tag:theconversation.com,2011:/us/topics/safe-harbour-46174/articlessafe harbour – The Conversation2023-11-22T00:46:23Ztag:theconversation.com,2011:article/2180252023-11-22T00:46:23Z2023-11-22T00:46:23ZForgiveness or punishment? The government’s proposed ‘safe harbour’ laws send mixed messages on cyber security<figure><img src="https://images.theconversation.com/files/560567/original/file-20231121-21-5vqtmk.jpg?ixlib=rb-1.1.0&rect=0%2C13%2C4600%2C2485&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/danger-hack-attack-1188038749">Shutterstock</a></span></figcaption></figure><p>Should companies experiencing cyber attacks be forgiven if they cooperate with the government to stop such attacks? That’s the idea the federal government is considering with its possible “safe harbour” laws.</p>
<p>Last week, the defence minister, Richard Marles, <a href="https://www.minister.defence.gov.au/transcripts/2023-11-15/radio-interview-abc-am">floated the idea</a> of introducing a legally binding exemption from punitive government litigation if a company self-reports to the Australian Signals Directorate (the national signals intelligence agency) and invites its help. </p>
<p>The aim would be to drive more effective collaboration between the private sector and the directorate in dealing with cyber attacks, resolving them faster or preventing them altogether. </p>
<p>But the plan risks undermining the government’s attempts to crack down on corporations that don’t do enough to keep their clients’ data safe. </p>
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<h2>Reluctance to work together</h2>
<p>The government says <a href="https://www.minister.defence.gov.au/transcripts/2023-11-15/radio-interview-abc-am">it’s struggling</a> to overcome resistance by many Australian companies facing a cyber attack to work with the directorate to help defeat intrusions.</p>
<p>Companies are afraid to suffer the inevitable reputation loss if news of the breach leaks out. </p>
<p>They also fear exposing themselves to government fines or customer litigation of <a href="https://www.allens.com.au/insights-news/insights/2023/06/Takeaways-from-the-recent-Optus-and-Medibank-data-breach-class-actions/">the sort being pursued</a> by victims of data breaches at Medibank and Optus. </p>
<p>On the government side, the Australian Signals Directorate <a href="https://www.afr.com/policy/foreign-affairs/cyber-spy-agency-wants-lawyers-out-of-the-room-when-crisis-strikes-20231114-p5ejw4">has complained</a> their efforts to help companies under attack are being hampered by lawyers concerned mostly with minimising the risk of the company being sued in the future.</p>
<p>This is in direct contrast to the practice of leading <a href="https://www.keystonelaw.com/keynotes/crisis-management-for-lawyers">US tech companies</a> who prefer lawyers to be the first people involved in the response. </p>
<h2>A so-called ‘safe harbour’</h2>
<p>The government’s safe harbour offer would involve legislation. </p>
<p>The safe harbour principle is an exemption that can be granted for actions that might otherwise break the law if there’s a larger public good at play.</p>
<p>This is used in other areas of regulation, such as <a href="https://www.hallchadwick.com.au/safe-harbour-insolvency-regime/">bankruptcy law</a> and <a href="https://www.tpb.gov.au/safe-harbour">tax law.</a> It provides legal protections for administrators or accountants who have to take on risky business decisions in order to do their jobs.</p>
<p>Richard Marles claimed a safe harbour regime for self-reporting companies affected by a cyber attack would do two main things. </p>
<p>Firstly, he said, it would deliver the world-class capabilities of the Australian Signals Directorate to the affected company.</p>
<p>Secondly, Marles said it would help drive trust between the government and reticent private sector businesses.</p>
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<p>The government has proposed that complying with the cyber safe harbour requirements would shield companies from further legal action by the government. </p>
<p>In its cyber security strategy, <a href="https://www.abc.net.au/news/2023-11-21/federal-government-cyber-safety-framework/103132226">released today</a>, the government committed to consultations with industry on a legislated measure to help build the sort of trust outlined in Marles’ discussion of safe harbour.</p>
<p>But we don’t have any other detail about how this version of safe harbour law would work.</p>
<p>And for most corporations, the government may be the least of their worries in cases of large-scale data breaches or breaches of sensitive intellectual property information. </p>
<p>They will be concerned about the reputational damage first and foremost. </p>
<p>For listed companies, this can lead to a sustained drop in share price and open a pathway to costly law suits from seriously affected clients or business partners.</p>
<p>Safe harbour laws don’t do much to help with that.</p>
<h2>Would laws like this work?</h2>
<p>In cyber security, the concept of safe harbour is complicated and fraught with <a href="https://www.reliasmedia.com/articles/149137-hipaa-safe-harbor-offers-limited-but-important-protection">definitional and regulatory challenges</a>. </p>
<p>Such laws for cyber security are used <a href="https://www.tenfold-security.com/en/cybersecurity-safe-harbor-laws/">in several US states</a> mainly for promoting stronger compliance with industry standards. This is done by promising companies a degree of protection from various types of litigation if they are certified by the government to be reasonably compliant with the standards. </p>
<p><a href="https://about.unimelb.edu.au/__data/assets/pdf_file/0028/296074/Submission-to-Strengthening-Cybersecurity-Regulations-consultation_University-of-Melbourne.pdf">An Australian study</a> throws some doubt on the value of that process. </p>
