Rights Owners, Internet Companies Far Apart In Australian Copyright Consultation

Responses to an Australian government proposal for fighting online copyright infringement show a wide gap between rights holders and internet companies on liability, and website blocking.

The proposal, set out in a July 2014 discussion paper [pdf] outlined the government’s planned approach to amending the Copyright Act 1968 to “provide a legal framework within which rights holders, ISPs [internet service providers] and consumer representatives can develop flexible, fair and workable approaches” to cutting online infringement.

The consultation ended 1 September. Submissions are available here.

ISP Liability

The discussion paper recommended three major changes to copyright law. The first, and most controversial, would clarify the application of “authorisation liability” to ISPs. Under Australian law, a person may be liable for authorising an act that infringes copyright subject to three factors: the extent of the person’s “power to prevent” the act; the nature of any relationship between the person and whoever carried out the infringement and whether the person took any “reasonable steps” to stop the piracy.

Even where an ISP does not have a direct power to prevent copyright breaches, there still may be reasonable steps it can take to discourage infringement, the paper said. It proposed making the power to prevent just one of several relevant factors a court must consider in determining if an ISP has taken reasonable steps.

Either ISPs come up with an industry agreement on an appropriate system or commercial arrangements that constitute reasonable steps or the government will legislate, it said. Appropriate agreements could include New Zealand’s “graduated response” system in which suspected pirates receive escalating warnings and potentially fines, or a US-style Centre for Copyright Information and Copyright Alert System.

Copyright owners backed making ISP liability for breaches clearer, but many supported an alternative proposal by Music Rights Australia (MRA). It argued that the proposal could allow commercial arrangements under which ISPs and rights holders have operated for many years to be open to reinterpretation and possibly litigation, and that it could go beyond the desired result of targeting ISPs.

MRA recommended that in the absence of a relevant industry scheme or commercial arrangement, a carriage service provider would be considered to have authorised infringement if it had actual knowledge that one of its subscribers was infringing and didn’t take action. That would motivate ISPs to take more responsibility, MRA said.

Unsurprisingly, online companies such as Google and ISPs rejected the idea. Changing authorisation liability would go well beyond addressing illegal peer-to-peer file-sharing and apply to cloud service providers, search engines and the like, said Google, the Australian Information Industry Association and others.

The European Internet Service Providers’ Association said voluntary agreements shift enforcement powers from courts to internet intermediaries, depriving alleged infringers and consumers of due process and a fair trial. It urged the government to “follow the example of the European Commission” through non-legislative actions such as targeted awareness campaigns and a “follow the money” approach to reduce the profits of commercial-scale intellectual property infringement.

Copyright owners should bear the expense of requiring ISPs to take further measures to deter infringement, said the Electronic Freedom Foundation. Otherwise, there will be a “perverse incentive” for copyright owners to over-rely on enforcement measures “that they can offload onto ISPs” and to under-invest in mechanisms for reducing piracy, such as offering legal content inexpensively and conveniently, it said.

Creative Commons Australia argued that the government proposal “poses significant risks to creativity, free expression, and the flow of information, knowledge and culture” because ISPs aren’t in a good position to monitor and enforce copyright breaches. The Australian Privacy Foundation said legislation, not industry self-regulation, is needed to protect users’ privacy rights.

Blocking Overseas Sites

The second leg of the government proposal would require ISPs to block access to overseas websites containing infringing content. It would amend the Copyright Act to allow rights holders to apply for a court order against ISPs, subject to bearing any associated reasonable costs of blocking.

There were also opposing views here. The Australian Communications Consumer Action network, BSA-The Software Alliance and others, for example, criticised the proposal for failing to include a mechanism for legitimate users of a website to present evidence against an injunction. BBC Worldwide, however, said the proposed criteria for deciding whether to grant a blocking injunction – that rights holders can establish the identity of the infringing website operating outside Australia, and that the site’s dominant purpose is to infringe – are “relevant and appropriate.”

Extended Safe Harbour

Finally, the government proposed broadening the act’s safe harbour scheme to entities other than just “carriage service providers” as defined in telecommunications law.

The amendment would limit the remedies available against “service providers” for direct or authorised infringements when they’re: acting as conduits for internet activities by transmitting, routing or providing connections for copyright material; caching through an automated process; storing copyrighted content on their systems or networks; and referring users to an online location.

Where there is authorisation liability and safe harbour conditions are met, the only remedy available against an ISP would be injunctive relief. ISPs which don’t satisfy the safe harbour condition, however, could face monetary damages.

Many respondents favoured extending safe harbour, although MRA and several others said they’re opposed unless service providers are also covered by extended authorisation liability provisions. The Australian Digital Alliance called broadening safe harbour “long overdue.” However, it panned attempts to continue “patching” an outdated, unwieldy law.

Next Steps

The government is now considering the submissions received, the Attorney-General’s website says.

Australia is working on a free trade agreement with Korea (the KAFTA). The national interest analysis that accompanies the proposal said that to fully implement its obligations under KAFTA, the government will have to amend the Copyright Act to “provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorizing infringements of subscribers.”

“Recent research commissioned by the Australian Digital Alliance concluded that our authorisation liability was as broad or broader than that in similar common-law jurisdictions such as the USA,” said Trish Hepworth, ADA executive officer. None of Australia’s trading partners has complained that it is in breach, she said. “Our considered opinion, shared by many academics, is that we are not in breach and that legitimate concerns could be raised about ‘policy laundering’ domestic issues through international trade agreements.”

Image Credits: Flickr CC – ntr23