Response to the Proposed Reforms to the Copyright Act 1968 Film and TV Bodies Joint Submission
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1 Submission on Schedule 2 of the Exposure Draft of a Copyright Amendment (Disability Access and Other Measures) Bill 2016
Joint Submission 12 February 2016
2 Contents
page | 3 1 Introduction
1. The Australian Screen Association (ASA), the Australian Home Entertainment Distributors Association (AHEDA), the Motion Picture Distributors Association of Australia (MPDAA), the National Association of Cinema Operators (NACO), the Australian Independent Distributors Association (AIDA) and the Independent Cinemas Association of Australia (ICAA) (collectively, the Australian Film/TV Bodies), make this submission in response to Schedule 2 of the Exposure Draft of a Copyright Amendment (Disability Access and Other Measures) Bill 2016.
2. These associations represent a large cross-section of the film and television industry that contributed $5.8 billion to the Australian economy and supported an estimated 46,600 FTE workers in 2012-13:1
(a) The ASA represents the film and television content and distribution industry in Australia. Its core mission is to advance the business and art of filmmaking, increasing its enjoyment around the world and to support, protect and promote the safe and legal consumption of movie and TV content across all platforms. This is achieved through education, public awareness and research programs, to highlight to movie fans the importance and benefits of content protection. The ASA has operated in Australia since 2004 (and was previously known as the Australian Federation Against Copyright Theft). The ASA works on protecting and promoting the creative works of its members. Members include: Village Roadshow Limited; Motion Picture Association; Walt Disney Studios Motion Pictures Australia; Paramount Pictures Australia; Sony Pictures Releasing International Corporation; Twentieth Century Fox International; Universal International Films, Inc.; and Warner Bros. Pictures International, a division of Warner Bros. Pictures Inc.
(b) AHEDA represents the $1.1 billion Australian film and TV home entertainment industry covering both packaged goods (DVD and Blu-ray Discs) and digital content. AHEDA speaks and acts on behalf of its members on issues that affect the industry as a whole such as: intellectual property theft and enforcement; classification; media access; technology challenges; copyright; and media convergence. AHEDA currently has 13 members and associate members including all the major Hollywood film distribution companies through to wholly owned Australian companies such as Roadshow Entertainment, Madman Entertainment and Defiant Entertainment. Associate Members include Foxtel and Telstra.
(c) The MPDAA is a non-profit organisation formed in 1926 by a number of film distribution companies in order to promote the motion picture industry in Australia. It represents the interests of motion picture distributors before government, media and relevant organisations, providing policy and strategy guidance on issues such as classification, accessible cinema, copyright piracy education and enforcement and industry code of conduct. The MPDAA also acts as a central medium of screen-related information for members and affiliates, collecting and distributing film exhibition information relating to box office, admissions and admission prices, theatres, release details and censorship classifications. The MPDAA represents Fox Film Distributors, Paramount Pictures Australia, Sony Pictures Releasing, Universal Pictures International, Walt Disney Studios Motion Pictures Australia and Warner Bros.
(d) NACO is a national organisation established to act in the interests of all cinema operators. It hosts the Australian International Movie Convention on the Gold Coast, this year in its 71st year. NACO members include the major cinema exhibitors Amalgamated Holdings Ltd, Hoyts Cinemas Pty Ltd, Village Roadshow Ltd, as well as the prominent independent exhibitors Dendy Cinemas, Grand Cinemas, Ace Cinemas, Nova Cinemas, Cineplex, Wallis Cinemas and other independent cinema owners which together represent over 1400 cinema screens.
(e) AIDA is a not-for-profit association representing independent film distributors in Australia, being
1 Access Economics, Economic Contribution of the Film and Television Industry (February 2015) Access Economics Pty Limited
(f) ICAA develops, supports and represents the interests of independent cinemas and their affiliates across Australia. ICAA’s members range from single screens in rural areas through to metropolitan multiplex circuits. ICAA’s members are located in every state and territory in Australia representing nearly 500 screens across 110 cinema locations.
3. All of the Australian Film/TV Bodies and their members have a vital interest in a strong and effective protection of their copyright assets in Australia and the ability to enforce their copyright against threats of infringement, particularly online infringement. Online copyright infringement presents one of the biggest challenges to the film and television industry’s participation in the Australian digital economy, and its contribution to the broader Australian economy. It is also preventing legitimate online business models for the distribution of films and television programs from reaching their full potential.