<p>The research shows such standards are seen as a low bar, or even inappropriate in some situations. </p>
<p>Technology always moves more quickly than standards. For example, in May 2023 <a href="https://www.business-standard.com/world-news/security-specification-in-open-ran-incomplete-quad-working-group-123052100744_1.html">an intergovernmental working group found</a> the security standards for 5G were “incomplete” and did not cover all security requirements. Australia has been using 5G technology since 2019.<br>
The safe harbour laws may also be too weak to achieve what they set out to do.</p>
<p><a href="https://www.reliasmedia.com/articles/149137-hipaa-safe-harbor-offers-limited-but-important-protection">A US study</a> warns a safe harbour law for the US health sector “only offers some protection in certain circumstances”.</p>
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Read more:
<a href="https://theconversation.com/a-cancer-centre-is-the-latest-victim-of-cyber-attacks-why-health-data-hacks-keep-happening-205131">A cancer centre is the latest victim of cyber attacks. Why health data hacks keep happening</a>
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<h2>Forgiveness or punishment?</h2>
<p>The new Australian proposal, coming from the defence department in 2023, and <a href="https://www.innovationaus.com/asd-backs-safe-harbour-for-industry-govt-data-sharing-under-duress/">raised in Senate Estimates in 2022</a> by an opposition senator, appears to support the defence portfolio’s interest in better national security. </p>
<p>But there is a reasonable risk it will undermine the mission of the home affairs minister, Clare O’Neil. </p>
<p>She has staked much on the need to punish corporations who may have acted irresponsibly in allowing serious data breaches. </p>
<p>Corporations will remember <a href="https://www.theguardian.com/business/2022/sep/27/government-flags-new-cybersecurity-laws-and-increase-in-fines-after-optus-breach">her statement</a> in September 2022 that fines of hundreds of millions of dollars for large privacy breaches might be more appropriate than the existing cap of $2.2 million. </p>
<p>By December, new legislation imposing penalties up to $50 million <a href="https://www.ashurst.com/en/insights/australias-massive-new-privacy-penalties-become-law-but-will-be-clarified/">had come into force.</a> </p>
<p>The moves were designed in part to dampen community outrage over the data breaches.</p>
<p>But the safe harbour idea might increase the consumer concerns O'Neil has been working to allay.</p>
<p>Not all cyber attacks involve a risk of exposing large amounts of personal data, so there would be instances where the safe harbour option would not affect a person’s rights to seek redress. </p>
<p>But by its very nature, the proposal will impact the rights of businesses and consumers to know if they have suffered damage or loss from a cyber attack. </p>
<p>The government has a <a href="https://theconversation.com/should-cyber-officials-be-required-to-tell-victims-of-cyber-crimes-theyve-been-hacked-109510">moral obligation</a> to inform victims of cyber crime. </p>
<p>At a time of escalating cyber uncertainties, <a href="https://www.cyber.gov.au/about-us/reports-and-statistics/asd-cyber-threat-report-july-2022-june-2023#:%7E:text=Responded%20to%20over%201%2C100%20cyber%20security%20incidents%2C%20similar%20to%20last,a%207%20per%20cent%20increase.">increasing ransomware attacks</a>, and stepped up Russian and Chinese cyber attacks, the safe harbour proposal will need careful consideration. </p>
<p>The government will want to avoid antagonising public sentiment by limiting the rights of consumers. </p>
<p>So a solution that promises protection only against government litigation, but not civil litigation, may not be worth the political balancing act.</p><img src="https://counter.theconversation.com/content/218025/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Greg Austin is an Adjunct Professor in the Australia China Relations Institute at the University of Technology Sydney and co-founder of the Social Cyber Group. He consults for the International Institute for Strategic Studies.</span></em></p>The Australian government has promised to crack down on companies that aren’t prepared to defend themselves against cyber crime, but their proposed new laws may offer those same businesses a reprieve.Greg Austin, Adjunct Professor, Australia-China Relations Institute, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/982522018-06-15T06:03:47Z2018-06-15T06:03:47ZProtecting Google from defamation is worth seriously considering<p>It has been a <em>huge</em> week for defamation law.</p>
<p>Last Thursday, the NSW Government announced a push to reform Australia’s uniform defamation laws. It is calling for a “<a href="http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/review-recommends-defamation-cyber-age-reboot.aspx">cyber-age reboot</a>”. That proposal was backed by a <a href="http://www.justice.nsw.gov.au/justicepolicy/Documents/defamation-act-statutory-review-report.pdf">“statutory review” of the NSW Defamation Act</a>. At a meeting of the Council of Attorneys-General, the states and territories agreed to reconvene a working party to consider <a href="https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Documents/Council-of-Attorneys-General-communique-June-2018.pdf">reform</a> of equivalent statutes around Australia.</p>
<p>The following Wednesday, the High Court delivered its <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-25-2018-06-13.pdf">most important defamation judgment in years</a>. In a case that fits perfectly with the theme of the NSW proposals, Milorad “Michael” Trkulja succeeded in his <a href="http://eresources.hcourt.gov.au/downloadPdf/2018/HCA/25">appeal against Google</a>. The Court found that Trkulja could sue the American company for defamation in respect of search results which <a href="https://www.smh.com.au/technology/high-court-allows-man-to-sue-google-for-defamation-in-search-results-20180613-p4zl6l.html">potentially indicated that he had ties to Melbourne’s criminal underworld</a>.</p>
