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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS - 15/11/2005 - Review of technological protection measures exceptions

CHAIRMAN —Welcome. Although the committee does not require you to give evidence under oath, these proceedings are proceedings of the parliament and there are sanctions in the event of people not treating these proceedings in that way. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. Your submission has been received by the committee. It has been authorised for publication. I invite you to give us a brief opening statement of maybe five or 10 minutes and then we may, if necessary, proceed to questions.

Ms Flahvin —I will start by thanking the committee for hearing us today. FLAG, the Flexible Learning Advisory Group, is the lead national body on flexible learning and e-learning in the VET, vocational education and training, sector. FLAG is an advisory group to the Department of Education, Science and Training and other government bodies on issues relating to flexible learning and e-learning. The VET sector comprises approximately 1,900 colleges, TAFEs, centres of community education, industry training bodies, RTOs—registered training organisations—and that kind of thing. There are 1.7 million students. So we are talking about a very large part of the education sector in Australia.

As we point out in our submission, FLAG is not here today to argue against the ability of copyright owners to take appropriate action to prevent infringements of their copyright material. FLAG acknowledges that, in the digital age, technological protection measures are an appropriate response to the risk of infringements taking place. We are here, though, to urge that the committee be cognisant of the fact that the anticircumvention provisions should be about preventing infringements rather than preventing access for the purpose of engaging in uses which, under the existing copyright law, are non-infringing. I note with interest that DCITA stresses that point a few times throughout its submission, and FLAG would very much like to stress that point as well.

Jamie Wodetzki made the point about the High Court’s decision in Sony and Stevens. It is interesting, I think, to take account of the fact that the lead judgments made the point that their criticism of the Court of Appeal’s decision in Sony and Stevens was that the court was seeking there to extend copyright—to allow the TPM provisions in the act to be used to extend copyright. The High Court was critical of that conduct. Justice Kirby went further and flagged the possibility of a constitutional challenge to a law which had the effect of taking away the right of a person who has legitimately obtained property to use that property in a way which the Copyright Act would otherwise allow.

We would also urge the committee to be cognisant of the experience in the US under the Digital Millennium Copyright Act. We have the benefit now of having seen the DMCA in implementation and some of the problems that have been experienced as a result of that legislation. Jamie referred to some of them and also to the way in which the US courts have appeared to be willing to rein in some of those excesses—notwithstanding that, on its face, it would appear to allow TPMs to be used to lock up works which would not otherwise be subject to copyright. So the courts have come in to save the day, if you like, in the States. One important point to make is that US courts have a history of judicial activism that Australian courts do not necessarily have, so it might be a mistake to take the view that if the legislators do not get it right we can rely on the courts to fix the problem. I do not think that would be an appropriate approach.

I would like to stress again that copyright law is all about striking a balance between the interests of owners and users. There is some discussion in some of the submissions that are before you, the Copyright Agency Ltd submission in particular, which paint a picture which, in our view, is quite misleading. There is a discussion there about anticircumvention devices and services being akin to bolt cutters and about the TPM provisions being all about the right of property owners to protect their property from thieves armed with bolt cutters.

In our view, that is a highly misleading take on what copyright is all about. Copyright has never been about an exclusive grant to copyright owners. The grant of copyright has always been subject to exceptions and limitations, and those exceptions and limitations are an integrally important part of the copyright balance in Australia. Our concern is that the anticircumvention provisions, as proposed, in the absence of appropriate exceptions have a very real potential—in fact, in every likelihood—that will radically shift that balance, undermine those exceptions and render them totally otiose.

The other thing I would say today is that the education sector is different. That has been recognised by our legislature. The educational statutory licences contained in parts VA and VB of the Copyright Act are very much a recognition of the fact that the education sector serves an important public purpose in this country. Those educational statutory licences were introduced with a view to ensuring that the sector has ready and cost-effective access to copyright material. It is important to keep in mind that that access—the access that educational institutions can currently take advantage of under those educational statutory licences—is paid for. We are not talking about free exceptions here—this is quite a different scenario to fair dealing, for example.

