Australian Digital Alliance (part two)

Safe Harbours

Charles Alexander (Chair)

Ishtar Vij

Tom Joyce

Paula Bray

Charles Alexander

  • Safe harbours in AU only cover ISPs, not other service providers.

Ishtar Vij

Public Policy and Government Affairs


(opens with a revision of massive growth of the Web.)

Google wants to allow for sharing and remixes while respecting content creators’ rights.

YouTube Play: “a celebration of the best creative videos on the web, curated by the Guggenheim.”

map my summer

Beached whale.

Safe harbours necessary.

Content owners need good processes for enforcing their copyright online.

Users need easy ways to challenge takedown notices.

Service providers will be able to avoid financial penalties as long as they comply with safe harbour provisions.

Existing copyright regimes lead to uncertainty and risk.

AU’s existing safe harbour scheme should be changed to become more technology neutral.

This would be in line with government policies:

  • growing the digital economy, powered by the NBN.
  • promoting the development of innovative online services.

Tom Joyce

University of Queensland

  • For many years, unis have acted as service provided. We deal with hundreds and thousands of students, who we have very little control over.
  • Unis have been acting as if they were carriage service providers – managing relationships between content providers and users (students) – but without the equivalent protection.
  • We’ve had examples at UQ where we could have faced substantial penalise for, for example, large volumes of illegal software downloads.
  • Our capacity to know what’s happening on our networks is limited, but we’re doing our best.
  • Issues with people not wanting to use resources they’re not 100% confident about.

Paula Bray

Powerhouse Museum

Manager, Visual and Digitisation Services

  • We constantly have to take risks in what we do.
  • One of the first museums to start putting content online.
  • Putting material up under CC licenses.
  • Hackday at the museum using the Powerhouse API: 13 projects up!
  • Trying to be an open museum: open access.
  • Barriers: issues with licenses when material is handed over.
  • We use: vimeo, flickr, etc.
  • Releasing content that’s out of copyright to the Flickr commons.
  • Some awesome results of releasing material: google mashups, augmented reality mobile apps (eg. Go to physical site, will show you old photos), partnerships with ABC.
  • Want to reduce fees to the education sector.
  • This is publicly funded material, it should be publicly avalaible.
  • Managing risks on a case-by-case basis.
  • Material should be shareable and findable (and accessible in other ways).

Q: why is AU’s safe harbours provisions limited to carriage service providers (ISPs) only?

A: (Helen): it was expedient, due to telecommunications act, needed to implement US agreement provisions quickly. With more time, it probably would have been done differently.

Q: (Kim Weatherall) There is an intention to deal with the safe harbours provisions – there’ll be a consultation paper, we’ve heard that all service providers should have access to safe harbours provisions – what do others think of this?

A: (Tom Joyce) The heat in copyright discussions is a problem – it goes on endlessly, there’s an ongoing schism. We need to look at service providers’ capacity to control. If service providers can’t control users, they should have a shared responsibility. Need a clear path for copyright owners to register their issues. There seems to be an attitude in AU…copyright owners feel disenfranchised. Copyright owners need to feel like there’s a process.

A: (Charles Alexander) Isn’t this one of the issues: there’s a narrow scheme, and they still can’t get agreements with ISPs?

A: (Ishtar Vij) We need to think about what’s practical as a response to copyright infringement complainst. Eg. Can only take down material if you’re hosting it. Issues with peer-to-peer networks – not hosted by carriage service providers.

IiNet Case

Graham Greenleaf (Chair)


Anne Flahvin

  • Cowdroy: just providing access to the Net isn’t allowing copyright infringement.
  • Copyright owners have been suggesting that there’s now guidance on how to get ISPs to terminate customers.
  • Emmett: Copyright owners would have needed to provide unequivocal, cogent information about copyright infringement.
  • Some very real issues with graduated response schemes.
  • Emmett: in order to shift the burden to ISPs and suggest they haven’t taken reasonable steps, copyright owners need to take on costs for finding infringing content, maintaining the takedown regime, and take on costs for liabilities involved in terminating clients.
  • Nicholas: silent on the question of requirement to pay the cost of the takedown process. If an allegation by a copyright owner requires further investigation, refusal to take further steps doesn’t imply that the ISP has failed in their obligations.
  • Not surprising that the full court abandoned Cowdroy’s approach in the initial decision. A good policy approach, but not legally.
  • A reasonably high burden on copyright owners to document and modify infringement.


Tom Cochrane


  • Duty of care balance.
  • Moorehouse case? Provision of the ability to make copies does, to some extent, render the provider liable to charges of facilitating infringing behaviour. However, no radical outcome of this.
  • Cumulatively, millions of dollars spent on licensed material through QUT. Have had to develop a framework for this, just as the government has.
  • A serious level of concern about more serious issues, eg. Hacking from QUT facilities and other illegal activities.
  • A lot of effort around reasonable duty of care about use of QUT’s IT facilities – around $30million a year.
  • We note that the appetite for litigation: holding large institutions more liable than they already are.


Anna George

Murdoch University

  • previously involved in the WTO.
  • Governance is a key issue.
  • Very little understanding of copyright issues in the general public.
  • When general public understands, they are likely to be appalled.
  • Stakeholders were there during consultations with the WTO, took money for projects, then supported negotiations. [Seems rather irate: feels stakeholders failed during negotiations?] We need AU public policy for the AU public good.
  • Serious issues with WIPO international collection society.
  • TRIPS led to globalisation of IP. Universities did not respond by looking at the consequences. (only the law departments, which benefited as more students want to study IP now.) Only a few departments now understanding this, and the links with international political economy.
  • iiNet: the battle is ongoing in terms of where we go from here.
  • We haven’t yet seen the full force of the US FTA. Have been told it’s a framework agreement, no need to change legislation. We’ll see.
  • Copyright societies want more action from our judicial, police, resources, etc. Competing with other uses.
  • US FTA has not been implemented as harshly as it might be in the future. We can implement it cleverly, or it can be rabidly implemented. Will depend in part on lobbying groups.
  • Don’t really know yet how ACTA will play out.
  • Leaked EU memo from James Love: worth looking at!


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