The Australian government has proposed a number of options for expanding the liability of ISPs for the online copyright infringements of their customers.

In a Discussion Paper released on 30 July 2014, the government identifies various options for reducing online copyright infringement – the following two of which impact negatively on ISPs:

• amending the provisions on authorisation infringement, to require consideration of the extent to which the ISP is complying with an industry scheme or a prescribed measure; and
• enabling copyright holders to seek an injunction requiring an ISP to block access to an overseas site, where the dominant purpose of the site is to infringe copyright.

The first of these proposals is consistent with the government’s previously-expressed preference for stakeholders to reach agreement on how to apportion responsibility for minimising online infringement.  By including “a prescribed measure” as one of the factors to be considered in determining authorisation liability, the government is holding out the threat of imposing its own version of a “three-strikes” system if ISPs can’t agree with rights holders on an industry scheme.

The second of these proposals mirrors the approach adopted in the UK and other European countries, pursuant to art. 8(3) of the EU Copyright Harmonisation Directive.

Also included in the Options Paper is a long-standing earlier proposal to extend the “safe harbour” provisions to a wider range of Internet service providers – in particular, to entities that provide access other than to the public, such as universities.