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Emerging Issues in Copyright Law

  1. Open Access
  2. Safe Harbours and Website Blocking
    1. Safe Harbours Scheme
    2. Website Blocking
  3. Copyright in Databases and Compilations
  4. The Internet of Things
  5. VPNs and Geo-blocking
  6. Let’s Play Videos

There are many emerging issues in copyright law. The majority of these issues arise due to changes in technology and social norms. This chapter explores some of the prominent issues in copyright law today.

Open Access

Open access to information and knowledge is a central issue in the copyright space. According to the Scholarly Publishing and Academic Resources Coalition (SPARC), “[o]pen access is the free, immediate, online availability of research articles combined with the rights to use these articles fully in the digital environment. Open Access is the needed modern update for the communication of research that fully utili[s]es the Internet for what it was originally built to do— accelerate research”. 1

For more information view the SPARC Open Access Factsheet

Video overview by Nick Shockey and Jonathan Eisen on What is open access? licensed under CC-BY.

Safe Harbours and Website Blocking

Safe Harbours Scheme

The Safe Harbours scheme was introduced in Australia in 2005 as part of the implementation of the Australia-US Free Trade Agreement. The Safe Harbour scheme provides an incentive for service providers to establish efficient mechanisms for the removal from their platforms of material that infringes copyright. In return, service providers are protected from liability relating to any such infringement. See Electronic Frontiers Australia, ‘Safe Harbours’ Policy Position 2017 2

Under the Copyright Amendment (Service Providers) Act 2018 Australian disability organisations, education providers and cultural institutions will now be covered by the copyright safe harbour scheme, which will protect them from being held liable when their online services – from public access computers to digital hubs – are used by others to infringe copyright. According to the Australian Digital Alliance, “[e]xtending the scheme means these organisations now have the same legal protection as commercial ISPs, providing them with a more certain and supportive legal environment and allowing them to confidently provide more innovative services.”

“Bringing these organisations into the safe harbour scheme will also improve the system for Australian creators to take down infringing materials while also ensuring users of these services are guaranteed a right of appeal. It’s a win for all involved.”

For more information see the Australian Digital Alliance’s Press Release, Extension of Safe Harbour Welcomed as an Incremental Step

Website Blocking

In terms of website blocking, in November 2018 Australia passed the The Copyright Amendment (Online Infringement) Act 2018. This Act updates the Copyright Act 1968 (Cth) with a new provision making it easier for rights holders to obtain an injunction to block foreign based piracy websites.

The amendment expands the scope of Australia’s online copyright infringement scheme by:

  • amending the threshold for capturing overseas online locations to those with the primary purpose or effect of infringing copyright;
  • reducing the evidentiary burden on copyright owners;
  • enabling copyright owners to seek injunctions requiring online search engine providers to take such steps as the Federal Court considers reasonable so as not to provide search results that refer users to online locations blocked under the scheme;
  • clarifying that the Federal Court may make blocking orders which follow copyright infringing activity where operators of an overseas online location attempt to avoid the application of an injunction by creating new pathways to online locations; and
  • enabling the minister to declare that particular online search engine providers be exempt from the scheme.

According to the Australian Digital Alliance, the new provision poses concerns as, “the government has removed important public interest protections from the legislation, dangerously lowering the bar set by the scheme, and putting legitimate sites and the legitimate activities of the public at risk”.

For more information on the amendment seeGovernment Drops Public Interest Safeguards from Website Blocking.

It is becoming increasingly difficult to determine situations where human authors exist, especially in light of computer programs and the increasing popularity of using AI technology in creations. As discussed in earlier chapters, copyright subsists only in works that are original, meaning originate from an author/s.

Video overview by Isabeau Williams on Human Authors and Copyright in Databases and Compilations

Correction to video Australian law does not require a ‘creative spark’ for originality.

The Internet of Things

The Internet of Things (IoT) is digitised inter - connectivity of products and programs, people and places. It is essentially, the concept of connecting devices “with an on and off switch to the Internet”. [^AUTOREPLACEDJaconMorganASimpleExplanationOfTheInternetOfThings2014ForbesENDREPLACE] The idea underling the IoT is that this network of physical devices, coupled with embedded electronics, software, etc will enable a higher level of efficiency, increased economic benefits, and reduced human exertions. [^AUTOREPLACEDJaconMorganASimpleExplanationOfTheInternetOfThings2014ForbesENDREPLACE]: Jacon Morgan, ‘A Simple Explanation Of ‘The Internet Of Things’ (2014), Forbes

Video overview by Charmaine Cowan on The Internet of Things.

VPNs and Geo-blocking

Geo-blocking is technology that restricts access to Internet content based upon the user’s geographical location. There are circumvention measures such as Virtual Protection Networks (VPN) that can be used to work around geo-blocking to allow access to the geo blocked content.

This type of activity is becoming more popular when trying to access content that is not currently available in Australia. For instance, when using a streaming service to access films, “Australian consumers can only access one third of the films available to American consumers…” 3

A VPN can be used to reroute an IP address to ‘trick’ servers into thinking the geographic location of the IP address is in the US as opposed to Australia. This allows the person in Australia to access US content via the VPN.

The legality of VPN’s under Australian law is a prominent issue.

Video overview by Mitch Hughes onGeoblocking and Netflix.

Let’s Play Videos

Producing ‘lets play videos’ involves a person recording themselves playing a video game online and uploading this to the internet (such as YouTube).

These videos involve the recording of computer content where the player adds value through commentary and is sometimes accompanied by an image of the player.

The question is, does this type of content (when uploaded to the internet), infringe copyright?

It is proposed that this type of activity potentially infringes the owners exclusive right to communicate the work to the public.

The below video explores some of the issues involved in Let’s play videos.

Video overview by Guy the law guy on Lets play videos.

  1. SPARC, Open Access, 

  2. Information taken from the Electronic Frontiers Australia, ‘Safe Harbours’ Policy Position 2017 CC-BY 

  3. Suzor, Nicolas P., Van Geelen, Tess, Pappalardo, Kylie M., Burgess, Jean, Wikstrom, Patrik, & Ventura-Rodriguez, Yanery (2017) Australian consumer access to digital content. Australian Communications Consumer Action Network