Educational institutions pay vast amounts of money every year to be able to take advantage of these licences, so the legislative intent was to make it easy and to make it cost-effective. Those licences are subject to very strictly enforced obligations, and there is a very long history of educational institutions complying with those obligations. They include, first of all, paying equitable remuneration—the Copyright Tribunal determines what a fair thing is if the parties cannot agree. Copies which are made are subject to the requirement that they include a notice to users reminding the user of the limitations and the rights of the copyright owner. There are limits on how much can be copied under the part VB licence, the print and graphic licence—generally, speaking only 10 per cent of a work can be copied. We are not talking about the whole work unless we are talking about journal articles. The copying is for educational purposes only. The copies cannot be provided to anybody other than a student or a staff member in an educational institution. The institution is obliged to restrict access. So we are talking about checks and balances which are put in place. There is a very long history of those checks and balances working appropriately. There is no history of there being significant breaches of those checks and balances.

We would like to say that educational institutions can be trusted. The idea that they ought not to have an exception to the anticircumvention provisions seems to us to amount to a radical overkill, if you like. The harm that would be caused to the sector is completely out of perspective to the perceived risk or to the actual risk. There is no real evidence that—in extending an exception to educational institutions for the purposes of, in particular, accessing works under parts VA and VB of the act—there is any real risk of those copies falling into the hands of copyright pirates. Nobody has ever suggested that universities, educational institutions, TAFEs et cetera are likely to engage in that kind of activity nor would I say has it been credibly suggested that allowing students and staff members in those institutions to copy pursuant to these licences is likely to lead to copies falling into the hands of pirates.

Finally, I would like to point out that in submissions to the two committees inquiring into the free trade agreement, the Joint Standing Committee on Treaties and the Senate Foreign Affairs,  Defence and Trade References Committee, the Department of Foreign Affairs and Trade gave express assurances to both committees that the concerns that had been expressed by the educational sector with respect to the provisions that we are talking about today were misplaced and that the free trade agreement provisions—the TPM provisions, in particular—were flexible enough to allow for provisions that were sensitive to the Australian legislative regime to be formulated. We urge the committee to remind the government of those assurances and to live up to those assurances.

Mr MELHAM —We can chase that up. Have you got original copies?

Ms Flahvin —I can send you copies of the two submissions. We can follow up on that.

Mr MELHAM —I am one who always likes to have the original copy in front of me.

Ms Flahvin —We are happy to do that. The other thing that we point out is that the JSCOT in particular, in its own report, stressed the importance of—

Mr MELHAM —Could you point us to exactly where in the report? I think that is important.

CHAIRMAN —A number of the submissions we got suggested that the free trade agreement somewhat changes the balance in favour of owners as opposed to users. From what you were saying, it would seem that you share that view?

Ms Flahvin —Absolutely, in the sense that we have stated. Under the current TPM regime—I think Jamie pointed out that it was under section 116A of the act—for a start, there is no prohibition on use. The prohibition is limited to commercial supply of circumvention devices and services, so we have a proposed new prohibition on use. Under the existing regime, there are exceptions and, most importantly for our purposes today, an exception for educational institutions exercising their Part VB rights, their right to copy and communicate works for the educational purposes of those institutions without seeking the permission of the copyright owner. As I have said, that is an activity that they pay money for.

CHAIRMAN —I suppose, not unnaturally, when you look at the submissions we have received, you see that those from people broadly representing copyright owners seem to want us to minimise the exceptions and those who represent users want a more generous approach. There seems to be some suggestion—and I think you made this suggestion yourself—that the free trade agreement restricts what can already be done under the current law.

Ms Flahvin —Yes and no. The provision that is the subject of this review, the provision in the free trade agreement which allows for further exceptions to be crafted, in our view very clearly accommodates the kinds of exceptions that we have set out in our submission.

CHAIRMAN —I think you mentioned in your submission some concern about students with disabilities? Could you elaborate?

Ms Flahvin —Kate, would you like to answer that?

