March 24, 2017 | By Jeremy Malcolm

Australia Stalls Copyright Safe Harbor Proposal

Copyright safe harbors for Internet intermediaries are under attack from Big Media both in the United States and in Europe. Laying the blame for falling revenues on platforms such as YouTube and Facebook (despite that fact that revenues aren't actually falling at all), their aim is to impose new controls over how these platforms allow you to access and share content online. The control at the top of their wish-list is a compulsory upload filter, that would automatically screen everything that you upload. Such a requirement would be a costly imposition on smaller platforms and new innovators, and provide governments with a ready-built infrastructure for content censorship.

In Australia, the situation is a little different—because due to an oversight in implementation of the original U.S.-Australia Free Trade Agreement in 2005, they never had a copyright safe harbor system to begin with; or rather, a much narrower one which only applies to ISPs, but not to other Internet platforms, nor even to other Internet access providers such as libraries and educational institutions. This oversight was due to be remedied with the passage of new amendments to Australia's Copyright Act. (The TPP, had it passed, would also have required Australia to bring in this reform.)

Unfortunately pressure from copyright holders, including a well-orchestrated astroturf campaign, put the kibosh on that this week, when the safe harbor reforms were dropped from the copyright amendment Bill. What does this mean in practice? Essentially it translates into a huge potential legal liability for Internet platforms that allow users to upload content. Because they don't have any protection from liability for user content that infringes copyright, there is the risk that their services could be characterised by a court as inducing or contributing to copyright infringement, much in the same way that file sharing software was accused of doing so in a rash of U.S. lawsuits in the early 2000s.

While much of that file sharing software was driven into extinction, the same fate did not befall America's user generated content websites. This wasn't for lack of trying by Big Media. In the Viacom v. Youtube case, they argued that YouTube was liable for copyright infringements in the videos that its users uploaded. Thanks to the DMCA safe harbor Viacom lost the case (though an appeal was later settled), and to this day websites in the U.S. remain entitled to allow users to upload content of their choice, without taking on advance responsibility for the copyright status of that content. Instead, if a copyright infringement is alleged, the copyright holder issues a takedown notice to the website, which will remove it and leave the next steps up to the user and the copyright holder.

In Australia, a similar case might be decided differently, and content sharing platforms could be shut down in the absence of an adequate safe harbor protection. This leaves platforms with the stark choice to run the risk of being required to pay enormous penalties to copyright holders, or preemptively enter into agreements with copyright holders to pay license fees for all user uploaded content, or exit the Australian market altogether. In short, Australian online innovators face a lot more risk and uncertainty for as long as they lack adequate copyright safe harbor protection.

Australia had the opportunity to bring its laws into line with equivalent laws from the U.S. and Europe, and international standards as encapsulated in the Manila Principles on Intermediary Liability. This week, it squandered that opportunity by sending the proposal back to the drawing board, and it's Australian innovators, libraries, educational institutions, and their users who will suffer. We urge the Australian government to look beyond the copyright lobby to the broad sectors of Australian society who have expressed support for this important reform, and to reintroduce it at the earliest opportunity.


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