2 Executive summary
4. The Australian Film/TV Bodies oppose the piecemeal expansion of the safe harbour provisions proposed by the changes to the definition of “service provider” in Schedule 2 of the Exposure Draft of a Copyright Amendment (Disability Access and Other Measures) Bill 2016 (the Bill). The proposed amendments to the safe harbour provisions in the Bill do not follow any comprehensive review of the operation of the provisions or consideration of their suitability in the online environment in 2016.
5. This is not the time for the Australian Government to take any steps to weaken Australia’s existing copyright laws, particularly when the calls for amendments are made without evidence to support them and where the consequences of amendments have not been thoroughly thought through. Expanding the definition of safe harbours would effectively provide immunity from relief to an uncertain class of unregulated providers without concomitant obligations to prevent online infringement. There is a significant risk that some non-ISP service providers will treat the expansion of the safe harbours to them as providing an excuse for refusing to take action against infringements that they could have taken steps towards preventing from occurring. Worse, the ill-advised expansion could be relied on by some providers to try to protect the profits they made from infringement that they intentionally facilitated.
6. By way of background, the safe harbour provisions of Div 2AA of the Copyright Act provide a limited defence to monetary claims and non-monetary relief against an ISP following a finding that the ISP is liable for authorisation of copyright infringement. The provisions have not been amended since their introduction with effect from 1 January 2005.2 The safe harbour scheme was implemented by the Australian Government with the clear policy objective of protecting Australian ISPs from the infringement of copyright by authorisation because of their passive role in online communications. The provisions have been judicially considered twice by Australian Courts and, in both instances, the ISPs in question were found not to have met the requirements to qualify for protection under the scheme.3
7. The history of the provisions is important. The safe harbours were implemented as part of a package of provisions to give effect to Australia’s obligations under the Australia-US Free Trade Agreement (AUSFTA). Australia did not implement a scheme in identical terms to the safe harbour scheme under the Digital Millennium Copyright Act (DMCA). Instead, it implemented a scheme considered to be appropriate for domestic Australian law, in recognition of differences between Australian and US copyright law that existed at the time and remain to this day. The Bill does not provide any package of amendments to go with the proposal to expand the definition of service provider to ensure that the safe harbours remain fit for purpose under Australian law.
2 Part V Division 2AA of the Copyright Act 1968 (Cth). 3 Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23. page | 5 8. Australia is not required to expand the definition of service provider to comply with the AUSFTA. There is no suggestion (nor can there be) that the absence of a wider definition of service provider undermines Australia’s compliance with the AUSFTA. The definition of service provider was always left to the treaty parties to determine under the domestic law of each country. This discretion was necessary given the differences between US and Australian copyright laws. These differences were reflected in the fact that the safe harbour scheme implemented under Australian law did not literally follow the form of the corresponding safe harbour scheme under US law. The existing differences between the safe harbours under Div 2AA and under the US DMCA will continue, whether or not the definition of safe harbours is expanded and the operation in each country will remain different.
9. The Australian Government has already conducted three previous reviews of the safe harbour scheme – in 2009, 2011 and 2014 – and each time has not identified any specific need for change to the definition of service provider in Div 2AA. There has been no change in circumstances since the earlier reviews in 2009, 2011 and 2014 that would provide a justification for changing the definition of service provider at this time. There is no evidence that the existing scheme hinders legitimate online commerce or activity in Australia by service providers that are not currently able to invoke the safe harbour scheme. Arguments to the contrary are theoretical and unpersuasive when compared with available evidence and the expansion of operations of non-ISP service providers in Australia. None of the proponents of expansion of the scheme beyond ISPs can identify a single legitimate service that has been unable to operate in Australia under the current safe harbour regime.
10. By contrast, the evidence in favour of retaining the current limited application of the safe harbour provisions is compelling. As the Australian Government well understands, innovation flourishes when investment can be made against the backdrop of strong and predictable laws. The list of innovative online platforms that have successfully launched in Australia with the current safe harbour regime in place is extensive and growing. The evidence of commercial activity would indicate that the existing safe harbour regime has provided certainty for licensing models that has allowed these businesses to flourish in Australia. International digital media platforms like Netflix perform well in Australia precisely because we have robust copyright laws.4 Content owners have had the confidence to launch $100 million plus film productions in Australia first, before the US and the UK. The Australian Government cannot have any confidence that the current incentives for development of new platforms will remain after the amendments proposed in the Bill and there is no cost/benefit analysis of the proposed laws reported in in the Explanatory Memorandum (the EM) accompanying the Bill.
