Authorisation in context: Potential consequences of the proposed amendments to Australian secondary liability law
This report, commissioned by the Australian Digital Alliance, discusses the Australian Government proposed amendments to the Copyright Act 1968 which seek to broaden the circumstances in which an organisation or individual may be liable for someone else’s copyright infringement. Although the Government’s proposed amendment appears to be squarely aimed at ISPs, the amendments would apply with equal force to any other person who provides goods or services which may be put to infringing use. This includes all organisations which provide internet access to the public (including government bodies, libraries, schools and universities), online platforms which enable users to upload and display images and videos (such as eBay, Facebook and YouTube), providers of remote or ‘cloud’ storage (including commercial businesses like Dropbox, Microsoft and Google, as well as schools and universities), organisations which loan out or make available copyrighted content (libraries and video stores) and businesses which make and sell everyday consumer technologies like CDs, CD/DVD burners, USB keys, hard drives, digital video recorders and photocopiers.
The report sets out the existing law in its historical and global contexts, and, on the basis of extensive consultations with representatives from universities, schools, libraries and the technology sector, explores the legal and practical implications of the proposed changes for Australian intermediaries. It finds that:
- the proposed expansion of liability would potentially have significant deleterious effects for Australian institutions;
- the existing Australian law is already as broad as or broader than those of its counterparts overseas (and fully compliant with its international obligations);
- the proposal would use a ‘one size’ fits all approach contrary to a century of authority emphasising the necessity of determining liability with reference to all of the facts of each case;
- it would give copyright owners considerably broader rights against Australian individuals and institutions than those suffering economic loss because of torts committed in other contexts (without any justification of why they should receive such special treatment);
- the proposed amendments would likely result in persistent rightholder lobbying for new regulations that go further and do more, perpetuating uncertainty about the scope of intermediaries’ obligations and liability;
- it would oblige greater reliance on ‘safe harbours’, driving increased account terminations;
- the increased costs and uncertainty would make Australia less competitive and a less attractive place for investment; and
- there has been no clear analysis about the benefits likely to be obtained in exchange for these costs.