Canberra mulls a wider safe harbour

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Canberra mulls a wider safe harbour
Attorney-General Robert McClelland

Attorney-General announces three copyright reviews.

The Australian Government has announced three inquiries into copyright law, one of which is likely to result in search engines, universities and other content providers being granted the same 'safe harbour' protections as telcos and ISPs.

Attorney-General Robert McClelland announced the three inquiries into copyright law late Friday  in response to digital technology trends.

Speaking at the Blue Sky Conference on future directions in Copyright law, McClelland said the Government was seeking "a more flexible approach to enforcement" - specifically:

  • broadening the “Safe Harbour” schemes - which only apply to ISPs and telecommunications providers
  • adding new exceptions to the anti-circumvention provisions of the Copyright Act;
  • commissioning an Australian Law Reform Commission report on Copyright.

Safe Harbours

Under existing copyright laws, the Safe Harbours scheme offers legal incentives for ISPs and “carriage service providers” as defined by the Telecommunications Act 1997 to cooperate with copyright owners in deterring infringement of copyright.

It is a form of legal protection offered to these providers from being sued, provided that they act in good faith towards content providers.

In contrast to the United States, protection under Australian laws does not extend to content providers such as Google, Yahoo, Facebook, eBay as well as many specialised public content providers such as universities, libraries and museums online.

Australia's Internet Industry Association (IIA) has lobbied to have such institutions protected by safe harbour, especially in the wake of the case the film industry has taken against ISP iiNet.

In 2009, the Australian Federation Against Copyright Theft (AFACT) opposed any broadening of the protection In its submission to the Government on the Digital Economy.

Non-ISPs would “secure a windfall benefit without becoming subject to conditions which apply under the US system,” the rights holder group argued.

Under the US system known as Digital Millennium Copyright Act (DMCA), beneficiaries of safe harbours must disclose details of infringing users to copyright users. This is not required under Australian laws, AFACT said in its submissions.

Exceptions to Anti-Circumvention provisions

A second review looking to extend exceptions to anti-circumvention provisions in copyright law are also likely to be opposed by rights holders.

Under Australia's current copyright laws, Australians can only use digital tools to unlock copy-protected discs, for example, for reasons of law enforcement and national security, interoperability of computer software and research into encryption.

McClelland said the Government's Copyright Advisory Group had suggested a new exception for certain education purposes - allowing schools to change the format of films from DVD to MP4 for teaching purposes.

His also said the department was open to views on whether any other new exceptions should be included.

ALRC review of copyright “later this year”

McClelland also announced that the Australian Law Reform Commission would conduct a review of current copyright law.

The terms of reference of the ALRC review into copyright would be “clearly defined”, McClelland said.

It should not duplicate work undertaken by the Government’s Convergence Review, in particular.

As the Australian Law Reform Commission has several other projects outstanding (including censorship and classification), the terms of reference would be provided “later this year”, he said

“I believe there would be merit in [ALRC’s] examining some exceptions under our law in the context of the online environment and whether the correct balance exists. “

Calls for better business models

Francis Gurry, director general of the World Intellectual Property Organisation (WIPO) gave an international flavour to the need for the announcements in a speech made tothe conference.

“Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests, he said.

 Gurry also backed a call for “better business models” from rights holders.

“We should constantly remind ourselves that the history of the confrontation of our classical copyright world with the digital environment has been more a sorry tale of Luddite resistance than an example of intelligent engagement.”

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