[LINK] FW: [copy-lib] Update on Copyright Legislation Amendment Bill / ISP Safe Harbour Scheme

[Jan Whitaker]

>-----Original Message-----
>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 
>infringing'.
>
>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.
>
>
>Regards,
>
>
>Sarah Waladan
>
>Executive Officer
>Australian Digital Alliance
>
>Copyright Advisor (Law & Policy)
>Australian Libraries' Copyright Committee
>
>Ph: (02) 6262 1273
>Fax: (02) 6273 2545
>
>www.digital.org.au


JLWhitaker Associates
Melbourne, Victoria, Australia
jwhit at melbpc.org.au  --  http://member.melbpc.org.au/~jwhit/whitentr.htm
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