Service providers and safe harbours

According to Parliament’s website, the Copyright Amendment (Service Providers) Bill 2017 passed its third reading in the Senate and has now had its first reading in the House of Representatives.[1]

Instead of amending the definition of persons who can (potentially) claim the benefit of the online safe harbours to accord with the definition of service provider required under the Australia – United States Free Trade Agreement,[2] it will extend the class of potential beneficiaries from carriage service providers to what may broadly be described as “the education, cultural and disability sectors”.

To implement this impending development, the Department of Communications and the Arts has released a consultation paper on on draft Copyright Amendment (Service Providers) Regulations 2018 (you have to scroll down to get to the links for (a) the consultation paper itself and (b) the draft regulations).

If you are in one of those sectors or a rights holder with concerns, you need to get your submissions in by 29 June 2018.


  1. Both these events occurred on 10 May 2018.  ?
  2. See art. 17.11.29(xii): “For the purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing, and for the purposes of the functions referred to in clause (i)(B) through (D), service provider means a provider or operator of facilities for online services or network access.”  ?

Productivity Commission intellectual property arrangements

Part 1 of my article on the Productivity Commission’s Final Report on Intellectual Property Arrangements has been belatedly published in the Australian Intellectual Property Law Bulletin: (2018) Vol. 30 No. 10 p. 210.

Subscription only, I’m afraid.

This part looks at the Productivity Commission’s approach and treatment of patents. Part 2 will deal with copyright, designs and other issues.

This issue of AIPLB also includes a paper by Richard Hamer and Lev Gutkin on patents law in 2016 and Marina Olsen’s review of the Productivity Commission’s recommendations on designs.

Between writing the paper and its publication, the Government has published its response to the Productivity Commission’s report. Despite the Raising the Bar reforms to inventive step, that response included acceptance of the recommendation to change the inventive step requirement yet again. The Government has since published several discussion papers on ways to “reform” inventive step and the requirement for disclosure of the technical advance, a statement of objects and Crown use.

Copyright safe harbour scheme review Mk 2

Last Friday, the Commonwealth Attorney-General released a Consultation Paper on ‘Revising the Scope of the Copyright Safe Harbour Scheme’.

As reported then, there were two components to that review.

Over the weekend, the second component – streamlining the notice and take down procedures – has been edited out of the revised version (pdf) (doc version via here).

So now, the consultation paper just relates to re-defining “carriage service provider“.

There’s a fact sheet on how the scheme currently works. Unfortunately, the links to the previous review and submissions seem to have been taken down.

Last Friday’s post referred to the US-Australia Free Trade Agreement. The relevant provision is in chapter 17. So far as the protections apply to service providers, Art. 17.11 paragraph 29 provides:

(xii) For the purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing, and for the purposes of the functions referred to in clause (i)(B) through (D), service provider means a provider or operator of facilities for online services or network access.

This may be contrasted with the corresponding provision in the “parent” of article 17.11, §512(k) (pdf) of the US Copyright Act which defines service provider for the purposes of the DMCA safe harbours as follows:

(1) Service provider.—(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received. (B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in sub- paragraph (A).

At least, the US definition appears to make it clear that a service provider may be one who provides services not just, as the Australian legislation seems to have been drafted to reflect, only providers, or operators, of facilities for such services. Given the nebulous nature of the term ‘facilities’, however, that may be a difference more imagined than real.

Although it doesn’t provide any “binding” authority like the Free Trade Agreement, the EU directives proceed on the basis of persons providing “information society services”. See e.g. art.s 12 -15 of the E-Commerce Directive, DIRECTIVE 2000/31/EC (pdf).

Lid dip: Leanne O’Donnell.

Copyright safe harbour scheme

Links to the Consulatation Paper on the Copyright safe harbour scheme for carriage service providers.

Broadly, the safe harbour schemes provide some protection from some remedies for carriage service providers:

Category A – acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material
Category B – caching through an automatic process
Category C – storing copyright material on their systems or networks, and
Category D – referring users to an online location (for example, linking).

The first problem is that the definition of csp isFrom

    in

the Telco Act (i.e.) those providing the, er, telephone service. Didn’t cover Google or Yahoo or a whole host of other Internet service providers. The Australian definition is much narrower than the US definition. So, the Government is exploring broadening this.

There may be a question of what the US Free Trade Agreement permits.

The second question is looking at ways to streamline the notice system.

Lid dip Libby Baulch

Submissions must be in by 22 November 2011.