to compete in the global market, given that the US, the UK and the EU all have more expansive safe harbour regimes. These views were echoed in the Greens' dissenting report.

Others have opposed an expansive safe harbour regime, drawing a distinction between service providers that are mere conduits of online content, and those that have the ability to exercise control over the content on their platforms. For example, the Australian Copyright Council submitted that a US-style regime encourages wilful blindness on the part of the platform, shifting all risk to the copyright owner who must monitor and issue takedown notices.

While the Bill is likely to pass in its current form, this may not be the end of the story, as online service providers are likely to continue to seek broader protection.

Site blocking legislation – three years on

On 13 February 2018, the Federal Government sought submissions on the Copyright Amendment (Online Infringement) Act 2015, which has been in operation since June 2015. Under the Act, copyright owners can apply to the Federal Court to block access to an online location operated outside Australia that has the primary purpose of infringing, or facilitating the infringement of, copyright (think torrent sites like Pirate Bay).

Stakeholders were asked to comment on the efficiency of the site blocking mechanism, the application process, and whether or not any amendments are required to improve the Act.

Overall it appears that both rights holders and CSPs are content with the Act's operation, though concerns have been raised about the protracted nature of the application process. Some stakeholders have also suggested that the 'primary purpose' threshold be amended to a 'substantial purpose or effect' test and that the requirement for a website to be located outside of Australia be removed, which is likely to be the subject of further debate.

The Federal Government has not indicated when it expects to release the findings of its review. Watch this space.