11. It would be contrary to the Australian Government’s policy of providing a robust and effective system of copyright protection in Australia to allow other online service providers, that are not subject to the same regulatory supervision as ISPs, to have the benefit of safe harbours. The proposed amendment would operate indiscriminately across any business that has online operations within Categories A to D of Div 2AA. The business models of online services providers are diverse and their operations require analysis before embarking on blanket changes to the scheme which applies to all. While many are legitimate, there are others that opportunistically seek to profit from trade in copyright material without paying, or ever intending to pay, owners and creators for such uses. A comprehensive assessment of the consequences of the amendments does not appear to have been undertaken and no results of any assessment have been disclosed by the Australian Government. The lack of transparency around the process leading to the Bill is concerning.
12. The amendments in the Bill are also not fit for purpose. Given that the whole purpose of the safe harbour scheme is to create incentives for ISPs to take steps to minimise copyright infringement, widening the definition of service provider to online operators who can exercise control over use of copyright material and where they profit from the misuse of copyright material by Internet users will do nothing to minimise infringement. These entities should be held responsible for their acts of infringement because of their capacity to prevent infringement, rather than being offered a defence to infringe and an exemption from the financial consequences of facilitating infringement on their service. Financial consequences from infringement are both an important deterrent and a just response to holding these operators accountable for their actions. There is no policy justification for immunising 4 McDuling, John, 2015 ‘What Netflix’s meteoric rise means for Australia’ 17 July 2015. Available from
13. The Australian Film/TV Bodies urge the Australian Government not to embark on change of one aspect of the safe harbours - the definition of service provider - without examining, and amending, a range of other aspects of the scheme not addressed in the Bill. Any amendments to the safe harbours need to go further to ensure that an appropriate balance is struck between the benefits of the regime and the corresponding obligations of parties seeking its protection. With two instances already considered by the Courts (Cooper and Roadshow v iiNet),6 the Australian Government has the information that would inform a comprehensive revision to the safe harbour scheme, if it chose to use it. By focussing on a singular issue around definition of service provider, it will miss the opportunity to bring the safe harbour regime up to date to ensure that it is fit for purpose in the next decade. Section 6 of this submission sets out the broader changes that should be made to the Copyright Act if the Government proceeds with the amendments in the Bill.
14. There are unresolved problems with the proposed amendment that are not addressed in the Bill or considered in the EM. The Bill fails to address how a wider class of service providers would be required to meet Australian regulatory laws. What would the practical steps have to be for them to meet the requirements met by ISPs? What type of systems would they need to have in place? There are no answers to these questions in the Bill or the accompanying EM. The Australian Film/TV Bodies identify a range of other amendments that should be made to Div 2AA if the Australian Government is determined to expand the safe harbour scheme in 2016. Amendments would need to include revisions to authorisation law, submission of non-ISP service providers to the Industry Code currently intended to apply to ISPs and updating the conditions required to be satisfied for safe harbour protection.
3 The history of the safe harbours under Div 2AA
15. Any assessment of the appropriateness of extending the definition of service provider under Div 2AA requires an understanding of the history of the safe harbour provisions in Australia. This history reveals that the provisions were introduced solely in response to Australia’s entry into the AUSFTA and not as a result of any comprehensive review of Australian copyright laws or any decision of an Australian Court regarding authorisation that was considered controversial.
16. Article 17.11.29 of the AUSFTA required (and still requires) each party to include legal incentives in their respective domestic legislation that would encourage service providers to cooperate with copyright owners in deterring the unauthorised storage and transmission of copyright protected materials.7 This overriding policy objective was pivotal in providing a justification for offering service providers a defence that limited the consequences of a finding of infringement by authorisation. Without having in place real and effective incentives, a scheme that limited the liability of service providers would lack fairness or balance at best and at worst could create incentives for misconduct by them in the knowledge that the downside risk of infringement was minimal.
