Electronic Frontiers Australia
PO Box 382
North Adelaide SA 5006

28 August 1997

Ms Catherine Hawkins
Senior Government Lawyer
Intellectual Property Branch
Attorney-General's Department
Robert Garran Offices
National Circuit

Dear Ms Hawkins,

Further to the announcement of the review of the Copyright Act and the release of the abovementioned discussion paper, Electronic Frontiers Australia (Incorporated in South Australia) wishes to make the following submission.

Electronic Frontiers Australia (Inc) is an organisation established in 1994 to help define and promote civil liberties of on-line users and system administrators. Our charter seeks to extend the rights of individuals within Australia to access the global networks that make up the Internet.

Accordingly, E.F.A. has an interest in amendments to the law which would impact on the range, price and access to on-line services.

The paper requests at paragraph 1.21 comment as to whether the Copyright Act should be amended to provide that Internet Service Providers would be exempt from copyright liability in circumstances in which they provide notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act. E.F.A. would propose that the Copyright Act define a statement which would be acceptable notice under this requirement, and to suggest that the Australian Government provide an information site which may be conveniently "hot-linked" by I.S.P.s in order to discharge this obligation.

E.F.A. would support such a position in the context of an otherwise complete indemnity against liability for copyright liability falling on I.S.P.s in relation to content provided by others. The existing broadcasting, diffusion and publication rights set out in the Copyright Act make it unclear as to whether Australian law places the burden of paying royalties upon I.S.P.s. Claims by copyright owners associations such as A.P.R.A. and A.M.C.O.S. have given rise to the perception that I.S.P.s are liable under Australian law for the activities of their users. This is an unacceptable position, as I.S.P.s are not capable of restricting their users' access to copyright material nor are they capable of monitoring infringement of copyright or use of copyright material giving rise to a claim for royalties. Ultimately, only the content provider or the person obtaining content can reasonably be expected to be responsible for the costs of obtaining or providing such material.

E.F.A. would request that the Government consult I.S.P. and other on-line organisations with a view to establishing a form of words and procedure for I.S.P.s to give appropriate copyright warnings to their users and content providers.

The definition of "to the public" which has been the subject of consideration for either law reform or alternatively for judicial interpretation, is an important issue to be determined in the context of the global Internet. There have been several occasions upon which copyright owners in other countries have contacted Australian users and content providers, under circumstances in which Australian copyright owners' associations also have claims. There is a real problem that in the absence of uniform international copyright law, a broad definition of "to the public" could result in unintended or unforeseen liability falling upon Australians.

Concern is expressed relating to the proposed enforcement provisions set out in part 5 which would outlaw the unauthorised circumvention of technological copyright protection measures. Whilst it is acknowledged that commercial piracy of copyright material is an international problem, new legislation should carefully consider the consumer interest in being able to make proper back-ups of purchased copyright material. Digital media often needs back-up for consumer protection purposes, and there are several technologies and commercially-available products which are designed to permit owners of copyright material to back it up for personal use. If there is to be a new offence in relation to circumvention of copyright protection measures, it should only be applied in the context of a legislative scheme which permits backing-up of purchased content for personal use. This would include such things as the ability to back-up compact discs, copy-protected floppy discs and other media and to be able to examine certain proprietary data which may be concealed within programmes. For example, the latter point would include the ability to examine "refused access" lists within filter software programmes.

E.F.A. strongly supports an exemption for libraries and educational institutions in relation to liability for the exercise of the proposed new transmission right and the proposed right of making available material to the public. Universities and libraries will in the future routinely provide Internet access as part and parcel of their roles as providers of public information. Such Internet access, used by students and patrons, could have the effect of making public institutions liable unreasonably for copyright infringement. It would be preferable if the legislation acknowledged that libraries and educational institutions, when they are acting solely in the capacity of providers of Internet access, ought not have any liability for copyright material obtained or provided by users.

Careful consideration should be given to the "fair dealing" provisions of the Copyright Act, especially with regard to incidental or automatic copying of material from the Internet when browsing web pages, replying to articles in email or making fair comment on matters of public interest. It should be noted that copyright owners will be anxiously testing the limits of new copyright legislation, and consequently the public interest in being able to easily view material on the Internet and to be able to review such material should be carefully defined. The new standard for the new right of "making available material" would be harsh if it had the outcome that merely viewing the material gave rise to an obligation on the part of the user or the I.S.P.

Otherwise, E.F.A. congratulates the Government on bringing these matters to the public for comment and E.F.A. looks forward to making further submissions in relation to Australia's proposed obligations under the W.I.P.O. treaties.

Yours faithfully,

Kimberley Heitman
Electronics Frontier Inc.

email: [email protected]
EFA web page: http://www.efa.org.au