Publications >Is there a safe harbour for user generated content sites in Australia?

 

The aim of Australia's safe harbour scheme for copyright infringement as contained in Division 2AA of the Copyright Act 1968 (Cth) (Act) is to ensure that carriage service providers (CSP's) who take reasonable measures to limit and deter copyright infringement are able to attract the benefit of reduced liability for copyright infringement if they introduce certain policies and procedures.  Basically, the remedies available against online service providers are limited if they have complied with the conditions as contained in Division 2AA of the Act.

 

What is a carriage service provider?

 

Section 87 of the Telecommunications Act 1997 (Cth) provides that a CSP is a person that supplies or proposes to supply a listed carriage services to the public using a network unit owned by one of more carriers or a network unit in relation to which a nominated carrier declaration is in force.  Section 16 further defines a listed carriage services as a carriage services between a point in Australia and one or more points in Australia and a carriage service between a point in Australian and another point outside Australia.

It has been shown that this definition applies to Internet Service Providers (ISP's) however it is unclear whether websites providing user generated content (UGC) through the likes of Wiki's and social media sites would fall within this definition and therefore attract the benefits of the safe harbour provisions.

 

What steps must CSP's take to fall within the safe harbour scheme?

 

The steps that must be taken by CSP's to invoke the safe harbour provisions depend on the categories of infringing activity being conducted as follows:

 

	Category A activities are defined by Section 116AC as the provision of facilities or services for transmitting, routing or providing connections for copyright material, or the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections.
	Category B activities are defined by 116AD  involves the caching copyright material through an automatic process. The CSP  must not manually select the copyright material for caching.
	Category C activities are defined by 116AE as an activities that involve the storing, at the direction of a user, copyright material on a system or network controlled or operated by or for the CSP.
	A Category D activity is defined by 116AF  as referring users to an online location using information location tools or technology.

 

Applicability to Australian based UGC's and social networking sites

If the definition of CSP applied to UGC and social networking sites then their activities would most likely fall within category C and D and perhaps B.  It is therefore advisable that operators of Australian based UGC and social networking sites attempt to envoke the safe harbour provisions regardless of the uncertainty surrounding being defined as CSP's by attemping, (where possible) to comply with the conditions in section 116AH of the Act as follows:

 

	adopting and implementing a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers;
	complying with any applicable provisions of an industry code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material;
	not making substantive modifications to copyright material.  This does not apply to modifications made as part of a technical process;
	immediately removing or disabling access to copyright material residing on its system or network if the CSP becomes aware that the material is infringing; or
	becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing; or
	if it has been found to be infringing by a Court;

 

Limitations on relief available against compliant CSP's

 

Section 116AG of the Act provides that if a CSP has complied with the conditions in Subdivision D a court must not grant relied against a CSP that consists of:

 

	damages on account of profits; or
	additional damages; or
	other monetary relief

 

The reduced remedies that are available also depends on the category of activity being conducted by the CSP.

 

Future directions

 

On 14 July 2009, Mr Stephen Conroy, Minister for Broadband, Communications and the Digital Economy released a paper entitled "Australia’s Digital Economy: Future Directions", that sought, amongst other things consultation on whether the safe harbour provisions should be broadened to include UGC and social media sites.  Various submissions have been received both for and against the broadening of the safe harbour provisions.

Until it is certain that UGC and social networking sites are able to attract a safe harbour for copyright infringement, particular care should be taken when drafting and preparing terms and conditions applicable to these sites.

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances".

 

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