Unis fear copyright lawsuits

Universities could be sued by rights holders if changes to Australia's copyright enforcement regime go ahead, Universities Australia warns

A government proposal to "clarify" whether Internet service providers can be considered to have authorised online copyright infringement by their customers has alarmed universities.

Peak body Universities Australia and Group of Eight Australia (Go8) have both indicated opposition to a proposal contained in the government's discussion paper on reforming copyright enforcement.

The Go8's members comprise the Australian National University, University of Adelaide, University of NSW, University of Sydney, University of Melbourne, Monash University, University of Queensland and University of Western Australia.

The government's discussion paper argues that "even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement."

"Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia’s international obligations," the paper states.

In its submission (PDF) to the copyright consultation, Universities Australia said it was "greatly concerned" about the extension of authorisation liability.

The changes would not only apply to commercial ISPs, the organisation argued.

"They would, if implemented, also extend to universities and others entities that provide Internet access on a non-commercial basis for publicly beneficial purposes," its response states.

The proposal would "potentially expose Australian universities to a significantly greater risk of being sued by rights holders for infringements made by students or staff who use university facilities and IT systems".

Read more: Copyright conflict: Who pays still a sticking point for rights holders, ISPs

The change would "severely effect" universities ability to conduct research and educate students.

"We fail to see how extending authorisation liability can have any effect on a sector that is already demonstrating effective regulation of this issue [copyright infringement] other than to create an overly burdensome environment that could severely hamper its capacity to operate effectively in a globally competitive marketplace," states the Go8's own response (PDF) to the government discussion paper.

"Furthermore, the resultant rise in red tape that would inevitably accompany such a move is in direct contrast to the government’s commitment to reduce this burden."

Both Universities Australia and the Go8 back the extension of copyright safe harbour provisions also canvassed in the government discussion paper.

The government discussion paper noted that currently organisations such as universities are not covered by safe harbour provisions because they don't provide internet access "to the public".

The government has proposed changing the safe harbour provisions, which can potentially prevent an organisation from facing monetary penalties in relation to copyright infringement, in the Copyright Act so that they apply to "service providers" more generally.

"Even under the law of authorisation as it currently operates, the extremely large volume of Internet traffic carried by universities makes them particularly vulnerable to actions by copyright owners in respect of alleged infringing conduct by staff and students using university IT systems," Universities Australia's submission states.

"Universities Australia submits that it is entirely appropriate that universities be extended the same protection as is currently afforded to commercial ISPs."

Although outside the scope of the government's current proposals to reform copyright enforcement, both organisations have called for broader changes to copyright law.

Unlike universities in the US, Australian universities do not have a fair use exception in copyright law that they can rely on when conducting research-related activities such as data mining, Universities Australia argued.

The Go8 submission also called for the introduction of a fair use provision in Australian law.

Follow Rohan on Twitter: @rohan_p

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