<p><a href="http://www.abc.net.au/news/2018-06-14/rebel-wilson-defamation-payout-reduced-on-appeal/9868300">The next morning</a>, the Victoria Court of Appeal allowed Bauer Media’s appeal from the judgment that <a href="https://theconversation.com/rebel-wilsons-4-5-million-win-a-sobering-reminder-that-defaming-a-celebrity-can-be-costly-83968">awarded Rebel Wilson A$4.5 million in damages</a>. The Court held that Wilson was entitled to A$600,000, and not to millions extra for lost opportunity to earn from roles that she may have been offered had the defendant not defamed her in its gossip magazines. The previous assessment of damages depended on the spread of the defamatory allegations on the internet via the “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3148794">grapevine effect</a>”.</p>
<p>The record for Australia’s largest defamation judgment is now barrister Lloyd Rayney’s <a href="http://www.abc.net.au/news/2017-12-20/lloyd-rayney-awarded-two-million-dollar-defamation-payout/9275316">A$2.6 million defamation win against the State of Western Australia</a>, litigated by Perth firm Bennett + Co. If Rayney’s current appeal is successful, <a href="http://www.abc.net.au/news/2018-01-31/lloyd-rayney-launches-appeal-against-defamation-decision/9381000">that figure may increase even further</a>.</p>
<p>There’s a lot to think about. </p>
<p>The NSW proposal to allow large corporations to sue for defamation is <a href="https://www.linkedin.com/pulse/defamation-law-should-protect-those-who-speak-truth-power-douglas/">particularly worrying</a>. It would have a significant <a href="https://www.theaustralian.com.au/business/media/reforms-will-silence-journos-experts-warn/news-story/9eef33151db4a9b0aaf3c70c22fd9e1b">chilling effect on journalism</a>.</p>
<p>But the issue that the NSW government chose to highlight from its statutory review was that defamation law is ill-equipped for the digital era. I agree that the way we communicate has <a href="https://www.smh.com.au/national/nsw/way-we-communicate-has-changed-and-law-must-too-20180607-p4zk52.html">completely changed in the 13 years since our Uniform Defamation Acts were introduced</a>.</p>
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Read more:
<a href="https://theconversation.com/defamation-in-the-digital-age-has-morphed-into-litigation-between-private-individuals-93739">Defamation in the digital age has morphed into litigation between private individuals</a>
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<h2><em>Trkulja v Google</em> shows it is time for reform</h2>
<p><a href="https://www.perthnow.com.au/technology/google/high-court-allows-milorad-trkulja-to-sue-on-google-over-searches-he-claims-defame-him-ng-b88865061z">Trkulja was shot in the back</a> in a Melbourne restaurant in 2004. As you’d expect, people wrote about it on the internet. Google provided access to that content through its search engine: web crawlers discovered web pages relevant to Trkulja, indexed them, and ranked them via its <a href="https://www.google.com/search/howsearchworks/">Google Search algorithms</a>.</p>
<p>The result of those processes was that Trkulja was associated with some shady figures through Google search. A Google image search for his name would display Trkulja’s picture with <a href="https://www.businessinsider.com.au/a-melbourne-man-is-suing-google-for-defamation-because-he-shows-up-beside-criminals-in-an-image-search-2018-6">those of Melbourne criminals</a>. The results pages contained keywords like “melbourne criminals” and “melbourne underworld photos”.</p>
<p>Google’s autocomplete results would also <a href="https://www.perthnow.com.au/technology/google/high-court-allows-milorad-trkulja-to-sue-on-google-over-searches-he-claims-defame-him-ng-b88865061z">cast him in a poor light</a>, returning terms like “michael trkulja criminal” or “michael trkulja underworld”. The results page linked to content which described Trkulja as a “former hitman”.</p>
<p>Trkulja sued, claiming that this computer-generated material defamed him. Google argued that the claim was so weak that it should come to an end even before a trial. Victoria’s Supreme Court <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/635.html">rejected Google’s argument</a>.</p>
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Read more:
<a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">Craig McLachlan, defamation and getting the balance right when sexual harassment goes to court</a>
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<p>But the Victorian Court of Appeal <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2016/333.html">allowed Google’s appeal</a>, agreeing that the claim had no prospect of success. It found that the <a href="http://www.austlii.edu.au/au/journals/SydLRev/2017/24.html">ordinary, reasonable person</a> would not understand that the search results conveyed “imputations” which damaged Trkulja’s reputation. In their view, ordinary people would understand that there may be a disconnect between the words you type into Google and the results that follow.</p>
<p>On further appeal, the High Court unanimously decided that the Court of Appeal was wrong. At least some of the search results complained of <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2018/hca-25-2018-06-13.pdf">had the capacity</a> to convey the idea that Trkulja was associated with dodgy characters. Trkulja was given “<a href="http://www.abc.net.au/news/2018-06-13/milorad-trkulja-sues-google-for-defamation/9863686">the green light to sue</a>” Google. Trkulja’s claim can now proceed.</p>
<h2>Even before this case, you could sue Google for defamation</h2>
