On 29 June 2018, the Copyright Amendment (Service Providers) Bill 2017 (Cth) (Act) received royal assent. The Act extends the safe harbour protections in Division 2AA of Part V of the Copyright Act 1968 (Cth), bringing organisations operating in the disability, educational and cultural sectors into Australia's safe harbour regime. The safe harbour regime currently protects only a narrow class of “carriage service providers”, being telcos and ISPs. The amendments take effect on 29 December 2018.
The amendments will limit the scope of remedies available against service providers operating in these industries who implement notice and takedown procedures to remove infringing material and who otherwise comply with the conditions in section 116AH of the Copyright Act 1968 (Cth). The amendments do not operate to extend the safe harbour regime more broadly to any service provider who offers, hosts or aggregates content online. They represent the Government's first step to incremental safe harbour reform.
Conditions for new service providers
Under the new regime, all service providers, regardless of the type of service they offer, must adopt and reasonably implement a repeat infringer policy culminating in the termination of user accounts. Service providers who store copyright material on a system or network at the direction of users or who refer users to online locations through hyperlinks or other tools (for example, through an electronic library catalogue) must also meet the following requirements to obtain safe harbour protections:
- not receive a financial benefit that is directly attributable to the infringing activity where they have the right and ability to control that activity;
- expeditiously remove or disable access to material that is, or is likely to be, infringing; and
- implement takedown procedures and remove or disable access to material upon receipt of notice of claimed infringement by copyright owners.
These requirements are identical to those already in place for carriage service providers such as telcos and ISPs that offer similar services. It is understood that many service providers operating in these sectors have already adopted takedown procedures to remove infringing material from their network and are already working with copyright owners to achieve this objective.
Copyright Amendment (Service Providers) Regulation 2018 Exposure Draft
On 5 June 2018, the Government proposed the Copyright Amendment (Service Providers) Regulation 2018 Exposure Draft to amend the Copyright Regulations 2017 to extend those regulations to the broader class of service providers operating in the disability, educational and cultural sectors. The effect of the government's proposed regulations is to ensure that the notice and takedown scheme prescribed by the current regulations applies to this broader range of service providers. The consultation period for the Exposure Draft ended on 29 June 2018 and it is currently under review by the Department of Communications and the Arts.
Further consultation for safe harbour reforms
The Government has foreshadowed that further consultation will occur as they continue to consider broader safe harbour reforms. It is expected that companies who host, aggregate and offer content online who currently fall outside the scope of the safe harbour regime will continue to make submissions to extend the scope of Australia's safe harbour regime, and bring Australia more in line with the US, where those providers are protected by copyright safe harbours.