Published on the 05/07/2018 | Written by Jonathan Cotton

What will it take for the Australian government to actually protect Australian tech companies?…

Last Wednesday the government passed the Copyright Amendment (Service Providers) Bill 2017, expanding the country’s safe harbour provisions for a range of organisations, but crucially, not for tech companies.

Politics being what it is, minister for communications and the brain behind the ‘reforms’, Senator Mitch Fifield, is calling it a victory: “The safe harbour scheme will protect these sectors from legal liability where they can demonstrate they have taken reasonable steps to reduce copyright infringement on their online systems or networks,” he says.

“The successful passage of the Bill is the result of extensive consultation with copyright users and rights holders. The Government is continuing to work with stakeholders on a number of other copyright modernisation reforms” his office said in a statement.

But frankly there’s little to love here. Shadow minister of the digital economy Ed Husic certainly had some shade to throw, saying startups and tech-centric firms will lose out, and accusing the communications minister of lacking “the wit, the wherewithal or the courage” to extend safe harbour protections to those groups.

He’s got a point: It really does seem that the inclusion of provisions for tech and online companies has been relegated to the ‘too hard basket’, despite years of lobbying and even official recommendations from the Productivity Commission.

The Australian Digital Alliance, while supportive of the incremental steps taken to protect disability organisations, education providers and cultural institutions, also expressed concern at the lack of protection for Australian technology companies: “This is an important first step in the process of updating safe harbour”, says Jessica Coates, the Alliance’s executive officer, “but Australia technology companies are still exposed to greater risk than their international counterparts.”

“Australian companies are being sued right now, spending hundreds of thousands of dollars in court even when they have been acting as model corporate citizens.”

“We hope the Government will honour their commitment to modernise the Australian copyright system, including creating a comprehensive safe harbour scheme that provides the same protections to all online service providers.

So what gives? Likely corporate pressure. When the government proposed passing legislation that would protect platforms featuring user-generated content earlier this year, its resolve disappeared in the face of lobbying from content-heavy industry players such as Australian Recording Industry Association, Foxtel, and News Corp.

And the sway these companies enjoy shouldn’t be underestimated. When the Productivity Commission proposed sweeping changes to copyright law last year, the Motion Picture Association of America spit the figurative dummy, condemning the recommendations for their “breathtaking lack of understanding” of international norms around content and warned that “local policymakers should take care to ensure that Australia’s vibrant market is not inadvertently impaired and that any proposed relaxation of copyright and related rights protection does not violate Australia’s international obligations.”

It’s certainly a polarised debate – so where does the truth lie?

Well it’s definitely a mess. Without the appropriate laws to deal with online platforms, user generated content and internet use in general, Australian innovation, technology and fledgling businesses will most certainly suffer – there are no two ways about it.

Despite reactionary statements to the contrary, it’s not about favouring one party – it’s about creating sensible, equitable laws that protect artists while also fostering innovation. It will be tricky to satisfy all parties, but an equitable arrangement for everybody is achievable – with a little political will.

But as it stands – and it stands with Australia the only country in the OECD without such provisions – the government should be called to task for its inaction.