Ms Fannon —Yes. We already have the Disability Discrimination Act 1992 and subsequently, the Disability Discrimination Amendment (Education Standards) Bill 2004 went through parliament last year. They put an obligation on educational institutions to give equitable access to curriculum and support to students, whether they have a disability or not. Anybody who has worked in education will know that the majority of resources and materials that are developed in the world are not accessible to people with a disability, so there is a quandary. What happens is that that material has to be reformatted. The technological protection measures technologies are going to be rapidly increasing, changing and becoming more complex. Because of free trade, people are going to use them more extensively, in ways that we can not even conceive at the present time. Yet the legislation will lock us in to a scenario which we have not grasped yet, because it will be ever-evolving. That will have maximum effect on people with disabilities. If something is formatted so that it is only in audio, someone who is hearing impaired is locked out. If we can have access to that and reformat it then we fulfil our obligations under the law. I can give you lots of scenarios, such as with screen readers and so on for students with disabilities. But there is a quandary: one piece of legislation is working against another piece. We heard before from Jamie about interoperability of technical standards. There needs to be some interoperability between legislation too. That is a problem.

CHAIRMAN —This is not directly relevant, but what proportion of students would you say have a disability of some sort?

Ms Flahvin —Off the top of my head I could not give you a figure, but I am sure we would be able to get access to that information.

CHAIRMAN —It is probably higher than we would think.

Ms Fannon —It is probably higher. They say that, across the board, 18 per cent of Australian students have a disability. That also includes people in wheelchairs et cetera. For FLAG we are talking particularly about flexible learning and e-learning. So we are looking at students who cannot access the current written, audio or video formats, depending on their sight, hearing and maybe intellectual disabilities. We are looking at where the content has to be reformatted to be accessible.

Ms Flahvin —One thing to note is that the existing educational statutory licence regime, part VB, does specifically allow for educational institutions to engage in quite a lot of that kind of copying and communication for people with intellectual and other kinds of disability.

Mr MELHAM —I notice that the free trade agreement says:

Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, archive, educational institution, or public non-commercial broadcasting entity.

I suppose what you are saying to us is that you just want to see the status quo maintained?

Ms Flahvin —That is absolutely what we are saying. The balance that has been struck as a result of detailed policy discussions and debate is about to be tossed out.

Mr MELHAM —And your view is that the balance can be maintained and that is consistent with the particular sections in the free trade agreement.

Ms Flahvin —Yes, it is. There is nothing on the face of the free trade agreement, in our view, that would prevent the government from implementing the exceptions which we have sought.

CHAIRMAN —Yes, because we cannot vary the free trade agreement.

Ms Flahvin —We absolutely understand that. The other interesting point to note is that some of the copyright owners submissions—I am thinking of the CAL, Copyright Agency Ltd, submission and the Copyright Council’s submission—from memory, take a much narrower view, a narrower construction, of the language that the government is required to grapple with in implementing these exceptions than, for example, the submission by the Attorney-General’s Department. One thing I would say to the committee is the construction that is preferred by the Attorney-General’s Department to some of those questions is the one which we would prefer.

Ms PANOPOULOS —You mentioned in your submission the need for ad hoc exceptions and changing technology and suggested that the four-yearly review is inadequate.

Ms Flahvin —There are two things to say. We think there is nothing on the face of the free trade agreement which limits the review period to being four-yearly. All it says is that there needs to be a review at least every four years. From memory, either the Attorney-General’s Department submission or the DCITA submission makes the same point. I think it is Attorney-General’s Department’s, from memory. We would agree with that interpretation, that construction. But flowing from that, it is perfectly obvious that the rate of technological change is so rapid that, if we were to say that there would not be a review before the end of the four years, we are quite likely to see enormous changes and unforseen consequences in that period and we would have no mechanism for addressing those unforseen consequences.

Ms PANOPOULOS —Do you have any suggestions about what should trigger this process for, I suppose, ad hoc reviews and ad hoc exceptions?

Ms Flahvin —It is something that we could give a little bit more thought to and provide a further submission in respect of. Off the top of my head, one thing that occurs to us is that perhaps the Attorney-General’s Department would be an appropriate body for receiving submissions and perhaps forming a view from time to time as to whether or not there was a need for some further consideration or an interim review.