<p>Like other foreign companies, Google is not immune to litigation <a href="https://www.researchgate.net/publication/321306294_Douglas_M_2017_The_exorbitant_injunction_in_X_v_Twitter_Communications_Law_Bulletin">because it is based overseas</a>. On old principles, Google can be responsible for third party content which it <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2014/2.html">“published” by sharing</a>. It might have a defence of “<a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/da200599/s32.html">innocent dissemination</a>”, but perhaps not if the defamed person <a href="https://inforrm.org/2017/02/04/australia-lnternet-publication-liability-and-context-dr-david-rolph/">drew the problem to the company’s attention</a>.</p>
<p>People have won against Google before. A few years ago, <a href="https://theconversation.com/australian-court-holds-google-is-responsible-for-linking-to-defamatory-websites-49883">Janice Duffy succeeded</a> in her claim that Google should be responsible for linking to defamatory websites. So in a sense, yesterday’s judgment is nothing really new.</p>
<p>It does provide some clarity on whether something like search results has the “capacity” to convey defamatory meaning. <a href="https://www.afr.com/business/legal/google-braces-for-conga-line-of-search-engine-claims-20180614-h11dj5">It is likely that Google will continue to be sued</a> by all sorts of people who are aggrieved by search results that cast them in a poor light.</p>
<p>The case also demonstrates that our old laws are perhaps ill-suited to the digital era.</p>
<h2>We should stop shooting the messenger</h2>
<p>Reflecting on this case, it is worth considering whether we should cut <a href="https://www.oecd.org/internet/ieconomy/44949023.pdf">internet intermediaries</a> some slack when it comes to defamation law.</p>
<p>We could do so by giving effect to the “safe harbour” proposal flagged in the NSW statutory review. It would provide internet intermediaries <a href="https://www.smh.com.au/national/long-overdue-defamation-law-review-an-important-first-step-20180608-p4zkcq.html">with a shield from liability for third parties content</a>. <a href="https://www.afr.com/technology/technology-companies/google/google-tech-firms-at-odds-with-content-creators-over-australian-copyright-safe-harbour-ruling-20171208-h01ket">Telcos already enjoy </a>something like this in Australia, which protects them from liability for copyright infringement.</p>
<p>Faced with cases like <em>Trkulja</em>, you would understand if Google simply acceded to every request to remove content from its search results. But what if Google did that for <a href="https://www.theguardian.com/technology/2014/may/15/hundreds-google-wipe-details-search-index-right-forgotten">complaints by paedophiles</a>, murderers <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3137526">or dictators</a>?</p>
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Read more:
<a href="https://theconversation.com/before-you-write-that-scathing-online-review-beware-of-defamation-92595">Before you write that scathing online review, beware of defamation</a>
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<p>Google provides a free public service which is indispensable to our way of life. Without Google’s assistance, many of us would be lost online. When access to the functionality of Google and other intermediaries is limited, <a href="https://theconversation.com/google-expands-the-right-to-be-forgotten-but-australia-doesnt-need-it-54887">our substantive access to information is limited</a>.</p>
<p>Extending safe harbour to internet platforms is worth seriously considering – other countries, <a href="https://www.researchgate.net/publication/321417379_Douglas_M_2017_Google_challenges_the_Supreme_Court_of_Canada's_global_injunction_in_the_United_States_Gazette_of_Law_Journalism">like the United States</a>, are already doing this.</p>
<p>The NSW statutory review does not go into these difficult issues in enough depth. In light of the rapid developments in media and technology, <a href="https://www.smh.com.au/national/long-overdue-defamation-law-review-an-important-first-step-20180608-p4zkcq.html">the best way forward is for the Australian Law Reform Commission to consider this in detail</a>. We need to make sure that we get the right balance between freedom of speech, free access to information, and protection of reputation.</p><img src="https://counter.theconversation.com/content/98252/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a Consultant at Bennett + Co, a litigation firm acting for Lloyd Rayney in his appeal. He is a member of the ALP and the Communications and Media Law Association, and editor of the Media and Arts Law Review.</span></em></p>Google has lost a High Court appeal in defamation litigation brought by Michael Trkulja. It is time to consider that extending “safe harbour” to Google may be a good idea.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/887812017-12-08T05:34:49Z2017-12-08T05:34:49ZAustralian tech start-ups stand to lose out in proposed copyright reforms<figure><img src="https://images.theconversation.com/files/198264/original/file-20171208-11318-io08ds.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">YouTube and Facebook are protected from Australia's copyright laws, since they already operate within the US safe harbours. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/thailand-july-20-2017-woman-holding-682866529?src=4svGEzhh9SUrJeDkEFZ6zg-1-27">from www.shutterstock.com </a></span></figcaption></figure><p>The Australian government quietly introduced the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1115">Copyright Amendment (Service Providers) Bill 2017</a> to the Senate on Wednesday. If enacted, the bill will extend the scope of Australia’s copyright safe harbours - very slightly. </p>
<p>Safe harbours protect internet hosts and platform providers from monetary liability for copyright-infringing content posted or shared by their users. For example, if you post the latest Thor movie to YouTube, YouTube won’t be responsible for copyright infringement if it takes down that video. In Australia, we only extend this protection to internet services providers, not general purpose websites.</p>