5 We would note here that, conversely, search engines were expressly excluded from being subject to orders under the recently- enacted section 115A, which provides a remedy requiring ISPs to disable access to primarily infringing websites. Since search engines profit off the algorithm through which they rank websites, whose popularity is often directly related to the provision of infringing materials (i.e., many infringing sites enjoy higher popularity rankings as measured by services like Alexa precisely because they lure end-users with infringing content), widening/recalibrating the safe harbours, without also considering recalibrating the recently-enacted site-blocking provision to include search engines, given search’s role in infringement, would also upset the careful and delicate balance the Parliament has achieved to date. 6 See paragraph By way of background, the safe harbour provisions of Div 2AA of the Copyright Act provide a limited defence to monetary claims and non-monetary relief against an ISP following a finding that the ISP is liable for authorisation of copyright infringement. The provisions have not been amended since their introduction with effect from 1 January 2005.2 The safe harbour scheme was implemented by the Australian Government with the clear policy objective of protecting Australian ISPs from the infringement of copyright by authorisation because of their passive role in online communications. The provisions have been judicially considered twice by Australian Courts and, in both instances, the ISPs in question were found not to have met the requirements to qualify for protection under the scheme.3 above. 7 For the full text of Article 17.29:
18. This was a considered policy position, following widespread consultation within the industries affected by the safe harbour scheme. It reflected an assessment by the Australian Government, (that was appropriate then as it is now) that entities that would be given the benefit of the safe harbours under Australian copyright law in return for their cooperation in preventing online infringement. These entities were already subject to regulation under Australian law and were required to submit to the Australian jurisdiction in various ways, thereby ensuring that there were effective sanctions against misconduct. For example, the qualification of a service provider depended on them fitting the definition under section 87 of the Telecommunications Act. Those entities are required to satisfy a range of substantive legal and operational requirements in order to maintain that designation. They were also required to submit to regulations that were in the public interest and promoted transparency. An example was the requirement under s128 of the Telecommunications (Consumer Protection and Service Standards) Act 1999, that they must enter into a Telecommunications Industry Ombudsman (TIO) scheme that is published and searchable by members of the public.8 These regulatory requirements are as valid today as they were in 2005.
19. There is no suggestion that the current definition of service provider puts Australia at risk of breaching its obligations under the AUSFTA or that Australia is obliged to adopt a wider definition of service provider in order to be fully compliant with the AUSFTA.9 The AUSFTA allows for a degree of variation in the safe harbour scheme between the two countries. This is an important principle in understanding the policy framework of the AUSFTA. Australia was not required to implement a safe harbour scheme in terms identical to the safe harbour provisions of the US DMCA. The differences in the implementation of the safe harbours in Australia and in the US is not a valid justification for any amendments to the Australian regime, and certainly not for the limited amendments as proposed in the Bill.
20. If this justification was accurate, then Australia should implement an administrative subpoena procedure to identify infringers. The safe harbour provisions under Div 2AA differ from the safe harbours provisions of the DMCA, in a number of ways unrelated to the definition of service provider. One significant example is the administrative subpoena scheme available to copyright owners under the US safe harbours to facilitate the expeditious access to contact details of a subscriber suspected of engaging in copyright infringement without having to commence substantive proceedings to do so.10 The subpoena process was a key element in the balance struck by legislators between the rights of copyright owners and the rights of service providers and is integral to the safe harbour framework. It generally provides a cost-effective self-help mechanism for rightsholders to seek to identify online infringers and deal with them expeditiously, without the need to commence substantive proceedings. It is also subject to limited conditions: a rights holder is not required to pay a fee as a form of security before exercising their rights to use the procedure (other than to the Court issuing the subpoena) or provide an indemnity for the ISPs costs involved in disclosing a subscriber’s details.
8 See
4 Fundamental differences between Australian and US law
22. If the history of the safe harbour provisions under Div 2AA, and the terms of the AUSFTA, do not justify expansion of the safe harbours to other service providers, can the expansion be justified to harmonise the legal environment for the benefit of service providers and rightsholders alike? This is an argument that has been made in support of expansion in the past.
23. The answer is no. There are fundamental differences between Australian and US copyright law, and their application to conduct of service providers, that will be unchanged even if the definition of service provider is expanded as proposed in the Bill. These differences need to be taken into account in any assessment of the impact of changes to the definition of service provider to ensure that intended policy objectives are likely to be achieved in practice in Australia.
