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Ah, the government submission process. Having finally completed my submission on the inquiry into TPM exceptions being run by the Legal and Constitutional Affairs Committee, now I can’t publish it until they decide to publish it. Shame really. I’ll put up a link as soon as it happens…

Oh well, in the meantime, if you’re starved for my views (as if!) there is the submission I made on the Attorney-General’s review of the availability of Safe Harbours under Part V Div 2AA of the Copyright Act.

Huh? I hear you ask. This is the rather less publicised review being done by AG’s, about whether it is that only Carriage Service Providers as defined under the Telecommunications Act should get the benefit of safe harbours, or whether availability should be extended more – and if so, how far. There was no press release for this review; the Issues Paper was sent to some stakeholders. It’s discussed by Warwick Rothnie here and by me here.

The Safe Harbours are things we were required to introduce into Australian law following the FTA with the United States. The purpose of the safe harbours is that certain service providers (those providing hosting, caching, search engines, and general telco services), if they follow certain rules of behaviour, are shielded from liability for copyright infringemen – they can only suffer injunctions, not damages awards. The ‘rules of behaviour’ are things like having systems for take down of allegedly copyright infringing material, and having policies on termination of repeat infringers.

The benefit of safe harbours is that it provides certainty for businesses: follow the rules, you don’t get done over in the courts. Moreover, it probably helps service providers to be slightly less risk averse – chances are, if there were no safe harbours, ISPs and others would still be taking stuff down which was alleged to be copyright infringing, but users would have no recourse.

When it re-wrote digital copyright law back in 2000, Australia originally decided against a safe harbour model for people like ISPs. Instead, they did two things:

1. They enacted specific defences, so that telecommunications or other facilities providers could not be held liable for copyright infringement ‘merely because another person uses the facilities so provided’ to infringe copyright; and
2. They ‘clarified’ the law of authorisation by putting in s 36(1A) and 101(1A).

The hope of the government was that a Code of Practice would be developed between ISPs and copyright owners to manage the issue. However, those negotiations have generally fallen apart and in the meantime, there have been lawsuits. What is more, under the interpretations of the law in Cooper and Sharman/Kazaa, authorisation is no more clear than it was, and the ‘exceptions’ in s 39B/112E have turned out to be pretty useless.

In summary, it has become clear that that system hasn’t worked all that well, and has not provided clarity. In the Digital Agenda Review, plenty of comments were made also that the law was just too uncertain. As a result, the Digital Agenda Review recommended Safe Harbours of a kind.

So it was pretty inevitable that something along these lines would eventuate in Australia, although we may not have got the US model without the FTA.

The interesting thing is that when we enacted the AUSFTA into Australian law, instead of doing what the US and other jurisdictions have done, and provide safe harbours for ‘Service Providers’ (generally), we confined ‘service providers’ to those who are ‘carriage service providers’ under the Telecommunications Act. The effect of this was to prevent a lot of ‘service providers’ – like Universities, for example – and most search engines from being able to rely on the safe harbours if they wanted to. Thus this review.

David Lindsay, from Monash Law School, gave a great paper in Canada recently, at Michael Geist’s great Comparative Australia/Canada IP/IT conference, outlining just how stupid the current limitation to Carriage Service Providers is. It was really amusing. David went, painstakingly, through the various definitions under the Telecommunications Act 1997, noting just how far you have to delve into the legislation just to start to make sense of the term. You could see the Canadians’ jaws just dropping further and further, as David ruthlessly dissected the meaninglessness of the statutory somersaults. Beautiful, in a disturbing kind of way.

Anyway, my submission, though a pale imitation only of David’s brilliant and surgical work, can be downloaded, from IPRIA’s website, here (direct link to pdf), or go to the website here.