JSCOT agrees: we need to fix safe harbours
This may seem like a moot point, as the TPP is opposed by President-Elect Trump and can't come into force if the US doesn't sign on. But there are still a few nuggets in the JSCOT report, nuggets that could be relevant for decisions still being made in Parliament today - like their recommendation that Australia fix our broken copyright safe harbours.
We've written about safe harbours before, and they've received a bit of media attention, so more people are becoming familiar with their workings. But for those who aren't, the copyright safe harbours are designed to encourage online service providers and copyright owners to work together to fight online piracy. They set up a system to deal efficiently with infringements online and provide carrots for both sides - those providing services like internet access, hosting and caching receive protection from liability when others use their services to infringe copyright, but only if they take steps to protect copyright owners, such as taking down infringing material as soon as they become aware of it.
Safe harbours along these lines are fairly standard these days, and were introduced by Australia 10 years ago as part of the Australia-US Free Trade Agreement (AUSFTA) implementation. But when Australia drafted its scheme it took a different approach to other nations - instead of applying it to anyone who provides these kinds of online services (including schools, universities, libraries and online platforms like Facebook and Youtube) we just applied it to commercial ISPs. This is out of line with the safe harbour schemes in the US, EU, Singapore, South Korea, Japan - pretty much everyone else in the world who has a copyright safe harbour.
There is disagreement whether this restriction was an accident or deliberate (though JSCOT call it a mistake, an interpretation we agree with). But the Law Council of Australia, the Council of Australian Governments and now JSCOT (among others) agree with our own position - Australia's current law puts us out of compliance with our international treaty obligations, including both the AUSFTA and the TPP (if it ever comes into effect), which require the safe harbours to apply to all "online service providers" not just a small subset.
But more importantly, it also causes a whole pile of problems here in Australia:
Schools, universities, and libraries have less protection than commercial ISPs like Telstra even when they're providing the same services. The legal risk is real – music companies have threatened to sue universities in the past because of student and staff infringements;
Australia is a high risk environment for tech companies that provide services like search engines or let their users post things online. This means our startups are at a competitive disadvantage to their international peers, who have lower risk and more clarity in the law. Facebook, Pintrest and Twitter are unlikely to have grown in Australia with our current legal settings;
Australian creators do not have access to an efficient anti-piracy takedown system. If an ISP is hosting a creator's material illegally, they can use the safe harbour system to send a standard form and have it removed within a day or so. If the same material is on a site like Redbubble or Envato, it isn't at all clear how they get it removed. In theory, they'd need to hire a lawyer and start sending letters - expensive and time consuming;
Australian consumers do not have local legal protections against erroneous takedown claims. So if you've posted something to a service like Facebook and someone has it taken down as infringing, there isn't a clear way for you to challenge that assertion. It's likely your material will just stay down, even if it's totally legal. The safe harbours include specific protections against this.
So it is encouraging that JSCOT has prompted the Government to expand the Australian safe harbours to cover all relevant service providers. It's interesting to note that when questioned on the issue, Government representatives appearing before JSCOT said that the reason the problem under the AUSFTA had never been fixed is because the US hasn't complained. But as JSCOT quite rightly points out in their report, "this is an Australian problem." Our schools and universities, our libraries, our tech companies, our creators and even our users are all disadvantaged by it. It should be fixed.
As JSCOT noted, there is a solution at hand. The Copyright Amendment (Disability Access and Other Measures) Bill, which was released as an exposure draft a year ago, includes a simple fix that would align our safe harbours with the rest of the world, applying them to anyone who is providing the relevant online services. But the Bill, which the Government originally planned to table early in the new parliament, is yet to appear.
Hopefully the JSCOT recommendation will help to get the Bill moving again.
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