Road map or endless waiting game for Australia’s digital economy future?

Last week the Federal Government released its Digital Economy: Future Directions paper following a 12 month consultation process with the ICT industry.

The paper provides a broad overview of the Government’s aims in relation to its digital economy portfolio, detailing a number of initiatives already announced by the Government, including the NBN,  allocation of mobile spectrum and the switchover to digital television.  It also contains a number of case studies based on current scenarios and achievements in this area.  However, the paper does not contain any new initiatives, nor does it contain any timeframes for decisions to be made by the Government in relation to its aims.

So, what can we take from the paper?

“Appropriate” public sector information will be made more accessible

The paper expresses support for open access to “appropriate” categories of public sector information, so that Australia can enjoy the potential innovation in the digital economy. 

The Copyright Act 1968 currently puts the Commonwealth and State governments in a privileged position in relation to ownership of copyright (see section 176(2)).  However, over the past few years, there has been growing support for Government accountability through the removal of Crown ownership of copyright.  The Government’s support for open access to “appropriate” categories of public sector information appears to be in response to this growing support.  Of course, what constitutes “appropriate” categories remains to be seen.

The Government will revisit the “safe harbours” scheme and P2P issues

The Government received submissions both supporting and opposing the expansion of the existing “safe harbour” scheme to encompass a larger range of online services that are important to the digital economy (slightly more supported expansion), and the Government has promised to consider these submissions. 

A number of submissions received during the consultation phase of the paper also argued that the Government should address the popularity of unauthorised peer-to-peer (P2P) file sharing. 

The paper stated that it is still “unclear” whether the present safe harbours scheme works effectively for some types of online service providers that have subsequently grown in popularity since the scheme’s introduction.  However, we note that the availability of the safe harbour scheme to those who fall under the definition of “carriage service provider” has been under review since the scheme was introduced.

The paper cited that one solution to the P2P “problem” proposed by copyright owners was a “three strikes” or “graduated response” proposal under which copyright owners would work together with ISPs to identify the ISP’s customers who are suspected of unauthorised file sharing and the ISP would then send a notice on behalf of the copyright owner to that customer advising of this allegation.  This was, however, unpopular amongst those concerned about consumer rights.

The Government has promised to “facilitate development of an appropriate solution to the issue of unauthorised file sharing”.  However, no timeline was given. 

The Government will probably wait at least until the current AFACT/iiNet case has been heard – a case that will test the effect of the safe harbour provisions that provide certain immunities for ISPs in certain circumstances (such as transmission and hosting activities).

Given the paper’s emphasis on Australia’s global competitiveness, it is also important to keep a close eye on movements overseas. For example, the US currently enjoys a more expansive safe harbour scheme. However, last year, New Zealand introduced a new provision in its Copyright Act that requires ISPs to “adopt and reasonably implement a policy” for termination of the accounts of “repeat infringers”.  The lessons from these approaches (good and bad) will be key in developing Australia’s domestic policy.

You can find a snapshot (a 35 page summary) and the full report here.

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