On 6 December 2017, the Copyright Amendment (Service Providers) Bill 2017 (Cth) was introduced to the Senate. The Bill amends the Copyright Act 1968 (Cth) by extending the operation of the safe harbour scheme under Division 2AA of Part V of the Act, and limiting remedies available against carriage service providers to a broader range of service providers in the disability, educational and cultural sectors.

The current safe harbour provisions are contained in sections 116AA to 116AJ (Part V Division 2AA) of the Act. These sections provide that where copyright is infringed in the course of carrying out one or more of a prescribed category of activities the relief that a court may grant against a carriage service provider is limited to non-monetary orders, and includes an order requiring reasonable steps be taken to disable access to an online location outside Australia, and termination of a specific account, and in the case of caching, storing customer material or linking, the removal or disabling of access to infringing copyright material. In deciding whether to make an order the court must have regard to a number of prescribed factors, and any other matters it considers to be relevant.

For the safe harbour provisions to apply, the carriage service provider must satisfy a number of conditions, depending on the prescribed category of activities. Currently under the Act, the safe harbour scheme only covers carriage service providers. A carriage service provider is defined in the Telecommunications Act 1997 (Cth) as a person who uses a network unit to supply carriage services to the public. This includes ISPs such as Telstra, Optus, Vodafone and TPG. Under the Bill, the additional service providers to be covered under the scheme would include educations institutions, organisations assisting persons with a disability, libraries, archives and key cultural institutions, in recognition of the valuable services these organisations provide to Australian communities. Interestingly, and despite extensive lobbying, the Bill will not extend the safe harbour to services such as Google and Facebook.

The Bill will be considered next by the Senate Standing Committee on Environment, Communications and the Arts.