CHAIRMAN —We have had varying evidence with respect to whether the Copyright Tribunal is the right place for this review process. Some people have said that because it is chaired by a Federal Court judge it is too legalistic and it is inadequately resourced. In another country—I think it is the United States—it takes about three months to get a determination, whereas here it is well over 12 months.

Ms Flahvin —Absolutely.

CHAIRMAN —Other people felt that it would be better to go straight to the Attorney-General’s Department. What is your view?

Ms Flahvin —FLAG’s view is that going straight to the Attorney-General’s Department makes more sense than charging the Copyright Tribunal with that task. There are two reasons for that. One, which you have just mentioned, is timeliness. Experience tells us that things take a long time to work their way through the Copyright Tribunal. The very reason that we are suggesting ad hoc reviews is that we expect there to be a need on a regular basis to have a timely review. The other thing to say is that I agree with those submitters who have suggested that the Copyright Tribunal is not the appropriate forum for the reason that the president of the tribunal is a Federal Court judge. Judges are trained to, and do for most part, act judicially. The process that we are discussing here is, in my view, not a judicial process; it is a policy-making process.

CHAIRMAN —We were told yesterday that there is no requirement for the Copyright Tribunal to act like a court—

Ms Flahvin —But of course it does.

CHAIRMAN —but it tends to make use of the practices of the Federal Court.

Ms Flahvin —They are Federal Court judges. I have had considerable experience of appearing before the Copyright Tribunal. Notwithstanding that the rules say that the rules of evidence do not apply and we know that it is not a court but an administrative tribunal, let me tell you that everybody acts as though it is a court. Generally, unless it is a full tribunal, there is a Federal Court judge sitting up there—

CHAIRMAN —Looking like a judge.

Ms Flahvin —Looking and acting like a judge. He might be wearing a different hat but he is a judge nevertheless. Also, there is a potential conflict, isn’t there? Is there not a possibility that some of the questions of construction and interpretation might come before the Federal Court, with the real risk of embarrassment? In some respects it is no different from decisions of the Copyright Tribunal being appealed in the Federal Court. But it seems to me that it is so much a policy decision that we are talking about that it really does not seem appropriate to keep asking judges to do it.

CHAIRMAN —Again, this is not directly relevant, but do you think it is appropriate that the president of the tribunal is a judge? Who would be a more appropriate sort of person?

Ms Flahvin —For two reasons, I really think I would need to give that a little more consideration before I answer. Firstly, I am appearing here as an external legal adviser to a body whose views on that question I have not had an opportunity to canvass.

CHAIRMAN —It was an unfair question. I will withdraw the question. Until I read the submissions I had never heard of something called a ‘broadcast flag’. I notice that in your submission you discuss TPM controls on digital broadcasts. Yesterday we asked SBS whether they have any plans to have broadcast flags, and I got the impression that they do not at this stage. Do you know of any moves by any broadcasters to incorporate this sort of technology into Australian broadcasting?

Ms Flahvin —In Australia, no. I have not engaged in a detailed investigation of that in Australia. Our understanding, though, is that in the States this is increasingly a big issue, and there is absolutely no reason to think that it will not become the same kind of issue in Australia. The reason that we made that point in the submission was to say that section 116A at present does not include an exception for the purpose of engaging in rights to copy and communicate audiovisual works pursuant to the part VA licence. Part VA is the licence that allows educational institutions to copy and communicate broadcasts. Part VB allows them to copy and communicate print and graphic works. Currently, VA is not an exception to the anticircumvention provisions. Our view is that the reason that VA was not included was that at the time of those amendments to the act it really was not the case that TPMs were being used with respect to broadcasts. The broadcast flag issue in the States suggests that that is no longer the case. Whether or not it is happening here in Australia as we speak I am afraid I really cannot tell you, but I think that in every likelihood it will.

CHAIRMAN —Thank you very much for appearing before us this morning. We will send a draft of your evidence. Please check it, correct it if necessary and send it back. If you want to let us have more information in relation to our discussion this morning, feel free to send that information to the secretariat.

Ms Flahvin —Thank you.

CHAIRMAN —Thank you very much.

Proceedings suspended from 10.55 am to 11.08 am