<p>This matters because technology firms rely on limits to liability to manage their risks. Companies like Facebook or YouTube, which host millions of pieces of user content, would face serious difficulty starting in Australia because our laws on copyright infringement are so strict.</p>
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Read more:
<a href="https://theconversation.com/its-time-to-future-proof-australias-copyright-laws-for-the-21st-century-58785">It's time to future-proof Australia's copyright laws for the 21st century</a>
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<p>The new legislation is a step in the right direction, but it doesn’t go far enough to create an environment that fosters Australian innovation.</p>
<p>Excluding platforms from safe harbours doesn’t make much difference to tech giants like YouTube and Facebook, since they already operate within the United States safe harbours. But it does discourage Australian tech start-ups from the chance to experiment in a reduced-risk environment.</p>
<p>It is not just the US with broader copyright safe harbours than Australia - jurisdictions around the world extend safe harbours to internet intermediaries beyond ISPs. </p>
<p>The <a href="http://cyberlaw.stanford.edu/page/wilmap-european-union">European Union</a>, for example, <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:EN:HTML">provides</a> that member states must ensure that any hosting provider will not be liable for unlawful content posted by users, provided it acts quickly to remove the content upon notice.</p>
<h2>Low hanging fruit</h2>
<p>It’s the second time this year that the government has amended Australia’s copyright laws. The first was the <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5832">Copyright Amendment (Disability Access and Other Measures) Act 2017</a>, passed in June, which provides <a href="https://theconversation.com/australias-copyright-reform-could-bring-millions-of-books-and-other-reads-to-the-blind-67709">greater access to copyrighted content for people with disabilities such as vision impairment</a>. </p>
<p>Both measures are low hanging fruit for the government. They improve our existing copyright law, but they don’t advance us far from the status quo.</p>
<p>The government is staying well clear of the more contentious, though far more impactful, potential reforms to the Copyright Act recommended by bodies such as the <a href="https://www.alrc.gov.au/publications/copyright-report-122">Australian Law Reform Commission</a> and the <a href="https://www.pc.gov.au/inquiries/completed/intellectual-property#report">Productivity Commission</a>.</p>
<h2>What are the copyright safe harbours?</h2>
<p>The copyright safe harbours came about as a result of the US <a href="https://www.congress.gov/bill/105th-congress/house-bill/2281">Digital Millennium Copyright Act</a> (DMCA) in 1998. The DMCA represented an important bargain struck between the established content industry, such as big film and TV studios, and the burgeoning tech industry. </p>
<p>The content industry got a “notice-and-takedown” regime that required online service providers to remove material that infringes copyright. In exchange, the tech industry got copyright safe harbours. </p>
<p>Under this system, the service provider must quickly and efficiently remove infringing content if they are informed about it by the copyright owner. This notice-and-takedown scheme has become fundamentally important to the way the internet works today.</p>
<h2>Why are Australian safe harbours so limited?</h2>
<p>In the 2005 <a href="http://dfat.gov.au/trade/agreements/ausfta/official-documents/Pages/official-documents.aspx">Australia-US Free Trade Agreement</a>, Australia agreed to adopt these provisions into Australian domestic law. </p>
<p>But in enacting the copyright safe harbours, parliament made a <a href="https://www.youtube.com/watch?v=XnvXIuqpiwk">drafting error</a>. Instead of extending protection to “service providers”, as the US law does, we gave protection to “carriage service providers” as defined in the Telecommunications Act. </p>
<p>Essentially, Australia only gave protection to internet service providers like Telstra, Optus and TPG, and not to platform providers like Whirlpool, RedBubble, YouTube or Facebook. For more than a decade, this has been a critical difference between US and Australian copyright law.</p>
<h2>What’s changing?</h2>
<p>The new bill appears to close the glaring gap between US and Australian law by replacing the term “carriage service provider” with, simply, “service provider”.</p>
<p>But the bill defines “service provider” to be either a carriage service provider; an organisation assisting persons with a disability; or a body administering a library, archives, cultural institution or educational institution. </p>
<p>It does not extend the safe harbour to those who actually need it the most – Australia’s internet hosts and platform providers.</p>
<p>This is a seriously <a href="https://theconversation.com/australias-copyright-reform-could-bring-millions-of-books-and-other-reads-to-the-blind-67709">missed opportunity</a> for Australian innovators. There is a real risk for businesses, both large and small, who want to provide online spaces for people to communicate. </p>
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Read more:
<a href="https://theconversation.com/australian-copyright-laws-have-questionable-benefits-77178">Australian copyright laws have questionable benefits</a>
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<p>Our copyright laws potentially make hosts liable for much of the copyright infringing content that users may upload or share. But it can be prohibitively expensive and time-consuming to pre-screen all content before it is uploaded. </p>
