If you are thinking of creating your own hosting platform to allow user-generated content to be uploaded and shared, you should be aware of the potential risks from copyright infringing content.

If your platform allows users to upload copyright infringing content for others to use, this might expose the host to liability if the host is deemed to have ‘authorised’ the infringement. Whether or not the host has ‘authorised’ copyright infringement will depend on a number of factors including:

  • the extent of the host's power to prevent infringement
  • the nature of the relationship between the host and its users
  • whether the host took any reasonable steps to prevent infringing conduct.

Safe harbour protections

The Copyright Act contains safe harbour protections for carriage service providers such as Internet infrastructure providers and ISPs.

To qualify these organisations must implement mechanisms to enable copyright owners to report infringing content on their platforms and request that action is taken to prevent the infringement (for example disabling access to the content or terminating the accounts of infringing users).

On 29 December 2018 the Copyright Amendment (Service Providers) Act 2017 (Cth) came into force. It aims to extend safe harbour protections to broader categories of service providers in the disability, education, library, archive and cultural sector. Crucially for start-ups this protection does not extend to commercial content service providers who host platforms in Australia. 

Limiting your risk

It is good practice to voluntarily implement IP infringement policies in line with the type of online activity or business you are undertaking. 

Major content providers operating in Australia will often have a formal ‘takedown’ procedure for copyright owners to request the removal of infringing content. Other providers adopt similar policies either as a means of shielding themselves from liability or simply to avoid being unwittingly involved in infringement disputes.

Electronic payment providers might also offer similar policies for reporting vendors who utilise their payment services for the sale of infringing material.

For more information see the Department of Communications and the Arts. Also see the approach to safe harbour in the United States.