Bills Digest No. 101, 2017
PDF version [562KB]
Jonathan Mills
Law and Bills Digest Section
3 May 2018
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Date introduced: 6
December 2017
House: Senate
Portfolio: Communications
and the Arts
Commencement: Six
months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
May 2018.
Purpose of
the Bill
The purpose of the Copyright Amendment (Service Providers)
Bill 2017 (the Bill) is to amend the Copyright Act 1968
(the Act) to extend the scope of the safe harbour provisions and limit the
remedies available against service providers in the disability, education and
cultural sectors.
Structure
of the Bill
The Bill consists of a single Schedule amending Division
2AA of Part V of the Act to extend the existing limits on the remedies
available against carriage service providers to also apply to certain other
service providers.
Background
Safe Harbour Protections
Certain ‘safe harbour’ protections for ‘carriage service
providers’ are currently built into the Act in sections 116AA
– 116AJ, so that only limited remedies are available against those
providers for the copyright infringing conduct of their subscribers where the
carriage service provider does not control, initiate or direct the primary
infringement. The conditions that must be satisfied in order to reap the
benefit of these ‘safe harbour’ protections vary depending on the particular
activities that a carriage service provider engages in. The conditions include
that the carriage service provider must implement reasonable policies that
provide for terminating the accounts of repeat infringers, they must comply
with any relevant industry codes, they must restrict access to permitted users,
must expeditiously remove infringing material and must not receive a financial
benefit that is directly attributable to the infringing activity.[1]
The limited remedies that are available for relevant infringements
of copyright by carriage service providers are set out in section 116AG of the
Act and include orders disabling access to overseas online locations and
terminating a specified account, as well as orders to remove or disable access
to infringing copyright material.[2]
Remedies are not to include damages or an account of profits, additional
damages or other monetary relief.[3]
History of reform proposals
The Government and stakeholders have been reviewing the scope
of the safe harbour protections for many years, with various options for
expanding the scheme being discussed and debated.
The December 2015 Exposure Draft of what became the Copyright
Amendment (Disability Access and Other Measures) Bill 2017 (the Disability
Access Bill) contained amendments to the safe harbour provisions intended to
‘ensure that search engines, universities and libraries have ‘safe harbour’
protection if they comply with conditions aimed at reducing online copyright
infringement.’[4]
However, the final version of that Bill omitted those safe harbour reforms. The
Bills
Digest for the Disability Access Bill explains:
The Bill currently before the Parliament is similar to the
exposure draft in most respects, with the major difference being the omission
of amendments to the safe harbour provisions. These provisions were the more
significant and controversial of the proposed amendments in the exposure draft.
Safe harbour amendments have been the subject of debate and review for over ten
years with groups representing rights owners raising some objections to them.
While the Explanatory Memorandum and second reading speech to the Bill make no
mention of this omission, the Government has subsequently announced that it
will undertake further consultation with stakeholders on the extension of the
safe harbour provisions of the Copyright Act prior to introducing
legislation:
‘An expanded safe harbour regime
would provide a useful mechanism for rights holders to have material that
infringes their copyright removed from online service providers. An expanded
regime would also ensure that service providers are not held responsible for
the infringing actions of their users, provided they take reasonable steps to
take down material that infringes copyright. The extension of safe harbour to
cover online service providers, not just internet service providers, has been
the subject of inquiry and public debate for over a decade.’ [5]
The stakeholder submissions in relation to the Disability
Access Bill highlighted some of the objections to expanded safe harbour
protections:
The exposure draft of the Bill released for public comment
was generally received well by libraries and universities... Submissions from
groups representing rights owners were more cautious in their reaction and in
particular were generally opposed to the amendments to the safe harbour
provisions. For example the Australian Copyright Council was generally
supportive of the preservation provisions for cultural institutions but
expressed reservations about the provisions relating to disability access to
copyright materials. The Council did not support the safe harbour provisions in
the exposure draft.[6]
Last year the Minister for Communications, Senator Mitch
Fifield, announced that ‘Dr Heather Smith PSM, Secretary of the Department of
Communications and the Arts, would oversee a series of meetings and roundtable
discussions with stakeholders on the proposed changes. The Department has been
asked to provide advice to Government by early June 2017 to enable the
Government to continue to progress the copyright reform process.’[7]
The Attorney-General’s Department produced a consultation
paper in 2011, Revising
the scope of the copyright ‘Safe Harbour Scheme’, which proposed
replacing the term ‘carriage service provider’ with the broader term ‘service
provider’. This paper noted that Australia’s safe harbour provisions were
implemented in response to requirements in the Australia-United States Free
Trade Agreement and proposed an expansion of the scheme for stakeholder
consideration, as outlined in the extract below:
Expanding the scope of the safe harbour scheme
It is apparent that the current definition of ‘carriage
service provider’ gives the Australian scheme a more restricted scope than
equivalent safe harbour schemes in the US, Singapore and Korea. The approach
these countries have taken in implementing the safe harbour scheme has been
taken into consideration in developing the proposal to amend the Australian
scheme.
