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Wednesday, 1 November 2006
Page: 38

Mr KERR (11:21 AM) —Copyright law is an essential protection for those in creative communities because it is the means by which their endeavours and artistic creations, their work, their productivity, become remunerated because their product is protected by law and the use of and copying of that product is not permitted otherwise than in accordance with the terms of the legislation. But what was once a relatively simple and easily understood field of law has become increasingly complex and dense over time.

I was responsible for what I hoped to be some simplification of the law when I commissioned, as the Minister for Justice, the copyright convergence report which tried to ensure that we expressed the obligations of the copyright law in media neutral terms so that it applied irrespective as to whether a work was produced on paper or electronically and recognised that, as we moved into an increasingly converging world, our legislation also had to adapt and be responsive to it. I recognise that, since that time, much has changed in the legislative field and much has been necessary in relation to that change, but one of the unfortunate things that has happened alongside this change is that we have not simplified the law; we have made the law much more complex, much more dense.

One requires scholarship of an inordinately high degree to simply understand what the basic obligations are in a number of areas. It is increasingly a field dominated by specialist lawyers and one which the ordinary layperson is likely to find themselves entirely excluded from understanding. That is the case with the Copyright Amendment Bill 2006 we are addressing today. The legislation we address today largely arises out of the obligations that we accepted when we entered into the US free trade agreement.

I was privileged to serve on the House of Representatives committee which reported to the government on the exceptions that should apply so that Australian consumers would not have their access to material which was previously permitted to be reproduced without restriction restricted further by the free trade agreement. But of course the free trade agreement had to be taken into account and it imposed obligations on Australia. Interposing, might I say that it is ironic that, despite all the talk about how the free trade agreement was going to benefit Australia, since its passage the terms of trade in Australia-US trade have turned against Australia. We have less trade with the United States than we had previously; the United States has more trade with us than it had previously. Economically the good that was supposed to be had—the billions of dollars of enhancement that our economy was supposed to receive in relation to be free trade agreement—has proved to be a chimera. Certainly, to date, notwithstanding the appointment of Austrade officers across the United States to deal with the upsurge of interest in that country in Australian exports, sadly, quite the opposite has occurred.

It must, at least I hope, be cause for some second reflection for those who so passionately argued the case that this would open up the opportunity for a large trade advance for Australia—if indeed the pattern does not change soon. We get these things oversold to us far too often and I think we were oversold the benefits of the free trade agreement with the United States. But, nonetheless, one of the areas that we have to adapt to now is to the changes in the copyright regime.

I regret that the government has not picked up in their entirety the recommendations made to it by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report Review of technological protection measures exceptions. The government’s response has been tabled with the legislation. It picks up perhaps two-thirds of the recommendations of the House of Representatives committee and rejects about one-third. But key amongst those propositions which it rejects are those of the underlying philosophy of approach. Our recommendations 8 and 9 were that the government adopt an approach, which we set out in our report at paragraphs 3.55 to 3.64, in relation to the ‘particular class of works, performances or phonograms’ criteria in article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement when preparing the implementing legislation; and further that the government adopt the committee’s approach, set out in paragraphs 3.87 to 3.96 of the report, to the credibly demonstrated actual or likely adverse impact criterion in article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement when preparing the implementing legislation.

The government, rejecting those propositions, took alternative advice including the advice of its own advisers in relation to the Vienna Convention on the Law of Treaties and has substituted an alternative set of approaches. That set of approaches is far more prescriptive. It is less sensitive to Australian interests and those that the committee proposed. I remind members of the House that the parliamentary committee is a committee chaired by a government member, made up of a majority of government members, but which, on this occasion, made, I think, a unanimous report. I certainly do not recall any dissent from the ultimate report. It was a report that dealt, I thought, in a very timely way with very complex matters and the balance that we had proposed was one which was in Australia’s interests. I rather regret that those particular recommendations, were not proceeded with. Indeed, I think it will create difficulties in the future because, wherever else in their response to our recommendations that the government have said, ‘We don’t believe that the evidential base or necessity for a particular exception has yet been established,’ they refer back to that criteria as having to be met before reconsideration would be given. That sets a bar that I think is too high.

The specific matters where I welcome the approach of the government is where they have agreed that the code arrangements on disks which try to limit the utilisation of those disks to particular geographical areas will not be regarded as technological bars that are privileged under the agreement. In other words, you can legitimately purchase and use devices to ensure that, if you buy a CD or a DVD which is geographically designated to play in only a particular region, you can play it in Australia. That is a smart acceptance of a recommendation that we put forward.

