safe harbours

It must be Christmas – there’s a copyright issues paper

The Attorney-General has released a Copyright Enforcement Review: Issues Paper.

The Issues Paper begins with a welcome recognition that copyright plays an important role in “Australia’s creative ecosystem and broader economy”:

Copyright infringement may harm Australia’s creative ecosystem and broader economy by reducing or diverting income that creators of, and investors in, original material rely on for their financial sustainability. Copyright owners need to be able to take reasonable steps to protect and enforce their rights as part of a well-functioning copyright system. To this end, the current system includes a range of enforcement mechanisms (including industry-driven and statute-based mechanisms) to address unauthorised uses of copyright material. At the same time, it is important that consumers, service providers and other businesses are clear about when they can use copyright materials and in what circumstances.

Having noted the interests of both the creators and investors and consumers and others, the Issues Paper then declares the Government’s commitment to ensuring that copyright protects Australian artists through a fit-for-purpose enforcement regime:

The Government is committed to copyright laws that protect Australian artists and enable them to earn a living from their creative works. The Australian copyright enforcement regime must remain fit-for-purpose.

Accordingly, the Issues Paper states that the purpose of the review is to investigate whether the enforcement regime is working effectively or there are matters requiring attention:

The Australian Government is undertaking this review to:

• understand current and emerging enforcement priorities and challenges

• gather views from all parts of the copyright system – including owners, users, institutions and service providers – on whether Australia’s copyright enforcement regime remains relevant, effective and proportionate, and

• seek feedback on whether there is any need to supplement or strengthen existing enforcement mechanisms, and if so, how this could be done without imposing unreasonable administrative or economic burdens.

It appears that the background to the review is the increasing prevalence of online copyright distribution and consumption. Thus, the Issue Paper refers to the findings of a 2021 Consumer Survey on Online Copyright Infringement which revealed that 71% of survey respondents had “consumed” copyright material online in the 3 months to April 2021.

Further, the Issues Paper refers to industry data company, MUSO’s statistics for access to online piracy sites from 2017 to 2021 which appear to disclose “no strong upward or downward trend in copyright infringement overall” but, while declines in piracy of TV, films and music since 2017 have been observed, there have been increases in pirating of publishing materials.

The Issues Paper also reports that there is still a significant amount of IP-infringing material in the form of counterfeit goods – defined as goods infringing trade marks or copyright – citing the seizure by Customs of 145,000 counterfeit goods worth more than AUD 66 million in the last 12 months.

Against this background, the Issues Paper asks 3 questions directed to identifying the nature and scale of copyright infringement challenges in Australia:

  1. What challenges have you been facing in relation to copyright infringement in recent years? Are you seeing any changes or trends (including any forms or methods of infringement that are emerging or particularly concerning, or conversely, are becoming less prevalent or concerning)?
  2. Can you provide any data on the scale of current copyright infringement, or the estimated economic impact of such copyright infringement on you, your organisation or your industry more broadly?
  3. Are there any particular drivers of copyright infringement that you see as noteworthy or significant? Have these drivers changed in recent years?

Next, the Issues Paper asks 4 questions directed to ascertaining the extent to which people are using “industry-driven mechanisms”, the costs and weaknesses of such mechanisms and the scope for developing such mechanisms. Such mechanisms include “cease and desist letters” and tools like YouTube’s content ID and Facebook’s Rights Manager schemes.

Turning to “statute-based mechanisms”, the Issues Paper reports that the website blocking scheme introduced in 2015 has resulted in more than 30 cases with more than 1600 sites blocked and some 330 extensions of the “whack-a-mole” variety.

According to the 2021 Online Copyright Infringement Survey, 11% of respondents had encountered blocked websites in the previous 3 months. Of those, 59% gave up trying to access the material and 18% sought lawful access instead. On the other hand, “almost 1 in 5” had used alternative tools to navigate around the block.

Accordingly, the Issues Paper asks:

8 How effective and efficient is the current website blocking scheme as a way of combating copyright infringement and steering online consumers towards legitimate sources of content? For example, is the application process working well for parties, and are injunctions operating well, once granted?

9 Could the way the website blocking scheme operates be improved in any way (for example to address the use of new and emerging technologies to navigate around or through website blocks), including through changes to how the current scheme is practically implemented, or potential amendments to legislation?

(a) What impact would any such changes have on you or your organisation?