Following the consideration of similar international schemes,
and the representations made by interested parties during targeted consultation
conducted by the Attorney-General’s Department in 2005, and again in response
to the Government’s Digital Economy Future Directions Consultation Paper 2009,
it is now proposed that the scope of safe harbour scheme in the Copyright Act
be amended to cover a broader range of service providers.
To achieve this, an alternative term (‘service provider’)
would replace ‘carriage service provider’ for the purposes of the safe harbour
scheme. The new term would be defined to cover internet service providers and
operators of online services, irrespective of whether they provide a carriage
service to the public. The new term would be consistent with the Australia-United
States Free Trade Agreement and comparable international approaches. Careful
consideration will be given to developing a definition that it is simple and
effective, technologically neutral, and consistent with Australia’s
international obligations.[8]
The
Attorney-General’s Department also published the Online
Copyright Infringement discussion paper (July 2014) containing a suggestion
for a broader expansion of the safe harbour protections ‘to entities engaged in
the activities set out in sections 116AC to 116AF. This would be achieved by
removing the reference to carriage service provider and replacing it with a
definition of ‘service provider’, being any person who engages in activities
defined in sections 116AC to 116AF.’ [9]
More recently, the Productivity Commission produced the Intellectual
Property Arrangements inquiry report 2016. This report contained substantial
discussions of the safe harbour scheme, and recommended that ‘(t)he Australian
Government should expand the safe harbour scheme to cover not just carriage
service providers, but all providers of online services.’[10]
In the Second Reading Speech for the Bill, the Government explained
that it chose to implement a more limited expansion of the safe harbour scheme
in this Bill, compared to the various recommendations, in what is a relatively
undisputed segment of copyright use. The Government acknowledged ‘that a
blanket extension of safe harbour remains a highly contested reform’[11]
but noted that ‘(t)he education, cultural and disability sector generally take
a very risk averse approach to protecting and managing the copyright of others...
Yet they still remain potentially liable for the infringement of their users
which is beyond their active control.’[12]
The Second Reading Speech then went on to explain:
On the one hand we have heard that extending safe harbour
would encourage piracy, contribute to the gap in revenue between subscription
and ad based content services, and remove the ability for rights holders to
seek licence revenue from online services. Of particular concern have been
scenarios in which service providers derive profit from the infringing
activities of their users.
...
On the other hand we hear that Australia has legal
uncertainty about the extent to which service providers can be liable for the
actions of their users, which has a chilling effect on innovation. Service
providers, who in many cases perform the same role as a carriage service
provider, have pointed out that they are the ones that have no protection and
that this makes Australia uncompetitive compared with other countries who have
a safe harbour scheme.
...
So far, opposing parties have been unable to meet in the
middle of this protracted debate. So this Bill starts the process of safe
harbour reform by responding to where there is broad consensus and extending
the scheme to a group of institutions and organisations that all agree are
responsible players in the copyright space.[13]
Committee
consideration
Senate Environment and
Communications Legislation Committee
The Bill was referred to the Senate Environment and
Communications Legislation Committee for inquiry and report by 19 March 2018.
