In accordance with principles, assume an e-commerce website offers products bearing both infringing and non-infringing works uploaded by independent designers, for which its claims a commission or service fee. If 90% of the products sold on this online marketplace were products bearing non-infringing works (so that only 10% of its products offered bore infringing works), one would think its primary purpose is not to infringe copyright and therefore not caught by the online infringement legislation. However, if such a website earned service fees for hosting the online marketplace and made 90% of its total income from the 10% infringing products of all products offered, then in my opinion, it is very arguable that that online store has as its primary purpose, copyright infringement. Schedule 2 Limitation on remedies available against service providers – In general terms, the proposed amendment in Schedule 2 has the effect of extending the safe harbour provisions currently limited only to a “carriage service provider”, defined by reference to the Telecommunications Act 1997 (Cth), to a wider range of persons. The issue is whether by the removal of the requirement that the beneficiaries of the safe harbour provisions will no longer need to have the nexus with the telecommunications legislation, the use of the same terminology for the activities carried on, will inadvertently encompass a wider group than actually intended. Specifically, whether e-commerce locations using a business model identified later in this submission will obtain the benefit of the safe harbour provisions. The gist of the concern in this submission therefore, is that the safe harbour provisions are not extended to e-commerce websites. Such concern is not assisted or clarified by the definition proposed to be inserted for the term provider” or the Questions”. “service “Guiding The concern is heightened in that this amendment might be seen as part of a harmonisation process with the United States. Whilst the Guiding Questions state that the definition of provider’ is adopted from the ‘service Australia-United States Free Trade Agreement (“AUSFTA”) and Article 18.81 of the Trans Pacific Partnership Free Trade Agreement, the definition reflects the definition introduced by the US Digital Millennium Copyright Act 1998.
In accordance with principles, assume an e-commerce website offers products bearing both infringing and non-infringing works uploaded by independent designers, for which its claims a commission or service fee. If 90% of the products sold on this online marketplace were products bearing non-infringing works (so that only 10% of its products offered bore infringing works), one would think its primary purpose is not to infringe copyright and therefore not caught by the online infringement legislation. However, if such a website earned service fees for hosting the online marketplace and made 90% of its total income from the 10% infringing products of all products offered, then in my opinion, it is very arguable that that online store has as its primary purpose, copyright infringement. Schedule 2 – Limitation on remedies available against service providers In general terms, the proposed amendment in Schedule 2 has the effect of extending the safe harbour provisions currently limited only to a “carriage service provider”, defined by reference to the Telecommunications Act 1997 (Cth), to a wider range of persons. The issue is whether by the removal of the requirement that the beneficiaries of the safe harbour provisions will no longer need to have the nexus with the telecommunications legislation, the use of the same terminology for the activities carried on, will inadvertently encompass a wider group than actually intended. Specifically, whether e-commerce locations using a business model identified later in this submission will obtain the benefit of the safe harbour provisions. The gist of the concern in this submission therefore, is that the safe harbour provisions are not extended to e-commerce websites. Such concern is not assisted or clarified by the definition proposed to be inserted for the term “service provider” or the “Guiding Questions”. The concern is heightened in that this amendment might be seen as part of a harmonisation process with the United States. Whilst the Guiding Questions state that the definition of ‘service provider’ is adopted from the Australia-United States Free Trade Agreement (“AUSFTA”) and Article 18.81 of the Trans Pacific Partnership Free Trade Agreement, the definition reflects the definition introduced by the US Digital Millennium Copyright Act 1998.
dimitrios-eliades.docx