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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.
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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
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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.
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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.
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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,
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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.
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