Details of the inquiry are at the inquiry
homepage.
The stakeholder submissions to this inquiry are discussed
under ‘Position of major interest groups’.
In its report, the Committee recommended that the Senate
pass the Bill, while also noting that the department should consider the
drafting issue raised by some submitters regarding the use of ‘by’ rather than
‘by and on behalf of’ service providers.[14]
This issue is discussed at the end of this digest.
The Australian Greens issued a dissenting report in which
the party expressed support for ‘the incremental progress that this Bill makes
in bringing Australian copyright laws up to date and in line with other
countries’ but stated more broadly that they did not support the ‘piecemeal’
reform of copyright laws or the limited definition of 'service providers' in
the Bill.[15]
The dissenting report went on to recommend that the language relating to use
‘on behalf of’ service providers be clarified, that further reforms of
copyright law be considered, and that a broader definition of service providers
should be used.[16]
Senate Standing Committee for the
Scrutiny of Bills
The Committee made no comment on the Bill.[17]
Policy
position of non-government parties/independents
The Australian Greens' dissenting report to the Senate
Environment and Communications Legislation Committee inquiry is discussed above
in the section dealing with that Committee. At the time of writing no other
comments in relation to the Bill had been made by non-government parties or independents.
Position of
major interest groups
A range of stakeholder opinions were expressed in
submissions to the Senate Environment and Communications Legislation Committee
inquiry into the Bill.[18]
While many stakeholders took the opportunity to further express their positions
that safe harbour reforms should either go no further than the present Bill or
should be expanded further to include, for example, all online services, most were
otherwise supportive of the reforms contained in the present Bill.[19]
The Arts Law Centre of Australia noted concerns ‘at the
burden placed on rights holders to monitor and issue take down notices relating
to the reposting of infringing content once a take down notice has been issued’
and urged ‘Government to consider mechanisms to better balance this burden with
a positive requirement on the service providers’.[20]
Financial
implications
The Government has stated that the Bill will not have any
significant financial implications.[21]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[22]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill did not raise any human rights concerns.[23]
Key issues
and provisions
Item 6 introduces proposed section 116ABA
which provides a definition of service provider. This term is
then proposed to be used throughout Division 2AA of Part V of the Act
in place of the existing term carriage service provider to limit
the remedies that are available against said providers for infringements of
copyright that relate to the carrying out of certain online activities by them.
A service provider is defined by proposed
subsection 116ABA(1) to be:
- a
carriage service provider
- an
organisation assisting persons with a disability or
- a
body administering a public library or parliamentary library, an archives, a
key cultural institution or an educational institution.[24]
Proposed subsection 116ABA(2) provides that for
bodies administering a library, archives, key cultural institution or non-incorporated
educational institution the safe harbour provisions only apply to activities
that the service provider carries out because of its relationship to the
relevant library, archives, key cultural institution or educational institution.
Note that the proposed definition retains the sub group of
carriage service providers that are covered under the existing
provisions of Division 2AA.
Items 1, 2, 4 and 7 consequently
omit the word ‘carriage’ from any occurrence of the term ‘carriage service
provider’ in Division 2AA. Specifically, the term is removed from the heading
to Division 2AA, subsection 116AA(1), section 116AB and sections 116AC to
116AJ. This reflects the expansion of the scope of the provisions from carriage
service providers to the proposed group of service providers,
as defined in proposed section 116ABA.
Possible drafting issues
The Intellectual Property Committee of the Business Law
Section of the Law Council of Australia (IPC) raised several potential drafting
issues with the Bill in its submission to the Senate Environment and
Communications Legislation Committee.[25]
In particular, the IPC noted that the wording of proposed section 116ABA
may be ambiguous as regards which ‘entities it intends to include within the
definition of "service providers”, and which activities’.[26]
The IPC also raised concerns over whether the Bill would
achieve its purpose as many of the activities conducted by the institutions it
seeks to protect may be carried out by external providers. The IPC suggested:
(a)n alternative would be to include in the safe harbour
activities done “by or on behalf of” the institutions intended to be covered by
the safe harbour. Such drafting would allow public interest organisations to
innovate entirely in-house, but also then use services and products developed
in the private sector.[27]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Copyright Act 1968,
subsection 116AH(1).