<p>This is one of the reasons why many large social media platforms don’t base their operations in countries like Australia, and why Australian businesses are at a major competitive disadvantage compared to those in other countries.</p>
<h2>Why not extend the safe harbour to Australian innovators?</h2>
<p>There were early indications that the Australian government intended to extend the safe harbours to all online service providers, but <a href="https://torrentfreak.com/google-facebook-excluded-from-aussie-safe-harbor-copyright-amendments-171205/">these amendments were shelved</a>. </p>
<p>Entertainment industry groups have been lobbying hard in recent years for measures that go beyond the notice-and-takedown scheme that the safe harbours provide. They want what they call <a href="http://beta.latimes.com/opinion/op-ed/la-oe-sprigman-lemley-notice-and-takedown-dmca-20160621-snap-story.html">notice-and-staydown</a>: proactive filtering of unlicensed copyright content by service providers. </p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
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<p>At the same time, copyright owners want higher payments. They use the term “value gap” to describe what they see as the difference between sites like Spotify that pay hefty licence fees to make content available to users and sites like YouTube that do not. </p>
<p>Content owners are no longer happy with the bargain they struck in the DMCA – they allege that sites like YouTube are <a href="https://torrentfreak.com/riaa-says-youtube-is-running-a-dmca-protection-racket-160412/">gaming the system</a> of the safe harbours. </p>
<p>There is a false equivalency at work here. Spotify is not a site for user-generated content and does not purport to be; sites like YouTube have everyday users at their core. If we believe that creative discourse, engagement and play matters then there is a cogent reason why sites that facilitate user-generated content might need some legal latitude.</p>
<p>However, this debate misses a more fundamental point. Limited safe harbour provisions hurt Australian creators and innovators. They increase the risk to innovators developing new technology products and platforms. </p>
<p>And, importantly, Australian creators miss the opportunity to exercise greater control over their creations through notice-and-takedown mechanisms that are easy to use and far cheaper than copyright lawsuits.</p><img src="https://counter.theconversation.com/content/88781/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kylie Pappalardo leads research projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance (ADA).</span></em></p>The government’s latest Copyright Amendment Bill is a step in the right direction, but it doesn’t do enough to foster innovation.Kylie Pappalardo, Lecturer, School of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/874322017-11-14T06:38:16Z2017-11-14T06:38:16ZThe Trans-Pacific Partnership is back: experts respond<p>The <a href="http://dfat.gov.au/trade/agreements/tpp/news/Pages/trans-pacific-partnership-ministerial-statement.aspx">latest incarnation</a> of the Trans-Pacific Partnership (TPP) is said to have “<a href="http://www.smh.com.au/federal-politics/political-news/its-the-trans-pacific-partnership-with-fewer-bad-bits-20171112-gzjo48.html">fewer bad bits</a>”. But as our experts point out below, there’s still a great deal wrong with, or missing from, the regional free trade agreement. </p>
<p>The new TPP is informally known as the TPP11, after the United States pulled out of the original 12-country bloc earlier this year.</p>
<p>While the agreement has not yet been finalised, the 11 trade ministers have <a href="http://dfat.gov.au/trade/agreements/tpp/news/Pages/trans-pacific-partnership-ministerial-statement.aspx">released a statement</a> saying that the “core elements” have been agreed. </p>
<p>Twenty provisions from the original TPP <a href="http://dfat.gov.au/trade/agreements/tpp/news/Documents/annex-2.pdf">have been suspended</a>, but there are still a few areas to be worked out, including those relating to state-owned enterprises.</p>
<p>The Conversation’s experts respond:</p>
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<p><strong>Peter Robertson, Dean and Professor, University of Western Australia Business School:</strong></p>
<p>Trade deals such as the TPP11 that include some countries and exclude others are inherently flawed mechanisms for extracting the most benefit from trade (also known as “<a href="https://open.lib.umn.edu/principleseconomics/chapter/17-1-the-gains-from-trade/">gains from trade</a>”). </p>
<p>All trade deals are about “swings and roundabouts”. That is, a redistribution of income from producers to consumers and governments. For example, when we remove tariffs on automobiles, then consumers gain but producers and their employees lose. When we impose a tariff on agriculture, consumers lose by paying higher prices at the grocery store and producers gain. </p>
<p>Under reasonable circumstances there is reason to believe that the sum of the gains exceeds the losses. But when you add up all the potential winners and losers from the TPP11, from an Australian perspective you end up with pretty much zero. Or, to be more precise, <a href="https://piie.com/system/files/documents/wp17-10.pdf">an 0.5% increase</a> in GDP by 2030.</p>
<p>The gains are so small because the TPP11 diverts attention away from big trade issues like agricultural protectionism in Europe and the US, and focuses on smaller issues among a few countries who have <a href="https://www.austrade.gov.au/Australian/Export/free-trade-agreements">mostly</a> already liberalised every sector that is possible given the current political willpower.</p>
<p>From a global perspective the TPP11 could even have negative effects because it encourages us to buy from member countries, and not from outsider countries who may in fact have better and cheaper products.</p>