(b) Are there any potential broader or unintended consequences (for example, on other aspects of internet traffic management) that should be taken into account when considering changes that may be suggested through this consultation process?

The Issues Paper notes that the “safe harbour scheme”, which introduced a notice and take down scheme modelled on the DMCA, applies only to “carriage service providers” and key cultural institutions such as libraries, archives and organisations assisting people with a disability but does not extend generally to digital platforms.

The Issues Paper then asks:

10 How effectively and efficiently are the authorisation liability provisions and/or safe harbour scheme (and associated notice and take-down process) currently operating as mechanisms for addressing copyright infringement? For example:

(a) How clear are the circumstances in which a party may be considered to have authorised another person’s copyright infringement, given the courts’ interpretation of the authorisation liability to date?

(b) How effective and efficient is the safe harbour scheme (and associated statutory notice and take-down process) in striking the right balance between combatting copyright infringement and protecting the legitimate interests of service providers?

11 Are there ways in which these provisions could be amended to improve their effectiveness or efficiency?

(a) How would such changes affect you or your sector?

(b) Are there any potential broader or unintended consequences that should be taken into account when considering changes that may be suggested through this consultation process?

In its last section, the Issues Paper reports than 150 copyright matters “were brought before the courts” between 2019 and 2021. Of these 60% were brought in the Federal Court and 40% in the court formerly known as the Federal Circuit Court. The Issues Paper also refers to what it describes as the Federal Court’s “expedited claims process” and developments overseas such as the Copyright Claims Board in the United States for disputes up to USD 30,000 and the Intellectual Property Enterprise Court in the UK for claims up to GBP 10,000.

This leads to three final questions:

12 What factors influence your decisions on what action(s), if any, to take through the legal system and/or law enforcement in relation to suspected or alleged copyright infringement?

(a) For example, have you found mechanisms such as mediation, alternative dispute resolution and other non-court remedies to be preferable as ways to resolve disputes?

13 Are the various avenues available through the legal system and law enforcement to address copyright infringement suitable and effective? For example:

(a) Have you sought to engage with the courts or law enforcement in relation to suspected or alleged copyright infringements? If so, please provide (if possible) any data or examples in relation to your experiences.

(c) Are the current civil and criminal remedies under the Copyright Act appropriate?[1]

(d) What barriers (if any) do you face in engaging with the legal system? Could any models introduced in other international jurisdictions to streamline consideration of copyright matters be potentially relevant in an Australian context?

(e) Were you previously aware of the ABF’s Notice of Objection border enforcement application process?

14 Are there any ways in which the current system could be improved? How would such changes affect you or your sector?

In a very welcome move, we have been granted an extended period to make our submissions: they should be submitted by 7 March 2023.

Copyright Enforcement Review Issues Paper


  1. No. I did not inadvertantly miss out (b).  ?

It must be Christmas – there’s a copyright issues paper Read More »

Safe harbours to be Extended

The Commonwealth Government introduced the Copyright Amendment (Service Providers) Bill 2017 into Parliament today.

As its name suggests the purpose of the Bill is to extend the class of persons who can claim the benefits of the safe harbour provisions in the Copyright Act 1968 provided in sections 116AA to 116AJ.

The way the amendments will work is essentially to remove the references to “carriage service provider” and replace them with a new reference to “service provider”.

For this purpose, “service provider” will be defined to mean:

116ABA Definition of service provider

(1) Each of the following is a service provider:

(a) a carriage service provider;

(b) an organisation assisting persons with a disability;

(c) the body administering a library, if:

  (i) all or part of the collection comprising the library is accessible to members of the public directly or through interlibrary loans; or

  (ii) the principal purpose of the library is to provide library services for members of a Parliament;

(d) the body administering an archives;

(e) the body administering a key cultural institution;

(f) the body administering an educational institution.

However:

(2) If a service provider is not:

(a) a carriage service provider; or

(b) an organisation assisting persons with a disability; or

(c) the body administering an educational institution, being an educational institution that is a body corporate;

this Division only applies to activities that the service provider carries out because of its relationship to the relevant library, archives, key cultural institution or educational institution mentioned in subsection (1).f you are not one of those people, you will be able to claim the benefit of the safe harbours

If your name is Google or Facebook, or you are some other provider of services inflicting user generated content on the world, you won’t qualify.

The new definition of “service provider” may be compared with the definition enshrined in the Australia – US Free Trade Agreement in Article 17.11.29(xii) (scroll down):

(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,[1] and for the purposes of the functions referred to in clause (i)(B) through (D),[2] service provider means a provider or operator of facilities for online services or network access.

