Google still searching for copyright safe harbour provision

In an environment where large technology companies strive to satisfy and prosper from consumers’ insatiable appetite for online media, companies like eBay and Google have been campaigning for the copyright safe harbour provision to be extended to their technology platforms.

The copyright safe harbour provision currently protects internet service providers and Telcos like Telstra and Optus from litigation if their users break the law using internet or telephone services. eBay, Google, and companies alike are seeking amendments to copyright laws to widen safe-harbour provisions to include online businesses.

In their submission to the Productivity Commission’s inquiry into Australia’s intellectual property regime (in March 2015 available here), Google’s concerns prey on the notion the current copyright regime is impeding Australia’s ability to innovate, in effect stagnating the progression of the digital economy. Although this may be true from a multinational perspective as they seek to exploit those in the entertainment and media industry, critics of the provision argue the claim of companies like Google are masking the true function of the laws: artists lose out whilst technology companies keep winning.



In a startling illustration, Johnathan Taplin of The Australian outlined the effect of the laws on artists should they be implemented in Australia as they are in the USA. It is no surprise Google are front and centre of this push for the provision, as their music and video streaming platform YouTube is now the world’s dominant audio streaming platform, dwarfing all other streaming services. YouTube only pay their artists less than US$1 per year for every user of recorded music, as a direct consequence of its users engaging in rampant pirating. By way of example, the song Drag me Down by One Direction appeared on YouTube 2700 before the service was asked to take down unlicensed copies. Whilst these pirated version were eventually taken down from the site, in effect what happens is the artist receives no revenue from the users streaming their music, yet YouTube continue to make their billions in advertising revenue. In perhaps the most shocking illustration of the effect of pirating, artists made more money through vinyl sales last year than YouTube streaming services (despite billions of music streams)!

By comparison, legitimate streaming services like Spotify go further to generate legitimate income for artists, and this is recognised by Spotify licensing their music and pays artists around US$20 per year per user (although Spotify is not without its controversies, also accused of underpaying artists in a bad blood feud led by Taylor Swift).

The copyright safe harbour provision has been in place in the USA since 1998 as part of the Digital Millenium Copyright Act. Its original intention was to protect service providers when they were unwittingly used as a platform for illegal acts of their consumers. The provision today provides near immunity for these service providers. So the current function of the Act goes beyond the intention as these provisions were designed for an age where service providers could not technologically protect themselves if they unknowingly profited from the illegal actions of their consumers. This is clearly no longer the case as strides in technology enable YouTube and similar platforms to put a curb stop to this pirate behaviour. Basic “digital fingerprinting” technology has the capability to cleanse YouTube and its search results of illegal versions. Creators either enter into licensing agreements with YouTube at very low royalty rates, or they face their work being rampantly pirated.

If Google are successful in their lobbying of the Australian Government to change the copyright laws, it could see an outdated concept implemented in an age where service providers do have the technological capability to protect themselves, missing the original intent of the provision. Should the laws be adapted in Australia one would hope these considerations are strongly considered by legislators.