<p>The biggest winners in the world from current protectionist arrangements are the agricultural producers in Japan, the US and Europe where agricultural protection remains extreme and untouchable politically. We need trade agreements that focus on the big issues, not the small ones.</p>
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<p><strong>Pat Ranald, Research Associate, University of Sydney:</strong></p>
<p>The TPP11 retains all provisions on Investor-State Dispute Settlement (ISDS) from the previous TPP, except for two narrow improvements which only apply if investors have specific contracts or authorisations with governments.</p>
<p>Despite claimed “<a href="http://www.abc.net.au/news/2015-11-06/tienhaara-ttp-investment/6918810">safeguards</a>”, ISDS enables all other foreign investors to bypass national courts and sue governments for compensation in international tribunals if they can argue that changes in domestic laws or policies harm their investment. The cases are tried by tribunals composed of investment lawyers who can continue to represent clients. There is no independent judiciary, and no precedents or appeals to ensure consistency of decisions.</p>
<p>Many of the <a href="http://investmentpolicyhub.unctad.org/ISDS">817 known cases</a> involve public interest laws. Swiss Pharmaceutical company <a href="http://isds.bilaterals.org/?investigation-as-colombia-pushes">Novartis</a> is suing the Colombian government over the plans to reduce prices on a patented treatment for leukaemia. The US firm <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3002626">Bilcon</a> won its claim against the Canadian government for US$101 million after a provincial government refused to approve a quarry in an ecologically sensitive area. The French company <a href="http://www.bresserpereira.org.br/terceiros/2014/agosto/14.08.injustice-industry.pdf">Veolia</a> is claiming compensation from the Egyptian government for a rise in the minimum wage.</p>
<p>Even if a government wins a case, defending it can take years and cost millions. The US tobacco firm Philip Morris shifted some assets to Hong Kong and used ISDS in an Australia-Hong Kong investment agreement to claim billions in compensation for Australia’s plain packaging law. It took more than four years and <a href="http://www.smh.com.au/federal-politics/political-news/australia-faces-50m-legal-bill-in-cigarette-plain-packaging-fight-with-philip-morris-20150728-gim4xo.html">reportedly</a> cost A$50 million in legal fees for the <a href="http://www.smh.com.au/comment/the-dismissal-of-a-case-against-plain-cigarette-packaging-is-good-news-for-taxpayers-20151218-glrb53.html">tribunal</a> to decide that Philip Morris was not a Hong Kong company.</p>
<p>ISDS gives additional legal rights to global corporations to sue governments in unfair international tribunals, undermining democratic regulation in the public interest. Trade agreements should not increase corporate power at the expense of communities.</p>
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<p><strong>Kimberlee Weatherall, Professor and Associate Dean (Research),
The University of Sydney Law School</strong></p>
<p>The TPP11 suspends the most controversial copyright provisions. But not everything controversial is out.</p>
<p>The TPP11 will no longer extend the term of copyright to 70 years after the author’s death - a big deal for <a href="https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html">Canada</a> and <a href="http://www.copyright.org.nz/basics.php">New Zealand</a> where copyright lasts 50 years after death. </p>
<p>It also suspends the anti-circumvention provisions, which means the TPP11 won’t make avoiding access measures (for example, technology that locks your ebooks or movies to a particular device) a crime. Although there’s a sting in the tail for Australia here - the TPP text on anti-circumvention is less restrictive than <a href="http://dfat.gov.au/trade/agreements/ausfta/official-documents/Pages/official-documents.aspx">our free trade agreement with the US</a>, and so we lose the benefit of that extra flexibility.</p>
<p>The incredibly complex <a href="https://theconversation.com/dont-sue-us-for-search-googles-unnecessary-safe-harbour-appeal-24405">safe harbours</a> provisions are also suspended – this leaves members with more flexibility to adjust copyright in the digital environment (but also potentially means no protection for online service providers for the acts of their infringing customers). </p>
<p>Also suspended is a funny little footnote that might have given TPP11 authors a claim on payments from some cultural funds (such as Canada’s). However, a provision that encourages copyright to be balanced is not suspended, so that’s good news. </p>
<p>But there is still a cornucopia of enforcement procedures and remedies, and very broad criminal liability for infringing copyright – including liability for “aiding and abetting” others’ infringement. There are broad provisions that allow right holders to claim any equipment used to infringe copyright. </p>
<p>And, beyond copyright, the ministers haven’t suspended a controversial provision (a first of its kind internationally) on the theft of <a href="http://law.unimelb.edu.au/__data/assets/pdf_file/0006/1994145/Rimmer.pdf">trade secrets</a>, and they’ve retained some key provisions on geographical indications and trade marks that are going to complicate efforts by countries in the region to use geographical indications (such as “<a href="https://theconversation.com/the-manuka-honey-fight-is-one-we-have-to-have-78261">Manuka honey</a>”) to develop local artisan and agricultural communities. </p>
<p>So while I’m happy to celebrate some realisation that the intellectual property chapter of the original TPP had serious problems, there is still quite a lot to dislike about what remains. </p>
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<p><strong>Deborah Gleeson, Senior Lecturer in Public Health, La Trobe University,</strong><br>
