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Wednesday, 29 November 2006
Page: 34

Senator LUDWIG (12:03 PM) —In terms of the Copyright Amendment Bill 2006, we have seen an extraordinarily short Senate process. As manager—I would like to put on that hat for a moment—this demonstrates a flawed process in respect of this bill. The government has brought a bill forward to deal with copyright. It has had copyright issues for some time now. It has looked at digital review and it has looked at the copyright issue over the last couple of years. It has looked at the USFTA issue and what copyright changes were needed for that. It has also continued them. But it has produced what you could only describe as an omnibus bill very late in this sitting and put together a very short process for the Senate—and even the House of Representatives—to consider.

The Senate committee to which this bill was referred produced, I think, a good report in a very short space of time. But you only have to look at that process: it produced a wide range of views and many submissions in respect of this issue. By and large, they are divergent views. You normally find a theme running through many of the submissions about opposing sections or supporting others; in this process there were many complex submissions on a wide variety of issues which provided different views about different issues within different clauses.

Even after the committee had had a hearing and finalised its deliberations, submissions were still coming in and people were still lobbying by sending in additional issues about this or that. It was quite surprising because it demonstrates that this government failed to adequately consult and drive this agenda forward properly. I think it was a case of this government finding it all too hard. It threw its hands up in the air and said: ‘This is actually too hard, so we’ll put forward the Copyright Amendment Bill 2006. We’ll throw these provisions together. It should satisfy some, not all. It might fix up parts but not everything, and we’ll see if we can get it out of the way before Christmas.’ That seems to be what this government’s agenda has been.

The committee process was useful though because it flushed out some of the problems and demonstrated the very rushed nature of this, and it identified the really hard issues and how to handle them. It also provided a list of recommendations that would go a long way to making this bill a better bill. We are pleased—although I use that term guardedly—that the government are picking up some of the major recommendations, particularly those relating to strict liability, but I do not think they have gone quite far enough.

We are disappointed that the government have indicated they will not support all the amendments. During the committee stage we will be moving amendments to pick up some of the matters and recommendations that this government failed to adequately address in the bill, which arose out the committee process. They should have done that, quite frankly, if they were a real government with a real agenda to improve copyright reform, especially in the areas of strict liability and the TPM. Our amendments are consistent with the Senate committee. We have not gone into as much detail as we would have if we had had sufficient time. Because of this rushed process there will be limited opportunity.

Although Labor decided to improve the bill, we are not entirely convinced that it is the best way forward, because if this government were serious about copyright reform they would have gone back to the drawing board and talked far more with the constituents. Not only do they have their own concerns but there are consumer concerns and stakeholder concerns about how this bill will operate not only in the market but also in private institutions, in libraries, in educational institutions—all the way through.

But, given the current law, the government has an option to stick with what is effectively an exceptions regime rather than look at the fair use options. This bill still has some important components. It seeks to address some of what you would say are the hard issues, some of the niggling yet substantial problems. The bill will fix a range of issues that confront ordinary consumers. It may not fix them in the way everyone would want, but it certainly goes some way to address the concerns that ordinary consumers might have, particularly libraries and educational institutions. In that, it is a good thing, because the submissions that the Senate committee had in that area demonstrated their concerns about how this bill would actually operate; that it would have a negative impact upon their operations.

There are two real major issues which seem to come through this bill: if we can fix the issue of format shifting and time shifting then everyone is fine. Unfortunately, because of the nature of this omnibus bill, that is not enough, and the government should have taken a leaf out of Mr Hockey’s book. When faced with quite a difficult decision with a families bill, he decided to go back to the drawing board and have another look. Whereas with this Mr Ruddock is clearly of the view that he will drive forward because those two major issues are important. Ultimately we agree that they are important and that they need to be dealt with.

Through the amendments, the bill also significantly tidies up many of the provisions that the original drafters missed, left out, could not see in the first place or simply made mistakes about. It is a technical area—there is no argument about that—but the drafters, the people driving this bill, have in part let the standard drop a little in how they arrived at the original bill. When you look at all the different submissions that were brought forward, they either had not engaged adequately with them or ignored them. I foreshadow I will be moving a second reading amendment to this bill.

