And the copyright changes keep coming – safe harbour, fair dealing and more

If copyright lawyers hadn’t already had a busy enough year in 2015 with the introduction of the Copyright Amendment (Online Infringement) Act 2015, they were in for a special holiday treat when the Department of Communications and the Arts released some more interesting draft amendments to the Copyright Act 1968 (Cth) (“the Act”) for public comment on Christmas Eve.

Among other things, the Copyright Amendment (Disability Access and Other Measures) 2016 (“Bill”) proposes to extend the application of the “safe harbour” scheme beyond carriage service providers (“CSPs”), and seeks to reduce the regulatory burden on the disability sector, libraries, archives and educational and cultural institutions.

Comments on the Bill are due on Friday, 12 February 2016.

 Broadening the ‘safe harbour’ – who is allowed to dock?

The Act currently limits the remedies that are available against CSPs for copyright infringement in carrying out certain online activities, provided the CSP satisfies certain conditions (the so-called “safe harbour”). The relevant categories of online activities are:

  • 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 a carriage service provider’s systems or networks
  • Category D: referring users to an online location

However, not all entities providing these services may rely on the safe harbour. The definition of CSP is limited to a person that supplies, or proposes to supply, a listed carriage service to the public, using a network unit owned by a carrier (or a network unit in relation to which a nominated carrier declaration is in force). This differentiates CSPs from content service providers, as well as entities like universities, who may not supply services to the public. The copyright safe harbour in other countries, including the USA, is not so limited.

For Category B, C and D activities, the Bill extends the application of the safe harbour provisions to “service providers”, defined as “providers or operators of facilities for online services or network access” (which would include organisations like universities and purely online service providers like search engines and cloud service providers). The Bill also proposes to move away from the CSP definition for Category A activities to a concept of “service provider” defined as a provider of transmission, routing or connections for digital online communications without modification of their content. Conditions must still be fulfilled in order for the scheme to apply – for example, service providers must have a policy that allows accounts of repeat infringers to be terminated, and must comply with relevant industry codes.

This is not the first time that the Government has considered whether to extend the safe harbour beyond CSPs. The 2011 Public Consultation Paper ‘Revising the Scope of the Copyright Safe Harbour Scheme’ and the 2014 ‘Online Copyright Infringement’ Discussion Paper contemplated using similar definitions of “service provider” for the purposes of the safe harbour. The proposed definitions are intended to reflect the definition under the Australia-United States Free Trade Agreement and under the Trans Pacific Partnership Free Trade Agreement.

If it is finally implemented, the expansion of the safe harbour is sure to be welcomed by those in the technology industry, going some way to addressing the continuing concerns of the technology sector that the Act is outdated and is not technologically neutral.

Fair dealing exception to allow people with disabilities access to material

The Bill introduces a new simplified fair dealing exception for individuals with a disability so that a fair dealing with copyright material will not infringe copyright if the dealing is for the purpose of a person with a disability having access to the material. The exception is intended to be relatively broad in scope, and is technology neutral. “A person with a disability” is defined as a person with a disability that causes the person difficulty in reading, viewing or hearing copyright material in a particular form (modelled on the concept of ‘disability’ in section 200AB(4) of the Act, the existing exception that is intended to allow copyright material to be used to reduce people’s difficulties in accessing material). The new exception would sit alongside the existing fair dealing exceptions.

We note in passing that there is still no sign of the introduction of a broader “fair use” exception, as was recommended by the Australian Law Reform Commission (“ALRC”) in its “Copyright and the Digital Economy” report in November 2013. Currently, the Act contains several exceptions to copyright infringement for “fair dealing” for the purposes of research or study, criticism or review, parody or satire, or for reporting the news. The ALRC recommended that a US-style fair use exception be adopted, so that copyright would not be infringed, regardless of the purpose for which material is used, provided that the use was “fair”. This would be determined by reference to a non-exhaustive list of “fairness factors” like the amount and substantiality of the material used, the effect of the use upon the potential market for, or value of, the copyright material, etc. In August 2015, the Attorney-General’s Department commissioned a cost benefit analysis for rights holders and copyright user groups of the ALRC’s recommendation. The results were expected to be published by the end of 2015 but have not yet been released. The introduction of a new “fair dealing” exception may soon become outdated if a fair use exception is introduced (or alternatively, it may indicate an intention not to introduce a fair use exception).

To complement the new look exception for individuals, the Bill also introduces an exception to copyright infringement so that institutions assisting a person with a disability (defined as an educational institution, or an institution with the principal function of providing assistance to persons with a disability) will not infringe copyright if the use is for the sole purpose of the provision of assistance. The institution must also be satisfied that the material cannot be obtained within a reasonable time at an ordinary commercial price in the format that the person with the disability requires. The Bill removes the requirement that institutions be ‘declared’ by the responsible Minister to be an institution assisting a person with a print or intellectual disability, along with other administrative requirements.

The decision to reform the exceptions to copyright infringement where material is used to assist persons with a disability follows Australia’s decision to sign the Marrakesh Treaty in 2014 (a treaty that requires countries to have a domestic copyright exception covering the creation of accessible versions of copyright works for people who are blind, visually impaired or otherwise print disabled, and to allow for the import and export of those materials). The Federal Government has also stated that is it separately preparing amendments to the Copyright International Protection Regulations 1969 to include a positive statement that it is not an infringement of copyright to exchange literary and artistic works across borders for the purposes of compliance with the Marrakesh Treaty. Amendments are also being prepared to ensure that in this circumstance, technological protection measures can be circumvented where necessary.

Other proposed changes

The Bill also seeks to simplify the statutory licence scheme for educational institutions and streamlines the exceptions for libraries, archives and key cultural institutions to allow them to make preservation copies of copyright material for archiving purposes, and to use copyright material for research purposes.

The Bill also harmonises the copyright term for published and unpublished works by creating a new general protection period, consisting of life of the author plus 70 years, without differentiating between published and unpublished works. The proposed amendments similarly provide a protection period of 70 years from the year in which a work is ‘made’ (i.e. making plus 70 years) where the identity of the author is ‘generally unknown’ during this 70 year period.


About the Author

Daniella Phair
Daniella's heart belongs to anything IP related. From cloud computing to fashion trade marks to online advertising, Daniella’s IP interests are broad and varied. Whether her IP Whiteboard posts involve trawling Perez Hilton’s gossip websites or reading an ALRC report, Daniella is up for a challenge. She most enjoys the fact that her interests in IP are becoming increasingly intertwined with her entrenched addiction to all things social media and loves being able to legitimately spend 6 hours on Facebook a day at work…
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