The paper states that the Act was amended in 2006 "to provide a scheme offering legal incentives for Carriage Service Providers (CSPs) to cooperate with copyright owners in deterring copyright infringement on their networks" -
The scheme is commonly referred to as the ‘safe harbour scheme’ and limits the remedies available against CSPs for copyright infringements that take place through their systems and networks that they do not control, initiate or direct.. At the moment tthe safe harbour scheme only applies to CSPs as defined under the Telecommunications Act 1997 (Cth) in what was thought to be "a suitable and technologically neutral term". A CSP is an entity that supplies a listed carriage service to the public using a network unit owned by one or more carriers, or a network unit that has a nominated carrier declaration. That entity must be operating primarily as a provider of network access to the public.
Application of the safe harbour scheme is not automatic. In order for a CSP to enjoy the protection provided by the safe harbour scheme, certain conditions applicable to the particular category of activity provided by the CSP must be satisfied .
The scheme covers the following four categories of activities that may be provided by CSPs:
• 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 their systems or networks, and
• Category D – referring users to an online location (for example, linking).
The paper notes that the definition poses challenges in relation to application to the Copyright Act.
Entities providing services that fall within the four categories cannot rely on the safe harbour unless they provide network access ‘to the public’. Some commercial and other entities operate servers to provide internet access for corporate clients, customers, students and other users, but not to ‘the public’. These entities activities fall within the Category A activity, but they are excluded from the definition of a CSP. Online search engines, bulletin board operators and online vendors conduct Category D activities but are excluded from the definition because they are not ‘providers of network access’ and therefore not eligible for the safe harbour. As a result, these entities face similar liability issues to CSPs in relation to infringements occurring through the services they provide.
The paper indicates that -
The Australian safe harbour scheme was implemented pursuant to the Australia-United States Free Trade Agreement. A number of other countries, in particular, Singapore and Korea, have also implemented safe harbour schemes that have allowed a broad range of entities in those countries to take advantage of the limitation on remedies available for copyright infringement occurring on their networks.As a result the Government proposes that the scope of safe harbour scheme in the Copyright Act be amended to cover a broader range of service providers.
In the United States, the courts have determined that, for the purposes of the US scheme, the term ‘service provider’ includes an internet service provider acting as a conduit for peer-to-peer file sharing programs , providers of the software and operators for instant messaging services , internet service providers that provide subscribers with news groups and online vendors . This extends the application of the scheme beyond entities responsible merely for providing the infrastructure for the internet.
The Singaporean safe harbour scheme closely resembles the US safe harbour scheme. Both schemes provide a two-tiered definition for ‘network service provider’ and ‘service provider’ respectively, which include providers of online services or operators of facilities providing online services or network access. However, in circumstances where entities are simply involved in transferring information which is not stored on the provider’s networks, Singapore provides a more limited definition of ‘network service provider’ to be specific to the conditions to be satisfied for this activity in order for the entity to enjoy limited liability under the safe harbour scheme.
The Korean copyright law contains a safe harbour scheme for entities that provide network access and online services. The Korean definition of ‘online service provider’ appears to be broader in scope than the relevant definitions provided by the US and Singapore. The definition includes persons providing others with services that reproduce or interactively transmit works, etc. through information and telecommunications networks (which includes information and communications systems, under which telecommunications infrastructure are employed, or the telecommunications infrastructure, computers, and software are used together for gathering, storage, processing, searching, transmission and reception of information).
It is apparent that the current definition of ‘carriage service provider’ gives the Australian scheme a more restricted scope than equivalent safe harbour schemes in the US, Singapore and Korea. The approach these countries have taken in implementing the safe harbour scheme has been taken into consideration in developing the proposal to amend the Australian scheme.
Amendment would involve an alternative term (‘service provider’, with a definition that is "simple and effective, technologically neutral, and consistent with Australia’s international obligations") to replace ‘carriage service provider’ for the purposes of the safe harbour scheme. That new term would cover internet service providers and operators of online services, irrespective of whether they provide a carriage service to the public. The expectation is that it would be consistent with the Australia-United States Free Trade Agreement and comparable international approaches.
The amendment is "not intended to alter the existing balance of the scheme", with eligibility continuing to be" determined by optional adherence to the conditions prescribed for each of the four separate categories of CSP activity".
In describing the broader review the Attorney-General quoted Heraclitus ("nothing endures but change") and stated that -
Earlier this year I said that I intended to provide the Australian Law Reform Commission (ALRC) with a reference on copyright. Today, I am pleased to provide more information about the terms of reference for this inquiry.There has been no indication that the ALRC, the target of significant cutbacks over several years, will receive additional resources.
The inquiry will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment.Currently the Copyright Act has general exceptions to the rules regarding infringement of copyright. These include: fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes.
There are also specific exceptions such as allowing the making of a copy of a computer program resulting from the process of normal use of the program or for back-up purposes. However, in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.
My Department is in the process of finalising proposed terms of reference in consultation with the Australian Law Reform Commission. I intend to invite stakeholders to submit comments on the proposed terms before they are finalised and anticipate releasing them for comment before the end of the year.