In Australia, however, a perceived drafting error in the implementation of the Australia – US Free Trade Agreement (AUSFTA) means that safe harbor provisions only apply to commercial Internet service providers.
As a result, Google, Facebook, YouTube and similar platforms face copyright uncertainty, a tenuous position also suffered by schools, universities, museums, libraries and archives.
If proposed amendments to the Copyright Act are adopted, all of the above will receive enhanced safe harbor protections and the country into be brought into compliance with AUSFTA. Instead, however, battle lines are being drawn, with technology companies on one side and heavily copyright-reliant entities on the other.
Today it’s the turn of Getty Images to throw its hat into the ring. Getty has been embroiled in dozens of copyright lawsuits in its history so is well aware of the difficulties its business can encounter. It’s also strongly against safe harbors that would allow companies like Google to use its images in search results, for example, without having to shoulder any liability.
Speaking with The Australian (paywall), Getty Images’ general counsel Yoko Miyashita says that safe harbors have been ruthlessly exploited by online platforms and actually make it harder for copyright holders to protect their rights.
“Here in the US the safe harbors were intended to provide strong incentives for online service providers and copyright holders to co-operate to detect and deal with copyright infringements … but that has never materialized,” Miyashita says.
“There is no incentive for co-operation. The safe harbors are instead used by service providers as a shield and an excuse for doing nothing to detect or prevent copyright infringement.”
When service providers become aware that their platforms are being used for infringement in a specific case, it’s argued that they are required to take remedial action to bring them into compliance and maintain their safe harbor protections.
But for the Getty general counsel, all this does is force technology platforms to look even further in the opposite direction to avoid knowledge, rather than getting sucked into a copyright minefield. Becoming involved in steps to prevent piracy can even mean they become further exposed.
“In fact, we have seen that service providers risk greater liability if they take steps to detect and prevent infringements, so they are encouraged to stick their head in the sand,” Miyashita said.
While the music, movie and TV show companies have their specific complaints against Google, Getty Images feels it is particularly exposed by the search giant’s actions. While movies and TV shows are largely streamed or downloaded from third-party sites to which Google merely links, Getty’s images appear in results themselves, ready to be shared with others with a couple of clicks.
Results can be taken down of course, but the onus lies with copyright holders to take action in each and every case, something which sees Google process millions of takedown notices every week.
“Each of those reports represents an instance where copyright holders were not compensated for use of their works,” Miyashita notes.
“This shows not only the burden on copyright holders to identify infringements and prepare and send notices…but also the lack of respect for copyright which has been fuelled in large part by the safe harbors.”
That Getty Images should single out Google in the safe harbor debate comes as no surprise, as the companies rarely see eye to eye when it comes to the use of Getty’s images.
Last year the stock photograph outfit filed a complaint with the European Union’s antitrust commission, claiming that Google is engaged in piracy of its content. Getty told the EU that Google undermines its business by utilizing Getty stock images in a manner that “siphons traffic” away from the Getty’s own website.
Considering that safe harbor provisions are standard across Europe and the United States, the battle underway in Australia is something of an anomaly.
That being said, the fact that Australia-based technology companies are now being forced to fight entertainment and heavily copyright-dependent industries to achieve their goals is nothing new and is only likely to drive the parties apart – or investment away.
At the moment the momentum is in favor of safe harbor introduction, but things are only just getting heated up and are far from over.