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Copyright Amendment (Service Providers) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

COPYRIGHT AMENDMENT (SERVICE PROVIDERS) BILL 2017

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications,

Senator the Honourable Mitch Fifield)



COPYRIGHT AMENDMENT (SERVICE PROVIDERS) BILL 2017

 

OUTLINE

The Copyright Amendment (Service Providers) Bill 2017 (the Bill) extends the operation of the safe harbour scheme and will limit remedies available against carriage service providers in Division 2AA of Part V of the Copyright Act 1968 (the Act) to a broader range of service providers in the disability, educational and cultural sectors.

The Bill amends the Act to expand Division 2AA of Part V of the Act to cover the following additional kinds of service providers:

·          educational institutions, through their administering bodies, including universities, schools, technical colleges, training bodies and pre-schools;

·          libraries that either make their collection available to the public or are Parliamentary libraries, through their administering bodies;

·          archives, through their administering bodies, including the National Archives of Australia and specified state archives, galleries and museums;

·          key cultural institutions, through their administering bodies, including specific archives and libraries that are not open to the public; and

·          organisations assisting persons with a disability.

 

FINANCIAL IMPACT STATEMENT

The Bill will not have a significant impact on Commonwealth expenditure or revenue.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Copyright Amendment (Service Providers) Bill 2017

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of Bill

The purpose of the Bill is to extend the safe harbour scheme, as set out in Division 2AA of Part V of the Act, to cover a broader range of service providers, which include educational institutions, libraries, archives, key cultural institutions and organisations assisting persons with a disability.

In circumstances where the creation and distribution of copyright material is done by businesses which are incorporated entities (as opposed to individuals), the provisions in the Bill would not engage with human rights.



Human rights implications

The Bill engages the following rights:

1.       rights in work in Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and

2.       the right of everyone to benefit from the protection of moral and material interests resulting from any literary or artistic production of which he or she is the author in Article 15(1)(c) of the ICESCR.

The purpose of the existing safe harbour scheme is to provide limitations on the scope of remedies available against ‘carriage service providers’ for copyright infringements that they do not control, initiate or direct and that take place through their systems or networks (and subject to the condition that the provider takes particular steps to deter infringement).

 

Currently the safe harbour scheme only extends to a ‘carriage service provider’, as defined in the Telecommunications Act 1997 as a person who uses a network unit to supply carriage services to the public. This includes telecommunications companies such as Telstra, Optus and TPG.

The Bill includes provisions which would extend the safe harbour scheme in the Act to cover an additional group of service providers, including organisations assisting persons with a disability, and bodies administering certain educational institutions, libraries, archives and cultural institutions.

Extending the scope of the safe harbour scheme would ensure the ‘notice and take down’ system provided for under the scheme applies to this broader range of service providers. This would enable copyright owners to send a service provider, for example a school, a notice of claimed infringement in accordance with the prescribed requirements, and upon receipt of that notice, the school would be required to expeditiously remove the infringing material from its network. This would not require a court order, and therefore would be a quicker and much less expensive way for copyright owners to work with the additional group of service providers to arrange for the removal of infringing content.

In the human rights context, copyright owners may argue that expansion of the safe harbour scheme may weaken or remove existing deterrents against online copyright infringement, which would in turn limit their ability to be fairly remunerated for their work, under Article 7 of the ICESCR.

Additionally, copyright owners may argue that in some circumstances, extension of the safe harbour scheme in the Act would compromise their right to benefit from the protection of the moral or material interests resulting from the literary or artistic production of which they are authors, as provided for in Article 15(1)(c) of ICESCR.

However, the measures in the Bill amending the safe harbour scheme would more practically assist copyright owners to stop online copyright infringement and, in turn, promote copyright owners’ right to fair remuneration under Article 7 of the ICESCR. These measures are better adapted to the way service providers operate in practice, and would remove some of the uncertainties and risks they encounter in providing valuable services to the community. These measures would enable service providers and copyright owners to work together to decrease rates of online infringement. In doing so, they would promote the rights of copyright owners to receive fair payment for their work.

The educational, cultural and disability sectors generally take a very risk averse approach to protecting and managing the copyright of others. Many of the institutions and organisations who, under this Bill, will be covered by the safe harbour scheme already comply with the requirements of the scheme, and actively work with copyright owners to remove or disable access to infringing material residing on their systems or networks or to take action against repeat infringers.

