Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours)

Document type
Legislation
Country
Safe harbours for intermediaries were introduced as part of the Australia - United States Free Trade Agreement (Ch 17) by the US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9 and amended by the Copyright Legislation Amendment Act 2004 (Cth) Sch 1. The safe harbours largely follow the structure of 17 USC 512, although they have been substantially redrafted. The safe harbours limit the liability for intermediaries to injunctive relief for transmission, caching, hosting, and indexing activities (Section 116AG). The conditions imposed on intermediaries seeking to rely on the safe harbours include a reasonably implemented termination policy for repeat infringers and a notice and takedown regime (Section 116AH(1)). The equivalent of US vicarious liability, expressed as a “financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity” is expressly excluded from the scope of the hosting and indexing safe harbours (Section 116AH(1)). Importantly, the safe harbours only apply to Internet Service Providers (defined as ‘Carriage Service Providers’ under the Telecommunications Act 1997 (Cth) s 87.)
Country
Year
2004
Topic, claim, or defense
Copyright
Document type
Legislation
Issuing entity
Legislative Branch
Type of service provider
Internet Access Provider (Including Mobile)
Issues addressed
Trigger for OSP obligations
OSP obligation considered
Block or Remove
Account Termination
Type of law
Civil
General effect on immunity
Strengthens Immunity
General intermediary liability model
Takedown/Act Upon Knowledge (Includes Notice and Takedown)