[2]. Ibid.,
subsections 116AG(3) and (4).
[3]. Ibid.,
subsection 116AG(2).
[4]. Department
of Communications and the Arts (DCA), ‘Updating
Australia’s copyright laws’,
DCA website.
[5]. MA Neilsen, Copyright
Amendment (Disability Access and Other Measures) Bill 2017, Bills
digest, 96, 2016–17, Parliamentary Library, Canberra, 2017, pp. 3–4, quoting M
Fifield (Minister for Communications), Further
consultation on copyright safe harbour legislation, media release, 21 April
2017.
[6]. MA Neilsen, op. cit., pp. 4, 5.
[7]. M Fifield, Further
consultation on copyright safe harbour legislation, op. cit; the
Department of Communications and the Arts (DCA) also maintains a webpage on the
topic, ‘Further
consultation on safe harbour legislation’, DCA website.
[8]. Attorney-General’s Department, Revising
the scope of the copyright ‘Safe Harbour Scheme’, Consultation paper, 2011,
pp. 4, 5.
[9]. Australian Government, Online
copyright infringement, Discussion paper, July 2014, p. 7.
[10]. Productivity
Commission, Intellectual
property arrangements, Inquiry report, 78, 2016, pp. 563–7.
[11]. J
McGrath, ‘Second
reading speech: Copyright Amendment (Service Providers) Bill 2017’, Senate, Debates,
6 December 2017, p. 9904.
[12]. Ibid.,
p. 9903.
[13]. Ibid.,
p. 9904.
[14]. Senate Environment and
Communications Legislation Committee, Copyright
Amendment (Service Providers) Bill 2017, The Senate, Canberra, March
2018, pp. 21, 22.
[15]. Australian
Greens, Dissenting report, Senate Environment and Communications Legislation
Committee, Copyright
Amendment (Service Providers) Bill 2017, The Senate, Canberra, March
2018, p. 23.
[16]. Ibid.,
pp. 32, 33.
[17]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, The Senate, 7 February 2018, p. 16.
[18]. Senate
Environment and Communications Legislation Committee, Copyright Amendment
(Service Providers) Bill 2017, The Senate, Canberra, submissions.
[19]. For
example see Australian Publishers Association, Submission
to the Senate Standing Committee on Environment and Communications, Inquiry
into the Copyright Amendment (Service Providers) Bill 2017, [submission no.
17], 30 January 2018; Optus, Submission
to the Senate Environment and Communications Legislation Committee, Inquiry
into the Copyright Amendment (Service Providers) Bill 2017, [submission no. 13],
30 January 2018; Google Australia, Submission
to the Senate Environment and Communications Legislation Committee, Inquiry
into the Copyright Amendment (Service Providers) Bill 2017, [submission no.
24], 30 January 2018.
[20]. Arts
Law Centre of Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Copyright Amendment (Service Providers) Bill 2017, [submission no. 3], January
2018.
[21]. Explanatory
Memorandum, Copyright Amendment (Service Providers) Bill 2017, p. 2.
[22]. The
Statement of Compatibility with Human Rights can be found at pages 3–4 of the Explanatory
Memorandum to the Bill.
[23]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 1, 16 February 2018, p. 78.
[24]. As
set out in proposed subparagraph 116ABA(1)(c)(i) a public library is a
library accessible to members of the public directly or through interlibrary
loans.
[25]. Business
Law Section of the Law Council of Australia, Submission
to the Senate Environment and Communications Legislation Committee, Inquiry into
the Copyright Amendment (Service Providers) Bill 2017, [submission no. 35],
31 January 2018.
[26]. Ibid.,
p. 2.
[27]. Ibid.,
p. 3.
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