Music Rights Australia’s GM outlines “significant” change to Safe Harbours

Government proposal for Safe Harbour expansion delivered late December

Many of you may not have noticed that on December 23 the Australian Government produced an Exposure Draft to amend the Copyright Act, which has the potential to impact the creative content industries in a significant way.

One reason this may have not come to your notice is the name of the draft Bill which is called the Copyright Amendment (Disability Access and Other Measures) Bill 2016. (Exposure Draft).

Among the “Other Measures” is a significant change to the operation of the Safe Harbour Scheme.

Interested parties have until 12 February to comment on the Exposure Draft.

What could this mean for the creative industries?

In 2014, the Government published a discussion paper which included a proposal to expand the Safe Harbour Scheme. However, the Government has never given any response to the many submissions advocating against the expansion, nor has it articulated its policy for supporting the expansion or given any prior indication it would move to amend the Copyright Act at this time.

The decision to make this change at this time is even more puzzling in light of the ongoing robust review of the US Safe Harbour Scheme which is being undertaken by the US Copyright Office.

The local Safe Harbour Scheme is in large part modeled on the US system. The local scheme is limited to Carriage Service Providers (CSP) not Service Providers (SP) more generally as the US scheme is. However, in large part the central elements of the schemes are the same.

It would be better to wait for the US review to conclude so that we can review the recommendations. For example there is evidence in the US review that the notice and take down system may need to be improved as the huge volume of infringing material was never envisaged when it was first developed.

The Exposure Draft does not address this issue at all.

MRA believes that this alone indicates that the Government should give the issue more thought, consult more broadly and importantly use the opportunity which the international review offers Australia so we can ensure that if changes are required to the local Safe Harbour Scheme that we achieve the optimum outcome for all parties.

As stated previously, the Government has not advanced its case for changing the local scheme to include a broad range of SPs.

All that is said on this issue in the document which accompanied the Exposure Draft is:

“The proposed amendments expand the current ‘safe harbour’ provisions in the Act to cover a broader range of entities, including educational institutions and other online services (such as online search engines, bulletin boards and cloud services).”

These examples are of concern as they do not appear to be guided by the driving policy underlying the current Safe Harbour Scheme. That policy is clear. It deliberately distinguishes between:

• those who provide content (whether as a business or a non- profit) and who are in a position to moderate content on their site or network; and
• those who merely facilitate the communication of content.

The Government should not abrogate its role in both stating the case for change and in articulating the policy basis for the change from CSP to SP.

If it were to clearly articulate both, it would help all the interested parties understand its purpose and this would in turn help everyone make appropriate and meaningful suggestions to improve the draft legislation to ensure there are no unintended consequences.

In particular, MRA urges the Government to take time to ensure this process results in the best outcome.

This can happen if the Government:

• Ensures changes are made on clear articulated and sound policy grounds;
• Takes advantage of the US review and waits until the recommendations are made; and
• Ensures there is appropriate consultation and parliamentary review so all voices are heard on this important issue.

Additionally MRA urges the Government to consider any change to the Safe Harbour Scheme in the context of its impact on the current range of licensed service providers and new services which should be licensed and the legitimate expectations of copyright owners that there will be no unnecessary erosion of their rights.