This is because, the Government has pointed out, copyright industries are highly valuable for Australia. Accordingly, the consultation process will continue:

In so doing, the Government will be mindful of the need to ensure the rights of creators are properly protected. Australia’s copyright framework ensures that creators can receive a fair return for their work. Australia’s copyright industries make a significant contribution to our economic and cultural life, including collectively generating approximately $122.8 billion in economic activity, $6.5 billion in exports and employing more than 1 million Australians.

Bill (pdf)

EM (pdf)

Minister’s Press Release

Other links


  1. That is a 116ac Category A type activity.  ?
  2. That is a Category B, Category C or Category D type activity.  ?

Safe harbours to be Extended Read More »

More consultations – copyright edition

The Copyright Regulations 1969 and the Copyright (Tribunal Procedure) Regulations 1969 are due to “sunset” – by which they mean “expire” – on 1 April 2018.

The Department of Communications and the Arts, therefore, has released exposure draft regulations for the Copyright Regulations 20171 (pdf) and the Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017 (pdf) for consideration and comment. Fortunately, there is also a 47 page consultation paper (pdf) which identifies various ways in which the new regulations are proposed to differ from the old Regulation through 13 questions.2

Submissions are required by 6 October 2017.

Some of the new matters addressed include

  • prescribed requirements for industry codes under the carriage service provider safe harbours;
  • a number of new prescribed acts where it will be permissible to circumvent technological protection measures:
    • for use of copyright material by a student enrolled in a course of study in an educational institution solely for the purpose of and in circumstances set out in sections 40, 41, 41A, 103A, 103AA or 103C of the Act provided that the use was solely for the purposes of a student complying with the requirements of the course of instruction
    • for use of copyright material by a person who carries out research for an educational institution solely for the purpose of and in circumstances set out in sections 40, 41, 41A, 103A, 103AA or 103C of the Act provided that the use was solely for the purposes of a person carrying out his or her research duties for an educational institution
    • for use of copyright material for educational purposes by or on behalf of a body administering an educational institution, acting under section 200AB of the Act
    • use of copyright material by or on behalf of a person with a disability under Division 2, Part IVA of the Act
    • use by libraries, archives and Key Cultural Institutions (as prescribed in the Copyright Regulations), under Division 3 of Part IVA of the Act
    • use in relation to access by or for persons with a disability (under Division 2 of Part IVA of the Act)
    • for use of copyright material for educational purposes undertaken under the statutory licence under Division 4 of Part IVA of the Act
  • as is the case now, there are provisions for all sorts of notices and even new questions about how they should be published.

At the grumpy old man level:

Why does reg. 12 dealing with “industrially applied” refer to 50 “articles” when section 77 refers to “products”?

Also, in a move designed to cause confusion or which fails to appreciate the difference between a section in an Act and a provision3 in a regulation, we apparently now must refer to provisions in regulations as “sections”. That should make it much easier for everyone!

There is also a Review of the Code of Conduct for Copyright Collecting Societies. If that one keeps you awake at night, you need to get you submissions in by 29 September 2017

  1. The Tribunal Procedure regulations will be rolled into the general Copyright Regulations. ??
  2. At 96 pages in length, I am certainly not to be taken to be guaranteeing those matters are the only new matters or changes. ??
  3. Formerly known as a “regulation”. ??

 

More consultations – copyright edition Read More »

More safe harbour consultations

You may recall that, when the Copyright Amendment (Disability Access and Other Measures) Bill 2017 was introduced into Parliament, it was missing the schedule in the exposure draft that extended the “safe harbour” provisions from “carriage service providers” to “service providers”.[1]

This is apparently a complicated issue and so the Government has announced it is engaging in a round of consultations led by no less a personage than the Secretary of the Department of Communications and the Arts.

The Secretary is required to report to the Minister on the outcome of the consultations by early June 2017.

Press announcement here and, if you want to try to be invited to the consultations, some contact details here.

Anybody wonder what President Trump would do if he found out we were in breach of the Australia – United States Free Trade Agreement?[2]


  1. The safe harbour provisions protect “carriage service providers” from liability to damages where they merely provide the facilities used by an infringer: see ss 116AC, 116AD, 116AE and 116AF.  ?
  2. Check out article 29(b) of Chapter 17.  ?

More safe harbour consultations Read More »

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