Safe harbour delay divides sector

James Riley
Editorial Director

The government has deferred deciding on the more controversial elements of copyright reform in favour of more consultation as the tech and startup sectors demand they get on with it.

The government last month tabled its long-awaited response to the Productivity Commission’s 2016 report on Australia’s copyright regime.

The government agreed with many of the Productivity Commission’s recommendations, but skipped past some of the more contentious aspects, including ‘fair use exceptions’ and an extension of the safe harbour scheme.

Nicole Buskiewicz: ‘For Australia’s innovators to compete globally, safe harbours must be expanded …’

The failure to take decisive action has angered some of the most powerful members of the tech community, which have been calling for copyright reform for years now, in opposition to the larger copyright holders and entertainment groups in Australia.

Tech giants have lead the campaign for copyright reform in Australia. Industry lobby DIGI, which includes representatives from Facebook, Google, Microsoft, Twitter and Yahoo, said the government’s response “continues to delay urgent reform to Australia’s copyright laws”.

“In order for Australia’s innovators to compete on a global scale, safe harbours must be expanded to cover all online platforms and services, and a fair use exception should be adopted. Digi urges the government to take decisive action and end the uncertainty,” DIGI managing director Nicole Buskiewicz told

Smaller tech companies and startups have also joined the cause, with StartupAUS planning a big campaign to lobby Canberra to begin legislating some of these copyright changes, rather than continue to consult.

“This is an important area of reform for Australia if we want to unlock the potential of emerging digital businesses and provide an effective mechanism for protecting the rights of copyright holders,” StartupAus chief executive Alex McCauley told

“This is just the latest in a string of reviews that have recommended this sort of reform over the years, and it’s now time to act,” he said.

The Productivity Commission recommended in its report last year that the government accept and implement a fair use exception in Australia.

Fair use allows for the use of copyrighted material without permission as long as it doesn’t harm the market of the original material. In Australia, the fair use exception currently only applies for research, study, parody or reporting.

Wikipedia launched a campaign for changes to the fair use exception earlier this year, arguing that its own platform would break the current laws if it were hosted in Australia.

The Productivity Commission’s report found that implementing wider fair use in Australia would help to return fairness to “innovative firms, universities and schools” that bear the costs of the current arrangement.

“Fair use would allow Australia’s copyright arrangements to adapt to new circumstances, technologies and uses over time. The opportunities Australian businesses and consumers forgo because of the current inflexible exceptions are much more extensive,” its report said.

But the government merely “noted” this in its response and signalled further industry consultation on the matter.

“There are arguments that Australia’s current exceptions for fair dealing are restrictive when compared with international counterparts and may not permit some reasonable fair uses of copyrighted material. However, this is a complex issue and there are different approaches available to address it,” the government said in the response.

Government will conduct more public consultations on “more flexible copyright exceptions” in early 2018.

“This timeframe will provide adequate time to properly consider the complexities of possible changes, and gather more detailed information on the regulatory impact of any changes,” the government said in its response.

The response has been welcomed by the Copyright Agency, which has argued that fair use would be damaging for the Australian creative industry.

“The introduction of fair use would have seriously undermined Australian writers, journalists, film and television-makers and artists, as well as the great companies that invest in Australian creativity,” Copyright Agency CEO Adam Suckling said.

“The government has said there are different approaches available to address this complex issue and it will publicly consult on more flexible copyright exceptions,” he said.

The response was more positive toward the Productivity Commission’s recommendation that the safe harbour scheme be expanded to include online service providers, not just carriage service providers.

The government said it “supports in principle” this recommendation, but would defer making a legislative change until further consultation is undertaken.

“The government recognises the limitations of the safe harbour scheme being restricted to only carriage service providers. The government is undertaking additional consultation on the safe harbour scheme before considering whether to introduce amendments to the Parliament,” it said.

“This additional consultation will ensure our safe harbour scheme will encourage growth in Australia’s digital economy and ensure a thriving and vibrant creative sector, whilst respecting the interests of copyright holders.”

There have been nine public consultations on copyright reform since 2004, with the last six recommending that safe harbours be expanded widely.

The safe harbour scheme gives legal protection to a service hosting copyright infringing content as long as it is removed quickly after they are notified. In Australia, this protection is currently only offered to telcos and internet providers.

Earlier this year the government actually included an expansion of the safe harbour provision in a copyright amendment bill, but removed it at the last minute following extensive lobbying efforts by copyright holders in a “move of cowardice” according to the Opposition.

The extension of the safe harbour regime is strongly supported by the tech and startup communities, and would most benefit user-generated content hosting platforms like Redbubble.

RedBubble founder and CEO Martin Hosking has previously threatened to move Redbubble overseas if no copyright reforms are made. Redbubble regularly faces lawsuits over copyright infringing content that is posted by users on its market platform.

Mr Hosking said local tech companies are at a big disadvantage without this expanded regime.

“At the moment no service provider in Australia that provides a platform for user generated content has legislative protection,” Mr Hosking told

“This has opened the way for vexatious legislation and without reform could lead to the departures of companies such as Redbubble from Australia. Clearly this must be addressed, as it was in earlier age to deal with telcos.”

The government needs to act now instead of consulting further to ensure Australia remains competitive globally, he said.

“Every other country in the OECD has already modernised their laws. As a consequence they have been able to leap ahead of Australia. Consumers have access to more content, their digital economies thrive and the rights of copyright holders are protected and clearly identifiable.”

“At a time when our political and business leaders are calling for more innovation and recognise the importance of this, if we are to maintain Australian lifestyles, it is imperative that we embrace regulatory reform.

“The Productivity Commission recognised this and now it is incumbent on all political leaders to embrace the reforms suggested. The government’s response is a welcome next step, but let’s get a bit more urgent about this and get on with it.” Mr Hosking said.

On the other side of the argument, copyright holder groups have welcomed the government’s response to the report.

“Copyright plays a critical role in driving investment in the cultural and innovative life of our nation,” the Copyright Agency’s Adam Suckling said.

“We welcome the government’s recognition that it is critical to have in place a copyright regime that supports Australian creators and innovators, encourages ongoing investment in creativity and the telling of Australian stories.”

Do you know more? Contact James Riley via Email.

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