We were also keen to see the government look at format shifting in a much more comprehensive way. We made recommendations suggesting that be looked at because, in a world of convergence, people format-shift. It is quite a legitimate thing to do. The government has said that it will look at this further, but there was a key opportunity missed here and it will be hard to deal with it in the future because, if we do not set it up at the beginning, there is always going to be immense pressure from the owners of copyright to prevent there being further exceptions because they generate their remuneration from it.

I started out saying that it is perfectly legitimate and proper to have copyright laws to protect the intellectual property and creativity of those in the production of works and, indeed, those down the chain who produce, license and sell copyrighted materials. But, on the other hand, there is a very substantial public interest. Our committee said that there was a public interest in making certain that people can use these materials without undue restraint. The government really ought to know, and does know, that format shifting is something that Australians do routinely. To the extent that it is a technical breach of the copyright laws, we have missed an opportunity to tidy them up and to specify where those limits are in a practical way, consistent with what I believe to be the spirit of the US free trade agreement. That opportunity was not taken.

I also regret that our recommendation 27 in paragraph 4.169 was not taken up. That was that the proposed exceptions to liability for circumvention for fair dealing with copyright material for criticism, review, news reporting, judicial proceedings and professional advice, and the inclusion of copyright material in broadcasts and the reproduction of copyright material for broadcasting, be included as permitted exceptions. The government did not accept our recommendation for fair dealing with copyright material for criticism, review, news reporting, judicial proceedings and professional advice. The argument that the government made that the evidence did not sustain the case is just nonsense. It recognises that submissions were made but, for reasons which I find completely unfathomable, it says that it did not meet the requirements of article 17.4.7(e)(viii). I have already expressed my concern that the government rejected our in-principle approach to that article and how it should be applied. I think that is a matter of considerable regret but, even on the terms of the government’s own alternative formulation, how it could reach the conclusion that those particular matters should not be legitimate is beyond me.

I understand that this legislation will do nothing to improve the clarity, the ease of access or the capacity to understand copyright legislation. Copyright legislation now is a bugger’s muddle as far as the ordinary citizen is concerned. It is impossible to understand, dense and impenetrable. Some of that complexity is unavoidable. At a future date, one would hope we have the opportunity—if we are not too constrained by extra treaty legislation obligations that we accept—to run a bright line through all this and clarify it so that we can get back to simplified legislation that expresses the fundamental principles with less impenetrability and less complexity. That may be an idle dream, because every dot and comma in copyright legislation is potentially worth hundreds of thousands if not millions of dollars to owners of copyright entitlements, but it is an attempt that should be made and certainly the fundamental principles of copyright law have been obscured for a very long time in a mass of detail.

This legislation does not improve that situation. It is not bad legislation; it is not immoral legislation. It is a fair attempt to deal with some of the issues that were thrown up by the treaty, and the treaty itself imposed some complexities. I regret that the government did not take the philosophical approach that we recommended in relation to the exceptions that are permitted. There still remain a number of areas where people will return in the future to look at particular exceptions that are appropriate or may be appropriate for addition at a later stage. I think the government has created a framework that will be hard to operate and difficult to apply in terms of those future reviews. But I conclude by acknowledging that the government did accept two-thirds of the recommendations of our committee, so I should give it two-thirds of the credit for goodwill in relation to the process and restrict my criticisms to a modest level, given that circumstance.

I know that this is not an easy area; I have had ministerial responsibility for it. I do not pretend that at the time of my leaving office copyright law was less complex than it had been when I started. In fact, I think that I was probably one of the people who started out with a starry-eyed idea that we could have a simplification and move to a media neutral approach, deal with convergence and do it all in a way that would be relatively accessible. I think we did at least get to a media neutral convergence approach, but it was not any more accessible; it was more complex. The pattern of increasing complexity has continued, and this legislation now is so dense that I think the attempt of parliamentarians to come to grips with it, unless they spend a very considerable period of time examining it with the benefit of expert advice, is limited. That is true of any artist or any creative person. It is true of those entering into the business of licensing copyright materials or selling it, retailing it. Certainly it is not legislation that invites you to understand the principles at first blush and on first reading. It is very dense and very difficult.

I thank the government for having the good grace to pick up the majority of the recommendations of our committee’s response. I leave on record the criticisms about the basic approach to the exceptions in the legislation, and I would hope that at some stage someone wiser than I or those who have had charge of this matter in the past will find a way to express the key principles of copyright law a little more simply and a little more accessibly, because if we keep going this way we will have something rivalling the tax act in its size for copyright law, and the basic underlying objectives will be lost in a maze of detail.