[LINK] FW: [copy-lib] Update on Copyright Legislation Amendment Bill
/ ISP Safe Harbour Scheme
jwhit at melbpc.org.au
Thu Dec 16 10:22:22 EST 2004
>From: Sarah Waladan
>Sent: Wednesday, 15 December 2004 4:31 PM
>To: LForward copy-lib
>Subject: [copy-lib] Update on Copyright Legislation Amendment Bill / ISP
>Safe Harbour Scheme
>Dear ALCC List Subscriber,
>As you may be aware, the Copyright Legislation Amendment Bill (the Bill)
>passed through the Senate last week. This Bill basically made further
>changes to copyright law in addition to those already anticipated by the
>Aus - US FTA implementation Bill. Some of the changes were minor and
>clarifying, others appeared to be substantial and contrary to the
>interests of the ADA and ALCC.
>As a result of this, the ADA and ALCC had an active week of consulting
>with Government and other stakeholders in relation to concerns with the
>Bill. Last Monday (6 Dec) both organisations were represented at a Senate
>Legal and Constitutional Committee inquiry in relation to specific aspects
>of this Bill. The aspects of concern which were the subject of this
>inquiry related to service provider liability, and more particularly, to
>the introduction of a safe harbour scheme in Australia. Particularly, the
>inquiry focused on two items in the Bill; 11 & 13.
>Items 11 and 13 amend the table at section 116AH of the AUSFTA
>implementation Bill to provide for additional conditions which apply to
>Category C and Category D carriage service providers, that they will need
>to abide by in order to avoid liability for copyright infringement.
>(Category C CSPs are defined as service providers that store material on
>their systems at the direction of a user. Category D service providers are
>defined as those that refer users to an online location using information
>location tools or technology.)
>Items 11 and 13 provide that a CSP 'must expeditiously remove or disable
>access to material on its network if it becomes aware of facts or
>circumstances that make it apparent that the material is likely to be
>The ADA and ALCC were concerned about these amendments for 2 main reasons.
>Firstly, items 11 and 13 appear to place an additional obligation on CSPs
>to ensure that the broad range of material that is encompassed by this
>test is removed, independent of the take-down notice procedure.
>To provide an example, if any person in any way or form notifies a CSP
>that they believe that material on their system is in breach of copyright,
>does this then mean that the CSP has become aware of facts that 'make it
>apparent that the material is likely to be infringing', sufficient to
>bring about a positive obligation on the CSP to remove that material?
>Furthermore, on this reading of the legislation (i.e. that items 11 and 13
>present additional obligations on CSPs independent of the take-down
>procedures), there appears to be no recourse for users who believe that
>the material is not in fact infringing to contest the take down, and
>indeed no obligation on the CSP to even notify the user that the material
>in question has been removed.
>The ADA and ALCC were concerned that if such a reading of the legislation
>was intended, this not only defeats the whole purpose of having a safe
>harbour scheme, but it is also contrary to a specific clause in the AUSFTA
>which provides that any safe harbour scheme will not require CSPs to
>monitor material/traffic on their systems.
>Secondly, the wording of the test was and remains a major concern for the
>ADA and ALCC. The broad and vague nature of the test means that a broad
>range of material is covered by the provision, whether or not that
>material is in fact in breach of copyright. Essentially this leaves
>uncertain the extent of a CSPs obligations under the scheme.
>Throughout consultations and negotiations in relation to the proposed safe
>harbour scheme, the ADA and ALCC have consistently advocated for a system
>which does not require material to be removed unless it has been found to
>be infringing by a court, or at the very least, unless legal proceedings
>have been initiated by the copyright owner. These views were reiterated at
>the Senate inquiry last Monday.
>Last Wednesday, the Bill passed through the Senate without any amendments.
>A letter from the Minister for Trade, the Hon Mark Vaile MP, to the Shadow
>Minister for Trade, the Hon Simon Crean MP, was tabled in Parliament
>however which clarified some of the issues of concern. Particularly, it
>stated the following;
>1. items 11 and 13 are intended to operate as part of the safe harbour
>scheme rather than independent of it. Thus, as with the rest of the
>scheme, it is optional should a CSP wish to be covered by the scheme.
>Whilst this may be the case, the ADA and ALCC are still concerned that the
>way the legislation reads, if a CSP wishes to be covered by the scheme,
>they must abide by these conditions. If they do not, they will not be
>covered. Items 11 and 13 are additional conditions that are required to be
>fulfilled, and the broad nature of the legislation leaves unclear what
>type of circumstances must exist for those conditions to kick into effect.
>2. CSPs 'are not obliged to takedown material that is merely alleged by a
>party to infringe copyright.. a service provider seeking to access the
>safe harbours need only act if it is apparent that material is likely to
>be infringing.' This clarifies the test at least to the extent that a
>mere allegation of infringement would not fall within the ambit of the
>test - somewhat of a relief.
>3. items 11 and 13 do not remove the right of copyright users to contest a
>take-down notice. Any concerns of this sort will be addressed in the
>Regulations (scheduled to be released on 16 December 04). This again seems
>to indicate that a proper avenue for users to be notified of any take-down
>and indeed to be able to contest any take-down pursuant to items 11 and
>13, will be provided for in the Regulations. The extent to which this is
>done will no doubt be revealed shortly.
>In addition to this letter, Government has indicated that;
>1. "likely to be infringing" should be taken to mean 'probably',
>2. "facts and circumstances that make it apparent" should not be
>interpreted as requiring any positive actions to be taken by CSPs, and
>3. if CSPs, after having removed material, replace that material
>believing in good faith that it is not likely to be infringing, they will
>still be covered by the safe harbour scheme. This is important
>for users as without the scheme extending to a CSPs actions in this way,
>CSPs would effectively be discouraged from replacing material in case they
>will be caught out if the material is later found to be infringing.
>Whilst it is difficult to envisage how this scheme will work in practice
>without knowing the details contained in the Regulations, these clarifying
>comments, to the extent that they are realized in law, are positive and
>address several concerns that we initially had in relation to the scheme.
>Having said that of course, we need to bear in mind that any
>sub-legislative instruments (such as Regulations) will be read in a manner
>consistent with the actual legislation.
>Australian Digital Alliance
>Copyright Advisor (Law & Policy)
>Australian Libraries' Copyright Committee
>Ph: (02) 6262 1273
>Fax: (02) 6273 2545
Melbourne, Victoria, Australia
jwhit at melbpc.org.au -- http://member.melbpc.org.au/~jwhit/whitentr.htm
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