What is the landscape of Australian copyright ‘safe harbors’?

Recent government reform has extended copyright safe harbor legislation. This has come after more than ten years of divisive debate, with both sides vocal in protecting their ideas. So does the landscape of Australian copyright ‘safe harbors’ currently favour free or fair use?

2017 saw online 'safe harbors' locked firmly in the crosshairs of industry debate. Whether Australia should move towards greater fair use for content creators or freer use for Internet platforms was a divisive subject in the intellectual property world, culminating in the Federal Government's decision to extend protection to certain sectors in December 2017.

What is the current landscape of Australian copyright? And just why is safe harbor protection so divisive?

Most online platforms are currently restricted by copyright with the kinds of content they can display.Most online platforms are currently restricted by copyright with the kinds of content they can display.

What are safe harbors in Australian copyright law?

Safe harbors were part of the 2005 Free Trade Agreement between Australia and the US. The deal stipulated Internet Service Providers (ISPs) should establish effective mechanisms enabling them to remove content from their platforms that infringe on copyrights. In exchange, these providers are protected from any legal liability on this infringement. However, a mistake in drafting the legislation meant only commercial ISPs, like Optus and Telstra, were protected, while content sharing platforms, such as YouTube, were left out.

This has been a cause of debate in the copyright industry over the last twelve years, with both sides hotly supporting changing the legislation.

The case for freer use

One of the primary cases for those in favour of allowing freer content use is content sharing platforms' inability to mitigate their risks. In an increasingly digital world, users uploading content to online platforms is an every-second occurrence. The issue facing community sharing platforms like Facebook is that they have no protection in Australia, meaning they are responsible for all the content uploaded and are liable if this infringes on an existing copyright.

Essentially, the argument boils down to a preference for a connected world in which content can be more easily shared by online communities. It also gives the education sector the chance to easily access otherwise costly information and data from content creators and researchers. 

Freer use would allow universities and other educational institutions easy access to display more information and research.Freer use would allow universities and other educational institutions easy access to display more informative content.

The case for fairer use

Those in favour of a policy that protects the creative rights of more industries is mostly made up of content creators who want fair royalties in exchange for an online platform using their work. This follows the logic that if more safe harbor protection was afforded to online platforms, content creators could see their work misused for others' financial gain.

Another aspect of the argument is the focus on external interests influencing local decisions. A campaign on Wikipedia Australia encouraging users to lobby for copyright change from their MP has been derided by members of the fairer use camp. They claim external interests like multinational technology companies and university groups are supporting this campaign solely because they stand to gain from no longer having to pay royalties for content.

No matter what side of the copyright debate you stand on, it helps to have the legal advice of a specialist intellectual property solicitor to inform your IP strategy. For a consultation, contact Alder IP today.