24. Some of the more important differences between the copyright law of both countries include:
a) There is no direct equivalent in US law of “authorisation” under s101 of the Australian Copyright Act. The US copyright concepts of “contributory” and “vicarious” infringement are not the same as authorisation, as Australian Courts have identified.13 Nor are the mandatory statutory factors required to be taken into account by a Court under s101(1A) of the Australian Copyright Act present under US copyright law. Since reliance on the safe harbours is only triggered by a finding of infringement by authorisation, the circumstances in which the safe harbours will be triggered under Australian law will necessarily differ from those under US law.
b) US copyright law does not have an equivalent to the defence under s112E. Unlike the safe harbours of either Div 2AA or the DMCA, s112E is a complete defence to infringement by authorisation and is not tied to any countervailing obligations on the part of the provider to take steps to assist in enforcement. This defence is not limited to carriage service providers.14 Any assessment of the relative need for expansion of the safe harbour provisions needs to take into account the benefit that s112E currently provides to all forms of service provider in Australia. The defence is available to any provider that provides facilities (including physical facilities, software and services) on which infringement occurs, regardless of whether it is an ISP or not.
25. The above fundamental differences between Australian and US law illustrate the fallacy of the Australian Government pursuing an expansion of the definition of service provider under Div 2AA in the belief that it will promote harmonisation between the US and Australian legal environment facing service providers or that the interpretation and application of the safe harbours under Div 2AA and under the DMCA will produce similar results. Irrespective of the definition of safe harbour implemented in Australia, the differences between the copyright laws of Australia and the US of the kind identified above are likely to continue to produce very different results and are likely to more significant drivers of different results than the service provider definition.
11 “Each Party shall provide for an administrative or judicial procedure enabling copyright owners who have given effective notification of claimed infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.” 12 Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 (7 April 2015). 13 Most recently by the High Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (20 April 2012). 14 In Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 at 395, Judge Wilcox held that the “qualifying elements” of s112E applied to Sharman, although his Honour subsequently found that there were other factors that disqualified Sharman from reliance on the section. page | 9 5 The Bill is inconsistent with Australian copyright policy
26. When viewed against the background of the existing copyright law in Australia, the amendments proposed in the Bill are not consistent with the approach taken in the last 15 years to copyright reform.
27. Australia is a market leader in online copyright law and, in some respects, ahead of the US in terms of copyright law reform. Australia was one of the first countries to modernise its copyright laws in the face of the developing Internet. In 2000, after an extensive review of copyright law in Australia, involving consultation with industries and the public, Parliamentary committee investigation and bi-partisan support for the package of reforms, the Australian government introduced what were known as the Digital Agenda copyright reforms.15
28. The reforms substantially revised the manner in which copyright material was protected in the digital environment. The Explanatory Memorandum of the time observed that “The development of new communications technologies has exposed gaps in the protection afforded by the Copyright Act 1968” and that “owners of copyright do not have fully effective rights in relation to the Internet, thus making it difficult for them to obtain appropriate redress or remuneration for use of their material on the Internet.” 16
29. The Attorney-General (Darryl Williams) described the package in his second reading speech as:
“The amendments provided by this bill are at the cutting edge of online copyright reform and clearly place Australia among the leaders in international developments in the area…. This bill will update Australian copyright law for the 21st century and its passage will be a key milestone in the successful development of our information economy.”
30. More recently, the Australian Government has taken a leading role in enhancing the protections for creators and owners of copyright with two important initiatives. The first initiative involved the development and negotiation of the Copyright Notice Scheme Code between ISPs and rightsholders lodged with ACMA (Industry Code). The second initiative involved the passing of the Copyright Amendment (Online Infringement) Bill 2015, introducing a new section 115A to enable copyright owners to approach the Federal Court seeking an order that an ISP block access to a site with the primary purpose of infringing or facilitating the infringement of copyright. The latter initiative brought Australia into line with the United Kingdom and European countries where site blocking orders have been successfully in force for a number of years. There has not been sufficient time to assess the impact of these initiatives on copyright infringement and enforcement by rights holders in Australia.
31. In each of the above examples, the Australian Government has undertaken (or appointed an organisation to undertake) a comprehensive evidence-based review of the existing law, has consulted broadly and transparently, identified and addressed all potential impacts with a balanced approach and provided a clear explanation of the proposed amendments. The same approach does not appear to have been taken in relation to the issue of expansion of the safe harbours. It would have been particularly appropriate given the three previous reviews by the Australian Government that concluded that an expansion of the safe harbours was not appropriate.
