Australia adds cloud to safe harbour copyright regime

[Len]

The government has agreed to make an addendum to the explanatory memorandum of its safe harbours extension to note the use of cloud service providers by the education, cultural, and disability sectors.

The Australian government has said it will expand the safe harbour regime under the Copyright Act to the educational, cultural, and disability sectors, including while such organisations use a cloud service provider.

The third reading of the Copyright Amendment (Service Providers) Bill 2017 was agreed to by the Senate on Thursday, but has yet to pass the House of Representatives.

The government had tabled its response to the Senate Environment and Communications Legislation Committee on Wednesday, noting the "ongoing entrenched and polarised views of stakeholders on safe harbour reform" as a reason for not supporting an extension of safe harbours to all carriage and service providers.

In its response, it rejected the Australian Greens dissenting recommendation that "service provider" be defined as "a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user's choosing".

However, the government supported in principle the Greens' suggestion that it clarify in the explanatory memorandum "the language related to activities that are carried out by a third-party provider 'on behalf' of an entity that is a 'service provider'".

"The addendum clarifies the government's intention that institutions that will come within the definition of 'service provider' in the Bill may engage third parties, such as cloud service providers, to carry out some or all of system and network activities on their behalf," the government response said.

"By doing so, that institution will retain safe harbour protection."

The government response also reiterated its intention to skip geoblocking reforms.

The Senate committee had in March advised extending the safe harbour regime, though it stopped short of adding all providers of online services including cloud computing services, search engines, and online bulletin boards.

The Department of Communications had outlined the government's approach to safe harbour reform as being "incremental" in that it will firstly extend it to educational, cultural, and disability organisations and institutions, and will then continue undertaking stakeholder consultation to "try and understand and unpick all of the issues around such a complex issue".

"Incremental reform also allows the government to develop conditions for safe harbours in synchrony with international developments to ensure that our scheme is effective and consistent with our international counterparts," the department said, with the recently revealed intellectual property chapter of the Trans-Pacific Partnership with its 11 remaining signatories (TPP 11) outlining a safe harbour regime.

According to the department, there was also "disputed evidence about how important safe harbour is to innovation" during the safe harbour consultation.

In its dissenting report, the Greens said its members "do not support the piecemeal manner in which the government are addressing the long-overdue updating of Australian copyright laws".

"We do not support the limited definition of 'service providers' used in this Bill, which excludes Australian tech companies and online content providers, stifling innovation and the ability of Australian tech companies to compete internationally," the Greens report said.

According to the Greens, the Bill does not solve issues such as risking copyright infringement by operating a search engine; removing digital locks from legally purchased ebooks so as to read them on different devices being illegal; not being able to copy DVDs to tablets; playing online videos in a presentation to a group being illegal; and comedians being able to use material in parody or satire but artists not.

The government is also currently consulting on implementing a fair use provision as part of its ongoing Copyright Act modernisation regime.

"By using digital technology, we can now create, distribute, and consume content faster and more easily than ever before. Our policies and laws need to keep up with these changes and continue to reflect the interests of copyright creators, users, and distributors," the Department of Communications said when launching the consultation paper.

The Australian government passed digital fair dealing for the Copyright Act in June last year, with the Copyright Amendment (Disability Access and Other Measures) Bill 2017 making provisions for access to copyright material by those with a disability, along with protecting educational facilities, key cultural institutions, libraries, and archives from copyright infringement.