Intellectual Property Barrister Dimitrios Eliades discusses potential pitfalls with Australia’s Copyright Safe Harbour Regime in an article series for Legalwise News and asks: Does the harbour harbour mines? Below is part one. Dimitrios recently gave a seminar presentation on this topic for Legalwise Seminars. 
Background
A product of online accessibility to traders is the complaint that a client’s copyright work or mark have been copied by a competitor. Safe harbour provides those with its benefit, to be given notice of such claimed infringements. The question as to whether safe harbour should be extended to all who provide online services is a hotly debated question.
Introduction
Next year will mark the 20th year since the Australian Government’s response to the “rapid developments in communications technology, in particular, the huge expansion of the Internet” in the Copyright Amendment (Digital Agenda) Act 2000 (Cth).[1]
The Copyright Amendment (Digital Agenda) Bill 1999 was introduced into the House of Representatives on September 1999 explaining that the “advent and use of new technologies over the past decade have meant that there are now a number of new ‘acts’ which can be done in relation to material, particularly when it is in electronic form.[2]
The “safe harbour” provisions, Sections 116AA to 116AJ of the Copyright Act 1968 (Cth) (“Copyright Act”), mirrored provisions in the United States and were introduced into Part V (“Remedies and offences”) by the US Free Trade Agreement Implementation Act 2004 (Cth)[3] and the Copyright Legislation Amendment Act 2004 (Cth).[4]
Division 2AA Part V, when introduced applied (and was limited to), “carriage service providers” as defined in s.10 of the Copyright Act by reference to the Telecommunications Act 1997 (Cth).
The purpose of the safe harbour provisions was 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. A carriage service provider must satisfy certain conditions to take advantage of the limitations.
Where it is was going
Amongst the recommendations of the Productivity Commission (“PC”) was the recommendation that the Australian Government expand the safe harbour scheme to cover not just carriage service providers, but all providers of online services.[5]
Interestingly, an Exposure Draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 initially provided in Schedule 2, for a wider application of safe harbour protection to include a provider of transmission, routing or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing.
Responding to objections, the Government withdrew the amendment for further consideration and the Copyright Amendment (Disability Access and Other Measures Act 2017 (Cth) focussed on non-infringement in any copyright material in respect of a wider class than just carriage service providers, but not as wide as recommended by the PC.
The Explanatory Memorandum (“EM”) noted the amendment broadened the people that are able to take advantage of the safe harbour scheme to include, in addition to carriage service providers:
- educational institutions, through their administering bodies, including universities, schools, technical colleges, training bodies and pre-schools;
- libraries that either make their collection available to the public or are Parliamentary libraries, through their administering bodies;
- archives, through their administering bodies, including the National Archives of Australia and specified state archives, galleries and museums;
- key cultural institutions, through their administering bodies, including specific archives and libraries that are not open to the public; and
- organisations assisting persons with a disability.
These institutions and organisations are defined under the Act, with the addition of, or amendment to, these definitions to be made by the Copyright Amendment (Disability Access and Other Measures) Act 2017.”
Dr Dimitrios G Eliades holds a Bachelor of Theology, a Bachelor of Laws from Sydney University, and a Master of Laws from the University of Queensland concentrating on IP and IP related subjects. In 2008 he was awarded a doctorate by the Queensland University of Technology in the area of patent entitlement. Recommendations made in his doctoral thesis were adopted by the Government in the Intellectual Property Laws Amendment (Raising The Bar) Act 2012, by the insertion of a new s.22A and s.191A into the Patents Act 1990. Dimitrios answered a call to the Brisbane Bar in October 1998 where he is now a barrister in private practice exclusively in the field of intellectual property. He has been for many years, the author of the update publications in the areas of copyright, trade marks, patents, designs, confidential information and related rights, within the LexisNexis publications, entitled ‘Lahore – Copyright and Designs’ and ‘Lahore – Patents Trade Marks and Related Rights’. Dimitrios also co-authors with Professor Anne Fitzgerald, the Thomson Reuters’ publications ‘IP Nutshell’ and ‘Introduction to Intellectual Property’.
In addition, Dimitrios contributes comments and articles to a range of IP publications including the IP Bulletin, Internet Law Bulletin, ‘Hearsay’ – the Queensland Bar Association publication, the Queensland Law Society’s publication ‘Proctor’ and the IPSANZ publication ‘IP Forum’. He has been an adjunct lecturer in IP at the Queensland University of Technology to undergraduate and masters level students coordinating and presenting an IP intensive for a week on ‘IP Litigation’. Dimitrios presents nationally and internationally on IP issues at conferences and legal education seminars. In his practice, Dimitrios has been briefed to advise various State Government departments in the area of intellectual property and has made numerous submissions to Commonwealth advisory boards in relation to developments in IP and been specifically invited into the consultation process by the Commonwealth Government. Contact Dimitrios at deliades@qldbar.asn.au or connect via LinkedIn 
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[1] Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (“Roadshow”) [22] referring to the statement of the then Attorney General, the Hon Daryl Williams in the House of Representatives.
[2] Bills Digest No. 102 1999-2000 Copyright Amendment (Digital Agenda) Bill 1999 prepared for debate.
[3] Schedule 9 Part 11.
[4] Schedule 1.
[5] “Intellectual Property Arrangements”, Australian Government Productivity Commission, Final Report (“the PC Report”), sent to Government 23 September 2016 and publicly released 20 December 2016 page 567.
