13 August 2014 Copyright Amendments Foreshadowed: ISPs and content providers beware


In Brief

The Australian Attorney-General has released its public consultation paper regarding Online Copyright Infringement. The consultation foreshadows significant amendments to the Copyright Act 1968 (Cth) that have the potential to significantly change the legal landscape for ISPs and online content providers. Submissions are due 1 September 2014.

Scope of consultation

According to a recent PwC study, online copyright infringement poses a significant threat to Australia's copyright industries which employs over 900,000 individuals, and generates considerable economic income. Reducing online copyright infringement is key to protecting the industry.

Whilst the AG's consultation paper recognises that there are a number of factors that contribute to online copyright infringement, including availability and affordability of content, the paper is limited to the Australian Government's response to the legal framework in relation to copyright infringement. It does not touch upon the issues raised in the Australian Law Reform Commission Inquiry into Copyright and the Digital Economy, or the House of Representatives Standing Committee on Infrastructure and Communications Inquiry into IT Pricing.

Foreshadowed copyright amendments

The AG's consultation paper calls for submissions on whether a similar approach to those taken in the United States, United Kingdom and New Zealand, which includes implementing a notification mechanism focused on educating users and penalising repeat infringers, should be taken in Australia.

In particular, questions are raised as to the responsibility and liability of ISPs, such as what constitutes 'reasonable steps' that an ISP should take to prevent or avoid online copyright infringement. This is a clear response to the recent High Court decision of Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16 where iiNet was found to not have authorised the alleged online copyright infringement of its customers.

The paper also proposes an amendment to the safe harbour scheme under section 116AA to 116AJ of the Copyright Act, which currently limits the remedies against carriage service providers to injunctive relief where authorisation liability is established and the safe harbour conditions are met, by extending those remedies to 'service providers'. This would give content providers, such as universities and online search engines, that do not fall within the Telecommunications Act 1997 (Cth) definition of 'carriage service provider' the ability to rely on the safe harbour scheme, whereas currently they cannot.

The paper goes on to explore whether there should be greater scope of injunctive relief for rights holders in compelling ISPs to block access to internet sites operated outside of Australia whose dominant purpose is copyright infringement, asks for submissions on what impact any proposed amendments would have on business including regulatory compliance costs and whether there are any other approaches that may be more effective in combating online copyright infringement.

Submissions due soon

Given the exceptionally short time-frame for response, all interested parties should be quick to lodge their submissions. Further details, including a copy of the consultation paper can be found on the Attorney-General's website.

We will keep you updated on any proposed amendments to the Copyright Act as a result of the consultation process. 

For more information on how these proposed amendments will affect your business, please contact our Commercial and IP & Technology Team.

Co-authored by M Hall.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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