LG Leader December 2018

On 29 June 2018, the Copyright Amendment (Service Providers) Act 2018 (Commonwealth) (“the Amendment Act”) received assent. The Amendment Act will commence on 29 December 2018. It has the effect of amending the Copyright Act 1968 (“the Copyright Act”) to provide limits on the scope of remedies available against ‘service providers’. This term has been defined by the Amendment Act as including (but is not limited to) “a body administering a library, if…all or part of the collection comprising the library is accessible to members of the public directly or through interlibrary loans” (our emphasis).

Most councils operate libraries accessible to the public. The amendments made to the Copyright Act will, therefore, be relevant. In a practical sense, the Amendment Act extends the existing Safe Harbour Scheme (“the Scheme”) to councils to the limited extent that online copyright infringement occurs through a council’s library functions.

The Scheme is established by Division 2AA of the Copyright Act and currently provides protection to carriage service providers (“CSPs”) as defined by the Telecommunications Act 1997 (i.e. telecommunications companies such as Telstra and Optus). The protection is intended to “limit the remedies that are available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers” (our emphasis).

The Scheme is available to a CSP insofar as it can demonstrate that it has adhered to certain conditions under the Copyright Act in accordance with the type of activity that the CSP undertakes. A base requirement for all CSPs wishing to benefit from the Scheme is that they must “implement a policy” that provides for termination, in appropriate circumstances, of the accounts of repeat infringers” (our emphasis) from using its system or network.

Importantly, upon the commencement of the Amendment Act, libraries will have the same legal protections as CSPs when they provide online services to the public and will be subject to the same conditions in order to benefit from them (i.e. at a minimum, implementing a policy pursuant the Copyright Act).

herefore, the Amendment Act has the effect of mitigating the risks associated with providing services to the public that, in the absence of the Scheme, currently leave councils, as bodies administering libraries, vulnerable to legal action.

For more information, please contact us.