Search engines seek Aussie safe harbour

The Australian Digital Alliance (ADA) has commissioned a paper by copyright academic Kimberlee Weatherall which calls for search engines and other web properties to be given the same 'safe harbour' protections under Australian law as telecommunications carriers and ISPs.

Australia's safe harbour laws offer legal protection to service providers from being sued over copyright infringements, provided that they act in good faith towards content providers.

But some ADA members - such as search engines Google and Yahoo!, do not enjoy this protection in Australia as a telco would.

Academic and director of the Australian Digital Alliance, Kimberlee Weatherall, has argued that Australia's copyright laws are less coherent and less amenable to innovation in the Digital Economy than those in other Western jurisdictions.

“If Australia wants to achieve the goal of creating a successful Digital Economy, of supporting innovation in Internet infrastructure and services, and becoming “enterprising and venturous‟ in the online environment created by the NBN, it needs to start by ensuring that Internet Intermediaries providing the basic Internet infrastructure and common online services have some legal security,” Weatherall wrote in paper, Internet Intermediaries and Copyright: an Australian Agenda for Reform

Australia needs to create "room to move‟ and to experiment in its copyright law, even as it continues to protect copyright owners‟ legitimate interests," Weatherall said.

Her legal assessment is that 15 years after the Altavista search engine was launched, a search engine could still not operate fully from Australia without facing a risk of copyright  infringement. 

Likewise setting up a locally hosted Facebook, YouTube or Wordpress blogging site can also be open to liabilities that are unique to Australia.

Because of its narrow implementation, Australian law creates an “uneven playing field”, her paper said.

As a result, carriage service providers such as iiNet or Telstra face less overall legal risk than other Internet Intermediaries such as Google and Facebook, even where they perform the same practical function.

She calls for two major changes "to enable greater innovation in the Australian Digital Economy” – extending safe harbours protections to all online service providers and a more flexible approach to exceptions under the Copyright Act.

“Australia has Safe Harbours removing the threat of copyright damages from companies undertaking certain Internet activities  – providing online access, caching, web hosting, and providing „information location tools‟ such as search engines,” the report said.

While Telstra and Optus have the benefit of the Safe Harbours, Google and Yahoo!, WordPress and Facebook do not.

“This makes no sense. Extending the Safe Harbours would bring Australian exceptions into line with law in the US and elsewhere,” she said in her paper.

But extending the Safe Harbours is only part of the solution.

Australia should also introduce a more flexible exception into copyright, in order to move from a "permission to innovate‟ culture to one conducive to taking risks and trying new things, at least where the impact on copyright owners' economic interests is small.

“Australian copyright law provides no such room [to experiment]. By contrast, US law provides two important  flexibilities for Internet Intermediaries: the fair use exception, which allows for non-infringement based on a balancing of factors (like the impact of an activity on the market), and the 'Sony doctrine' – the rule that a person who provides services or technology that has substantial  non-infringing uses will generally not be held liable for its customers' infringements," the paper said.

In late February, the Federal Attorney-General announced the Australian Law Review Commission would be investigating copyright later this year to investigate case for more exceptions for the online environment and whether the correct balance exists. 

Internet Industry Association chief executive Peter Coroneos said the organisation remained "concerned about the intermediary liability situation in Australia".

"This paper makes strong and cogent arguments as to why it is a problem," he told iTnews.