Safe harbours still broken despite 10 year campaign to rectify drafting mistake

PRESS RELEASE: Safe harbours still broken despite 10 year campaign to rectify drafting mistake

The government today missed a crucial opportunity to rectify a 10 year old drafting error that has left Australian online platforms, educational institutions, libraries and other service providers at a competitive disadvantage and at heightened legal risk.

No move will be made on safe harbour extension, despite the proposal receiving wide support when proposed in the Online Copyright Infringement discussion paper released earlier in the year. 

“This is a missed opportunity to support Australian innovation and organisations” said Australian Digital Alliance’s Executive Officer Trish Hepworth.

“This was a simple, positive reform, in the interests of everybody.  Unfortunately it looks as if the attention has again been solely directed at piracy, rather than ensuring copyright also supports Australian businesses and organisations.”

“Safe harbours give a clear framework for rightsholders to report infringing material and have it removed.  They have inbuilt safeguards of due process for consumers and they let service providers manage legal risk.”

The safe harbour scheme protects service providers from being sued for damages as long as they take specified actions to protect rightsholders’ copyright. The system is familiar to most internet users of platforms like YouTube, Twitter and eBay, which work under the US equivalent (the DMCA). Less well known is that in the USA, and other countries with similar schemes, the same protection is extended to other service providers such as universities and schools. 

The problem in Australian arose in the implementation of AUSFTA when the term “carriage service provider” (a technical terms for telcommunications comapie and ISPs) was used rather than the wider “service provider” definition in the treaty.

“This places Australia at a competitive disadvantage” says Trish Hepworth

“Australian providers of common activities - transmitting data, caching, hosting and referring users to an online location – lack the protections and certainties enjoyed by their overseas competitors. It places schools, universities and libraries in a risky position as they go about their everyday business. ”

 “The net result is that Australia is a less attractive place to host online services.  We would strongly encourage the government to reconsider their position in the interests of Australian innovation and industry.”

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