32. This is not the time for the Australian Government to take any steps to weaken Australia’s existing copyright laws, particularly not when the calls for amendments are made without evidence to support them and where the consequences of amendments have not been thoroughly thought through. The Australian Government should undertake a comprehensive assessment of the likely effect of the amendment. It is not too late to do so. It is a necessary and appropriate step given that expanding the definition of safe harbours effectively provides immunity from relief owners to an uncertain class of
15 As to the process involved in developing the policy see Hansard 26.6.2000, p18341: “There has been detailed advice by committees of experts. This process was started under the Labor government but, in fairness to this government, carried through ongoing public consultation procedures. Ultimately after the bill itself has been tabled, there has been further consideration by a parliamentary committee. When you have the procedures rights, you are more likely to get the policy right”. 16 The EM observed that “The development of new communications technologies has exposed gaps in the protection afforded by the Copyright Act 1968” and that “owners of copyright do not have fully effective rights in relation to the Internet, thus making it difficult for them to obtain appropriate redress or remuneration for use of their material on the Internet.” EM p5. page | 10 unregulated providers without obligations to prevent online infringement. There is a significant risk that some non-ISP service providers will treat the expansion of the safe harbours to them as minimising their downside risk of having to reduce the various risks related to infringement, including compensating rightsholders for infringements that could have taken steps towards preventing from occurring. It could be relied on by some providers to try to protect the profits they made from infringement that they intentionally facilitated.
33. Non-ISP service providers may have significant control over online infringement, including because there are significant tools available to them to reduce or prevent infringement that occurs through the use of their services and on their platforms. For example, recent research on the role search engines can play in online infringement found that not only are users more likely to infringe when links to infringing content are promoted in search results, but even users with a preference for infringing content are often diverted to legal sources when legal platforms are ranked highly in search engine results.17 They can and should be subject to obligations to prevent infringement, to the extent that they can, if they are given the benefit of the safe harbour defence. Providers of services that fall within all categories under the safe harbours (Categories A to D) necessarily exercise control, to different degrees, over the activities of their users in order to qualify for the safe harbours. Calls for the extension of safe harbours to them must involve recognition of their capacity to control user activity, to some extent, and should be accompanied by clear obligations when they exercise that control.
34. A more refined approach to a wider class of service providers the current scheme is also required to ensure that the safe harbours are workable in practice. For example, a service provider that invokes the safe harbours would become subject to the requirement to “adopt and implement a policy of terminating the accounts of repeat infringers, in appropriate circumstances” (s116AH, Item 1); the take down regime that applies in respect of Category D activities (if applicable to their service); and the ability of a court to order termination of a subscriber account or disabling of access to the linked content even if the safe harbour applied. Any non-ISP service provider seeking to rely on safe harbours (even if the definition is expanded) necessarily has to be ready and willing to exercise some control over what its users are doing. How this will occur in practice is not clear from the Bill or the EM.
35. Unless these additional steps in the legislative review process are taken, there is likely to be considerable uncertainty that could lead to avoidable disputes and litigation. For example, there have been attempts in the past by an ISP to adopt a policy under the safe harbour scheme (s116AH) that unilaterally imposes a pre-requisite fee on any rights holder which notifies the ISP of infringements before it is prepared to take any action as stipulated under s116AH. While this is contrary to the terms of the Act (and Australia’s obligations under the AUSFTA) and will disqualify that ISP from safe harbour protection, it is the type of precedent that could be exploited by a wider class of services providers, such as cyberlockers and other content-hosting platforms, if the safe harbour scheme were extended to them.
6 Conclusion
36. If the Australian Government proceeds with the amendments in the Bill, it should only do so along with a range of other amendments to the Copyright Act that will militate against the adverse consequences identified above. They would include:
a) Amending the authorisation provisions under s101 and 101(1A) and related civil enforcement provisions. The weaknesses with the application of authorisation principles (and the defence under s112E) to certain forms of online infringements following the iiNet decision were identified in numerous submissions made in response to the Online Copyright Infringement Discussion Paper in 2015. These weaknesses cannot continue to be ignored without eroding the effectiveness of Australian copyright laws. These weaknesses will be magnified in any expansion of the service provider definition. (The current weakness in authorisation law means that the safe harbours may not need to be invoked by non-ISP service providers, even under an expanded definition of service 17 Sivan, Smith and Telang, ‘Do Search Engines Influence Media Piracy? Evidence from a Randomised Field Study”, September 2014, available at http://ssrn.com/abstract=2495591. page | 11 provider.) Amendment to enforcement provisions such as s115(5) would also be appropriate given some recent judicial comments.
