I hadn’t mentioned this, because it seemed to me so much less important than other current government reviews (on TPMs and copyright exceptions), but Attorney-General’s are running yet another simultaneous review: this one of the appropriate scope of the ISP safe harbour provisions brought in with the FTA Amendments last year. I wasn’t going to blog about this, because it’s pretty clear that AGs do not think it requries wide comment. But now Warwick Rothnie has commentary here, I’ll just note it in passing.

When the government introduced the safe harbour provisions (Part V Div 2AA of the Copyright Act) it limited the benefit of those safe harbours to ‘carriage service providers’ as defined in the Telecommunications Act. This was pretty weird at the time, because in other countries, including the US, the safe harbours are not so limited – they can be used by online ‘service providers’ generally. The effect was to cut institutions like Universities out from relying on the safe harbour provisions.

They now look like expanding the safe harbours, and it looks like they are having a bit of a review to make sure they’re not missing something important. As far as I can see, there is no real reason why the safe harbours should not be explicitly extended to make sure they cover people other than just official carriage service providers.

If there is something interesting in the review, it is the question of how you expand the safe harbours: do you:

  1. expand it to ‘service providers’ generally, or
  2. do you allow the Minister to designate people who can have the benefit of the safe harbour?

My own preliminary view would be that surely the reference should be to service providers (like the US) – for the sake of technology neutrality. Why require pre-designation as a CSP? Why give the power to designate to anyone? Although arguably one of the benefits of ‘prior designation’ as a CSP is certainty. Perhaps, on reflection, the best approach is a two part one:

  1. give the Minister the power to designate some people as carriage service providers with the benefit of the safe harbours, but
  2. allow the safe harbours to apply to ‘service providers’ more generally as well – so that those without the foresight to apply for pre-designation can argue they are covered if need be.

That would allow people like search engines to argue that they have the benefit of the safe harbours without having to make application.

There is perhaps another issue, which is whether we want the specific US one for non-profit educational institutions to prevent them being liable for activities of their researchers?

As Rothnie has noted, if you want a discussion paper you’ll have to seek it from the AGs’ Department.