Are trade agreements setting our domestic copyright policy? The case-study of intermediary liability

By Andrew Reid and Trish Hepworth

Effective responses to online copyright infringement are a hot topic, with countries around the world working out the best way to curb piracy without placing undue burdens on consumers and internet intermediaries. However our flexibility to consider new or novel approaches to the issue is being curtailed as we sign up to prescriptive Free Trade Agreements (FTAs) which detail the response deemed 'appropriate' at the time.  

The biggest of these FTAs is the Trans-Pacific Partnership (TPP).  The lastest negotiation round for this 12 state FTA wrapped up in Ottawa on July 12 without any sign of progress. The Canadian Government has a brief (4 sentence) summary of the meeting noting the working groups that met, including Intellectual Property (IP). No announcements indicating resolution of contentious issues were made, but then again, the TPP negotiations are always shrouded in secrecy. 

The only real insight the broader community has had into the IP negotiations was with the leak of the IP chapter by Wikileaks last year.  From that leak civil society became aware of some potentially damaging text around intermediary liability.  Using the opportunity presented by the Ottawa round, the Australian Digital Alliance (ADA) joined more than 40 organisations in signing an open letter to negotiators highlighting concerns. As the letter notes:

We are worried about language that would force service providers throughout the region to monitor and police their users actions on the internet, pass on automatic takedown notices, block websites and disconnect internet users.  Irresponsible rightsholders can burden intermediaries with many thousands of automated takedown requests every day, using systems that operate with little or no human oversight. 

Burdening these service providers with these new liabilities could also add new costs that may be passed on to internet users. 

A fact sheet attached to the open letter notes the so-called “notice and takedown” systems have led to legitimate content being removed in the US.  These are inevitable risks of any system that adopts a “takedown first and ask questions later” approach to content alleged to breach copyright. Even more concerning are suggestions that there is a push for a “notice and staydown” system that offers little to no recourse for users to challenge assertions of infringement and restore their legitimate content.

Forcing ISPs to enforce a 'three strikes' or 'graduated response' would pose problems for countries such as Canada, which has spent many years consulting on a 'notice and notice' system that is about to start operation.  The concerns were outlined by academic Michael Geist at a lunch organised for the negotiators in Ottawa.    

Intermediary liability is in focus in Australia, following the signing of another Free Trade Agreement (FTA) with Korea (KAFTA).  The leading Australian authority on intermediary liability is the 2012 High Court Judgement in Roadshow Films Pty Ltd & others v iiNet Ltd, which  found iiNet was not liable for authorising the actions of its' users in that case. However the National Interest Analysis provided to support ratification of KAFTA states that this is inconsistent with our FTA obligations.

The Joint Standing Committee on Treaties (JSCOT) held a public hearing on 14 July where this issue was raised, and academic experts could not point to any academic studies supporting this claim. Unfortunately the hearing ran out of time before the Department of Foreign Affairs and Trade could appear to explain the reasoning behind the statement.  Professor Kim Weatherall, EFA and the ADA have all made submissions noting that they disagree with the conclusion that the iiNet decision puts us in breach of our international obligations. 

We are also waiting on guidance on how exactly it’s envisioned the act will be changes.  Any changes to authorisation liability could have unforeseen consequences for intermediaries such as schools, universities, libraries and internet platforms, especially in light the safe harbour provisions available in Australia being less generous than those in comparable countries such as the USA. This has been an ongoing issue in the implementation of AUSFTA and was the subject of an AGD review in 2011.  However the results of that consultation are still to see the light of day.

At the 14 July hearings on KAFTA the Australian Chamber of Commerce raised concerns about the benefits of trade agreements being lost to the compliance burden placed on industry. ADA has the similar concerns about the copyright elements of these agreements, with overlapping provisions causing confusion for little apparent benefit. The ADA agrees with the 2010 Productivity Commission Report on Bilateral and Regional Trade Agreements, which recommended:

“ Australia should not generally seek to include IP provisions in further BRTAs, and that any IP provisions that are proposed for a particular agreement should only be included after an economic assessment of the impacts, including on consumers, in Australia and partner countries.”

As we continue the hearings into KAFTA, and continue our negotiations on the TPP, these are words we hope are heeded.  

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