<strong>Belinda Townsend, Research Fellow, Australian National University:</strong></p>
<p>The <a href="http://dfat.gov.au/trade/agreements/tpp/news/Documents/annex-2.pdf">list of 20 items ministers have agreed will be suspended</a> in the re-branded TPP includes several of the intellectual property rules for pharmaceuticals that were demanded by the US but deeply unpopular amongst the other TPP countries. These rules would have <a href="https://theconversation.com/time-for-costly-medicine-monopolies-to-go-from-tpp-trade-talks-87176">made medicines less affordable</a> in the Asia-Pacific region.</p>
<p>Importantly for Australia, the provisions specifically targeting biologic medicines were on the list of suspended items. <a href="http://www.publish.csiro.au/AH/AH17031">Our recent study</a> found that this expensive class of drugs cost Australian taxpayers more than A$2.2 billion in 2015-16. Suspending the biologics rules means fewer barriers to making lower-cost treatments for conditions like cancer and rheumatoid arthritis available – at least for now. </p>
<p>Also suspended were rules requiring countries to provide patents for new uses, methods and processes of using existing products; extensions to patent terms; and what is known as “data exclusivity” – monopolies on clinical trial data submitted to regulatory agencies like the Therapeutic Goods Administration. These provisions would have <a href="http://journals.sagepub.com/doi/full/10.1177/1468018117734153">primarily impacted developing countries</a>, delaying access to generic medicines. They would also have cemented existing monopolies on new medicines in developed countries, including Australia – making it more difficult to reform our patent laws in future.</p>
<p>There is no doubt that suspension of these rules is a positive development. But simply putting them on ice for later implementation if the US re-joins the accord could just mean delaying their effects until a later time.</p>
<p>Despite the suspension of these specific items, there remain other provisions in the intellectual property chapter that could reduce access to medicines in the region. A better option than freezing a limited list of selected provisions would be to remove, or at least suspend, the whole intellectual property chapter.</p>
<p>There are many other parts of the TPP that could affect health, which have not been suspended or renegotiated. One example is the TPP’s alcohol labelling rules, which remain unchanged. These may <a href="https://pursuit.unimelb.edu.au/articles/could-new-trade-rules-mean-a-lack-of-health-warnings-on-alcohol">create difficulties for countries wanting to mandate effective health warnings</a> or other types of health information on alcohol containers. </p>
<p>Worse, there only seems to be some minor tinkering around the edges of the investment chapter being considered. The changes don’t appear to affect the chances that claims could be brought by corporations against governments over health and medicines policies. It’s a shame the TPP11’s negotiators haven’t taken the opportunity to exempt all health policies from potential investor-state disputes - tobacco control measures remain <a href="http://www.phrp.com.au/issues/april-2016-volume-26-issue-2/to-what-extent-does-a-tobacco-carve-out-protect-public-health-in-the-trans-pacific-partnership-agreement/">the only health policies that countries can elect to explicitly exclude</a>.</p>
<p>There is still time for a more comprehensive reassessment of the TPP, including its likely impact on health and human rights: the agreement has not yet been finalised. </p>
<p>Suspending a small number of the worst provisions doesn’t mean an agreement that is good for health.</p><img src="https://counter.theconversation.com/content/87432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Gleeson has received research funding in the past from the Australian Research Council. She has received funding from various national and international non-government (not-for-profit) organisations to attend speaking engagements related to trade agreements and health, including the TPP. She has represented the Public Health Association of Australia on matters related to trade agreements and public health.</span></em></p><p class="fine-print"><em><span>Belinda Townsend is a member of the People's Health Movement and the Public Health Association of Australia. She has been involved in the Public Health Association of Australia's advocacy on matters relating to trade agreements. </span></em></p><p class="fine-print"><em><span>Kimberlee Weatherall receives funding from the Australian Research Council, DP150104175, Process Matters: The new global law of intellectual property enforcement. She is an unpaid member of the board of the Australian Digital Alliance.</span></em></p><p class="fine-print"><em><span>Pat Ranald is the voluntary convener of the Australian Fair Trade and Investment Network, which advocates for fair trade base on human rights, labour rights and environmental sustainability.</span></em></p><p class="fine-print"><em><span>Peter Robertson receives funding from the Australian Research Council and The Department of Foreign Affairs.</span></em></p>Many provisions in the Trans-Pacific Partnership have been suspended after the United States pulled out. But there’s still much to debate about the regional free trade agreement.Deborah Gleeson, Senior Lecturer in Public Health, La Trobe UniversityBelinda Townsend, Research Fellow, NHMRC Centre for Research Excellence in the Social Determinants of Health Equity, School of Regulation and Global Governance, Australian National UniversityKimberlee Weatherall, Professor and Associate Dean (Research) The University of Sydney Law School, University of SydneyPatricia Ranald, Research Associate, University of SydneyPeter Robertson, Professor, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.