b) Imposing an obligation to comply with the Industry Code on non-ISP service providers. Although the Australian Government places reliance on the Industry Code to address the shortcomings of authorisation law, non-ISP service providers would not be subject to its operation (because they are not subject to the requirements of the Telecommunications Act once ACMA registers the Industry Code). Without responsibility for compliance with the Industry Code, non-ISP service providers would not be required to assist rights holders to issue notices to Internet users suspecting of engaging in infringement in the way that ISPs will be required by the Industry Code. This could be effected by implementing the Industry Code under Div 2AA (with such minor amendments as are appropriate) by Copyright Regulation. The machinery for introduction of an industry code by regulation is already present in Div 2AA.
c) Amending and clarifying steps that non-ISP services providers are required to take to prevent infringement as a condition of obtaining the benefit of the safe harbours. It should examine amendments that could be made to the conditions under the safe harbours, including the condition requiring a beneficiary of the safe harbour to implement a policy of terminating repeat infringers (under s116AH, Item 1). The nature of that obligation must reflect the nature of the service provider claiming the benefit of the safe harbour, and any expansion of potential beneficiaries must include an implementation of the obligation – included in the AUSFTA – requiring termination of accounts and other remedial steps as appropriate to the types of service providers that will now have the benefit of the safe harbours. They could also be introduced by a combination of amendment to Div 2AA and by way of Copyright Regulation.
d) Amending Div 2AA to implement an administrative subpoena procedure. The Australian Film/TV Bodies have raised the absence of this procedure in the Australian safe harbours numerous times (including during the last consultation in October 2012) and identified the weaknesses of reliance on the existing procedure under Div 7.3 of the Federal Court Rules. The recent Dallas Buyers case illustrates the limitations of an application made under Div 7.3 in practice to address suspected online copyright infringement. Initially a judge of the Federal Court granted the relief of preliminary discovery, subject to limited conditions.18 The judge subsequently delivered a ruling that imposed new conditions, including the (unprecedented) posting of a sizable monetary bond before letters could be issued to the subscribers.19 Finally, the judge dismissed the application entirely when the copyright owner was unwilling to post the bond with the Court and to limit its claims for compensation.20 The whole process took almost a year to complete, caused significant expense to all parties and resulted in no relief to the copyright owners, despite instances of clear infringement. It would be avoided by implantation of the DMCA-style administrative subpoena process.
e) Enhancing law enforcement responses to online copyright infringement in Australia. Despite the Copyright Act having a range of copyright crimes available to use regarding online infringement, the current funding and low prioritisation of online IP crimes, including copyright infringement, by law enforcement agencies is completely inadequate. Over the last decade IP crimes have been continually deprioritised and investigations are rare (prosecutions even rarer). Coordination between law enforcement and industry has all but fallen into disrepair in Australia. As a result Australia is now substantially out of step with the practices and resourcing of law enforcement for online IP crime in the US, UK and the European Community. As online criminal activity becomes more sophisticated, the gap between the laws and the ability to enforce them will continue to widen, at the expense of creators and copyright owners. There is a risk that international criminal enterprises will seek to exploit the lower risks of prosecution in Australia by bringing their activities here away from jurisdictions where there is a higher risk of criminal prosecution. With the perceived financial immunity from civil proceedings that non-ISP service providers will enjoy if the safe harbour definition is expanded, an effective, properly funded and prioritised law enforcement initiative will be critical.
18 Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 (7 April 2015). 19 Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 (6 May 2015). 20 Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838 (14 August 2015). page | 12 37. The Australia Film/TV Bodies appreciate the opportunity to provide the above comments on the draft provisions and are available to provide further clarification and/or information if necessary, including more detail on the other amendments that should be made to the Copyright Act identified above.
7 Support for revision of broadcast exception for educational use
38. The Australian Film/TV Bodies recognise that proposed section 113P(2) as currently drafted widens the scope of the broadcast exception for educational use. We support the position taken in the joint submission from Screenrights, the Copyright Agency, Universities Australia, and the Schools and TAFE Copyright Advisory Group to narrow this exception as was originally intended.
12 February 2016
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