On this basis, the safe harbour amendments made by Schedule 1 to the Bill are consistent with the rights guaranteed by Article 7 and 15(1)(c) of ICESCR.

Conclusion

The Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 , because it advances the protection of human rights, and, to the extent that it may also limit human rights, those limitations are reasonable and proportionate.



 

NOTES ON CLAUSES

Clause 1 - Short title

Clause 1 provides for the short title of the Act to be the Copyright Amendment (Service Providers) Act 2017.

Clause 2 - Commencement

Clause 2 of the Bill provides for the Bill, when enacted, to commence as set out in the table.

Item 1 in the table provides that Schedule 1 commences on the day after the period of six months beginning on the day on which the Bill receives the Royal Assent.

Clause 3 - Schedules

Clause 3 is a machinery clause that enables the Schedules to amend the Act. The Bill contains one Schedule.

Schedule 1 - Limitation on remedies available against service providers

Copyright Act 1968

Item 1 - Division 2AA of Part V (heading)

Item 1 substitutes the heading to Division 2AA of Part V of the Act.

Items 2, 4 and 7 - Sections 116AA, 116AB and 116AC to 116AJ

Items 2, 4 and 7 replace references to a ‘carriage service provider’ with ‘service provider’ in subsection 116AA(1), in the definition of ‘caching’ in section 116AB and in sections 116AC to 116AJ, as the safe harbour scheme is being amended to cover a broader range of service providers as defined in section 116ABA, to be inserted by item 6.

Item 3 - Subsection 116AA(1) (before note 1)

Item 3 inserts a new note following subsection 116AA(1) outlining the reference in the subsection to ‘service provider’ is defined in new section 116ABA.

Item 5 and 6 - Section 116AB and proposed section 116ABA

Currently, the safe harbour scheme, as set out in Division 2AA of Part V, applies to a ‘carriage service provider’, as defined in the Telecommunications Act 1997 , that is, a person who uses a network unit to supply carriage services to the public. This includes telecommunications companies such as Telstra, Optus and TPG.

Items 5 and 6 introduce a new definition of ‘service provider’ into Division 2AA of Part V in proposed section 116ABA of the Act. This amendment broadens the people that are able to take advantage of the safe harbour scheme to include, in addition to carriage service providers:  

·          educational institutions, through their administering bodies, including universities, schools, technical colleges, training bodies and pre-schools;

·          libraries that either make their collection available to the public or are Parliamentary libraries, through their administering bodies;

·          archives, through their administering bodies, including the National Archives of Australia and specified state archives, galleries and museums;

·          key cultural institutions, through their administering bodies, including specific archives and libraries that are not open to the public; and

·          organisations assisting persons with a disability.

Subsection 116ABA(1) sets out the new kinds of bodies administering institutions and organisations that are included in the definition of service provider. These institutions and organisations are defined under the Act, with the addition of, or amendment to, these definitions to be made by the Copyright Amendment (Disability Access and Other Measures) Act 2017 .

Where a service provider, as defined in section 116ABA, undertakes the activities specified in sections 116AC to 116AF of the Act, and complies with the relevant conditions in section 116AH, that provider will be covered by the safe harbour scheme.

Paragraphs (1)(c) to (f) of section 116ABA refer to bodies administering the various institutions as, in some cases, the institutions themselves are not legal entities in their own right. It is these administering bodies that are covered by the scheme in Division 2AA of Part V of the Act.

Subsection 116ABA(2) clarifies that safe harbour protections will only apply to a body administering an educational institution, library, archive or key cultural institution to the extent the activities undertaken are relevant to those institutions. This will ensure that where the body administering the institutions has other functions unrelated to these institutions, those functions will not be covered by the safe harbour scheme.

For example, where the Crown in right of a State administers a school, it is a ‘body administering an educational institution’. However, the Crown in right of that State will only have safe harbour protection, when relying on that part of the definition of service provider, to the extent that an activity is carried out as part of the school’s functions (or another educational institution that it administers). In this example, it is not intended that the Crown would be covered for activities it undertakes for the purposes of developing or administering general education policy.

Paragraph 116ABA(2)(c) further clarifies, in line with subsection 10(3) of the Act, that if an educational institution is a body corporate, the body administering the educational institution is that body corporate. Therefore, it is unnecessary to reduce the breadth of the definition in relation to such entities.