At a glance
There are many who believe that Australia’s 20th century laws are not fit for 21st century digital realities. The law has not yet recognised that the online world is just too complex and convoluted to police using the time-honoured methods.
One particular 2017 Federal Court of Australia case has highlighted how archaic the laws are. In Pokémon Company International, Inc. v Redbubble Ltd, Pokémon alleged that Australian internet marketplace Redbubble had infringed Pokémon’s copyright by commercially benefiting from using various Pokémon characters.
Redbubble provides an online platform for artists to upload images from third-party content creators and place them on products such as T-shirts. Among the images uploaded to its website were Pokémon characters such as Pikachu.
If this had happened in the US or the EU, the following would have likely played out: once notified of the copyright infringement, Redbubble would be immune from litigation if it removed the copyrighted material expeditiously upon notification.
These are known as safe-harbour protections. Australian law offered the company no such protection. Pokémon was able to sue Redbubble in Australia.
"Such is the volume of content uploaded to our platform, it’s technically impossible and impracticable to determine if some content is infringing [copyright] or not.”
When the case came to court last year, Pokémon was awarded a mere A$1 in damages. Redbubble, it was judged, had infringed copyright but had removed the infringing material expeditiously and there was little evidence that it had greatly profited from its actions. Pokémon is appealing the ruling.
“Such is the volume of content uploaded to our platform, it’s technically impossible and impracticable to determine if some content is infringing [copyright] or not,” says Redbubble’s in-house counsel, Paul Gordon.
“Even if something looks like it might be infringing [copyright], unless the platform is put on notice that the relevant copyright holder considers that we are infringing [its rights], we’re not going to know what their approach to enforcement is likely to be.
“Some rights holders don’t enforce rights as much as others and, of course, some of those who upload content may have a licence to do so.”
The letter of the safe-harbour law
What is missing here? Australian law offers safe-harbour protections only to internet service providers such as Telstra and Optus, but not to platform providers like Redbubble, YouTube or Facebook. Instead of extending protection to “service providers”, as the US law does, Australia gives protection to “carriage service providers” as defined in the Telecommunications Act.
Australia’s Federal Parliament could have widened the safe-harbour provision when it passed the Copyright Amendment (Service Providers) Bill 2017 in June 2018, but it did not grant internet players and start-ups the safe-harbour provisions they desired.
Archives, cultural institutions and educational institutions, as well as organisations assisting persons with a disability, were included and thus granted greater legal flexibility to remove offending material.
Not everyone believes that internet players should be added to the safe-harbour list. Vanessa Hutley, general manager at Music Rights Australia, says there was bipartisan political support to extend the safe-harbour provisions – but not to commercial organisations.
“It’s a clear case where consultation and discussion created the correct balance,” Hutley says. “The institutions and associations the Bill covers often act as passive conduits for copyright material and they shouldn’t be held liable for the actions of others if they act responsibly and remove the infringing material.”
Add commercial platforms into the mix and it’s a slippery slope, she argues. “When they have had this ability, they have exploited it in the context of commercial negotiations.
“It means that rights holders – recording artists, publishers and songwriters – are not paid a fair commercial price when material appears on [these] platforms.”
Getting the bill
Selwyn Black, copyright expert and partner at Carroll & O’Dea Lawyers, recognises that the new Bill, despite extending safe harbour, remains a significant competitive disadvantage for Australian businesses. It fails to offer protection where it is needed the most – for the platform providers and start-up community.
Yet Black also understands the content creators’ viewpoint. Safe harbours, while not an excuse to infringe copyright, do make transgressions easier. If the safe-harbour provisions were broadened and more organisations achieved greater safety under their legal umbrella, the onus would fall on the content creator to point the finger at the infringers, not on the infringers who currently take on the risk of being held liable, he says.
“I think the current legislation had this in mind – parliament has said ‘we’d rather dissuade the platforms from feeling safe using a safe harbour, than create an obligation on the artists who traditionally struggle to make money from their material’.
“If we get less disclosure of those breaching copyright by giving them wider safe harbours, we’ll have every man and his dog infringing copyright. Then this becomes a far worse issue."
