Service Provider Liability - How Safe is the Safe-Harbour?

The Australian Digital Alliance (ADA) and the Australian Libraries Copyright Committee (ALCC) last Friday called on Government to urgently review the Copyright Legislation Amendment Bill 2004, which is expected to be debated in the Senate on Wednesday.

The ADA and ALCC expressed concern that the Bill, in its current form, will introduce major changes to Australian copyright law which will further tip the copyright balance in favour of rights holders, to the detriment of carriage service providers (CSPs) and users of copyrighted material.

The Bill, which purports to introduce a safe-harbour scheme for CSPs, includes two provisions that appear to move away from the safe-harbour scheme that was agreed during AUSFTA negotiations.

The provisions of concern state that CSPs must expeditiously remove any material from their networks if they ‘become aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing’.

These provisions appear to impose additional obligations on CSPs, independant of and contrary to any safe-harbour.

They shift the onus back to CSPs to monitor their systems for material which ‘is likely’ to be infringing, contrary to a specific provision in the text of the Australia – US Free Trade Agreement that provides that ‘any safe harbour may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.’

As well as being contrary to the purpose of having a safe-harbour scheme, the ADA and ALCC are of the view that the inclusion of an excessively broad and subjective test as is contained in these provisions, places pressure on CSPs to remove a wide range of material as soon as they have any suspicion that it may be infringing.

This necessarily has a significant adverse impact on users. Not only will a vast amount of material be required to be taken down when it has not been proven to be infringing, but users will have no right of objection if they believe that the material is not in fact infringing.

These provisions go beyond what is prescribed in the AUSFTA, and leave CSPs vulnerable to litigation outside the scope of any safe-harbour scheme.

The ADA and ALCC urged the Government to address these concerns, warning that the provisions as currently drafted could have unintended consequences and potentially frustrate the whole purpose for legislating for such a scheme in the first place.

This media release is made on behalf of the Australian Digital Alliance (ADA) and Australian Libraries’ Copyright Committee (ALCC).

The ADA is a coalition of public and private sector interests formed to promote balance copyright law. ADA members include universities, software companies, libraries, schools, museums, galleries and individuals. The ALCC is a cross-sectoral committee formed to consider the impact of copyright law reform on Australian libraries. The ADA and ALCC are united by the idea that copyright law must balance a fair return to creators with a reasonable level of access to knowledge for the public.