G’Day! Since there’s so much gloomy news here in the States, I thought I’d take a moment to note that Australia did a couple of pretty cool things recently. They legalized same-sex marriage, so good on them for that. And on the 6th of this month, they introduced a safe harbors provision to their copyright law that would exclude platform providers like Google and Facebook. The new copyright liability shield would extend to carriage service providers, academic and cultural institutions, and organizations for the disabled. If the bill passes as is, the legislation could prove instructive if and when the U.S. resumes debate on revision of its own safe harbor provisions.
The internet giants have strenuously lobbied the Australian government to adopt blanket safe harbors akin to those in Section 512 of the U.S. DMCA. Naturally, they’ve repeated the standard arguments that the liability shield against copyright infringement, established in this country in 1998, remains essential for free speech and the continued innovation of web platforms. (What other argument do they ever make?)
Rights holders in the U.S., perhaps most prominently independent musicians, have tried for years to describe how the DMCA’s safe harbor provisions have had the unintended consequence of enabling the major—otherwise legal—platforms to profit from mass copyright infringement. As described in detail in several posts, the most obvious example is YouTube, which grew to its monopsony position partly on the backs of creators whose works were constantly uploaded to the platform without license.
Because copyrighted works are uploaded by users, a platform like YouTube remains shielded from liability but still free to reap the rewards of traffic driven by the high volume of infringement. The fundamental flaw in the policy should be obvious: where a corporation has both financial incentive and zero liability, it’s probably going to make some effort to profit from whatever conduct was supposed to be mitigated by the policy. Both the harm done to creators and the untouchable market dominance of YouTube are unintended results of the safe harbor provisions in the DMCA.
Although presently overshadowed by more serious policy issues (and the circus), when Congress first took up review of the Copyright Act in 2013 and the Copyright Office last year began review of the DMCA, many independent artists and rights groups began to amplify the message that revision of Section 512 is long overdue. In response, the internet industry and the familiar network of “digital rights” groups began promoting the counter-message that the status quo of the safe harbor is essential to (say it with me) free speech and innovation. And this is on top of the widely-promoted fallacy that the DMCA has predominantly been abused by rights holders to stifle speech, even where no infringement exists.
The Australian bill may yet change, but if their more narrowly tailored safe harbor provision becomes law, it could be instructive to the American creative community, if we resume discussion about Section 512 of the DMCA. At the moment, it feels quaintly optimistic to imagine standing on the other side of so much political chaos with a still-extant republic in which to debate copyright law, but one must keep hope alive I suppose. In the meantime, what’s intriguing about Australia’s legislative process on this matter is that their bill reflects an effort to balance the intent of safe harbors with effective copyright protection—but with a contemporary understanding of online infringement that simply did not exist in the U.S. in the 1990s. At the very least, it’s encouraging to see legislators draw a sharp distinction between public-serving, cultural institutions and the world’s largest, for-profit tech giants. For far too long, we in the States have allowed Google & Friends to blur those lines.
© 2017, David Newhoff. All rights reserved.