OTW Legal, jointly with Creative Commons Australia, contributed a Submission to the Australian Government’s Online Copyright Infringement Discussion Paper (available as a PDF) recommending against a proposal by the Australian government expanding the definition of “authorisation” liability for internet service providers. This would mean that, even if they couldn’t stop individual infringements by individual users, they could have to change how their services operated, such as by shutting off internet access for accused infringers or by filtering users’ activity.
As our submission states, “The Australian Government’s proposal poses significant risks to creativity, free expression, and the flow of information, knowledge, and culture. In practical terms, ISPs and other online intermediaries are not in a good position to monitor and enforce copyright infringement. Copyright law is complex, and many of the decisions intermediaries are being asked to make require difficult evaluations of fact and law. In particular, private intermediaries should not be tasked with identifying whether a given use is validly licensed or legitimately used under one of the limitations to copyright, including fair dealing.”
Our submission emphasised the complexities in takedown requests, citing multiple examples of improper takedowns under US DMCA regulation, including an instance in which “a frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.”
The Media, Entertainment, and Arts Alliance, although at first supporting the government’s proposal, later withdrew their support. “The MEAA represents a broad range of the creative industry including journalists, actors, dancers, photographers, and people in film and TV,” but “the union said in a statement that it did not intend to have its support for the government’s proposal to be intepreted as support for an internet filter.”
Dangers to innovation
The OTW’s position is that the Australian government’s proposal creates a chilling effect. “Notices that incorrectly allege infringement for legitimate expression” are likely to frighten “ordinary creators and users of copyright expression” into self-censorship. “Educational institutions in particular are likely to be extremely risk-averse, despite the importance of critical commentary and engagement with existing knowledge and cultural works to education.”
By putting an undue burden on individual users, “ordinary speakers who lack access to traditional publishing venues” are unlikely to have “legal training or resources to defend themselves. Thus they are likely to go unchallenged, and the relevant speech permanently suppressed. The problem is especially acute for marginalized speakers, such as women and people of colour, who already face cultural pressures against speaking out and are less likely to contest takedown notices.”
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