In truth, that sums up what I have been saying. But the general comment I want to emphasise is that we are trying to work with the government to improve this bill, notwithstanding what I have said and notwithstanding the botched process this government has engaged in. I am confident—maybe not that confident—that the government has taken a big picture approach in dealing with this. It is one of those areas where you might say the government is trying to be tricky because almost no-one with a vested interest in the debate comes away feeling satisfied that issues have been aired, fully considered and dealt with in a considered way by this government. That should be a disappointment to the government; it is certainly a disappointment to me.

Our desire though is driven by a couple of issues. Firstly, it is designed to protect ordinary consumers and educational institutions. That is our first priority, and it is a reasonable priority to adopt. Secondly, it is designed to ensure that creators of copyright material or innovators of technology can get proper remuneration and have sufficient control of their material, but through use that allows more innovation. That is one of the overriding issues this government has not looked at seriously enough.

But dealing with some of the schedules—schedule 1, criminal law and strict liability—the committee recommended that the government really should go away and have another look at that area. I do not think that there was sufficient evidence or a convincing argument presented by the government to maintain strict liability. They have removed it for consumers and I am not convinced that it will not have unintended consequences for the remaining strict liability provisions. There are many strict liability provisions in this bill with far-reaching consequences and they provide significant changes. In terms of consumer impact, it might be that the worst consequences have now been removed, but there are still the unintended consequences of how the others will operate in the marketplace, and the Australian Federal Police especially, those people charged with enforcing the law, really reserved their view about it because they had not been—as I think the record shows—consulted sufficiently to ensure that there is a working model of how the government will use its powers to enforce copyright. The Senate committee came to a similar view and will be moving amendments in the committee stage to bring the committee recommendation forward.

The government does have time. It is not linked to the Australia-US Free Trade Agreement and does not need to be proceeded with at this point. The government can come back with a model that will benefit consumers, stakeholders and owners of copyright with a proper enforcement regime, and a proper way of ensuring that they get compliance especially with the balance for consumers and the ability to use exceptions to utilise the regime. Ultimately that is what you need to be able to achieve out of this legislation. The exceptions to infringement of copyright in this area of the government’s latest amendment are a vast improvement. But still tinkering with a regime that makes our laws inevitably more complex rather than easier and clearer still remains a concern to Labor.

In terms of clear provisions, support for format shifting is a no-brainer. There should be clear unambiguous provisions for the use of this technology. It is aimed for time shifting but I think even in that area the drafters have not grasped all of the issues that surround that. I guess in time shifting there still remains the anomaly where the copy must be made in domestic premises. I think this misses the reality of what the daily lives of people entail. There may be instances where people will copy a tape at work and not have that objected to by the business or the person, and it would be difficult to prove that an offence has taken place. But ultimately that in itself creates a distraction, because there should be clarity. If you are going to bring in law that allows consumers to do (a), (b) or (c), then there should be clarity about how they do it. You should not simply try to confine it to an area which even of itself becomes a little bit difficult to single out and where consumers might find it hard to understand. Good laws are ones which are clear and easily understood and where consumers know whether they are on the right side or the wrong side, and they can then act accordingly.

As for copying for preservation purposes and going to three copies instead of one, that is sensible. But I wonder why you did not pick up on UNESCO which said four copies. Was it a matter of splitting the difference and picking three? It does not make sense, quite frankly. Maybe during the committee stage you will be able to explain where you got the three from and why you say it makes perfect sense. We will have an opportunity to do that then.

In the matter of the definition of key cultural institutions using regulation power, yes, it does allow flexibility. I cannot always be confident that regulations are the right way of dealing with these things, but if you ensure that the ABC, the SBS and the AFC and institutions like that are dealt with appropriately and fairly in the regulations, good. If you squib on it, bad. It is about ensuring that the regulations allow flexibility so that the debate is not about which institution should or should not be in; it is about ensuring that key cultural institutions are included. It would have been preferable to see it in legislation so that we could then test that. In this instance we will have to wait for the regulations and then we will get an opportunity to comment on that at that time as well.

Schedule 8 deals with the response to the digital agenda review. If you look at the communications in the course of educational instructions and caching, we are aware of a compromise position negotiated between the CAG and screenwriters, and I am not sure whether that has been finalised yet or whether that is still ongoing. This is the problem and I think it is the sharp end of where this government has failed to ensure that its bill is watertight, logical and coherent, and has the support of industry to move forward. Mistakes in this will cause costs to be unfairly distributed, and that is a point that you cannot lose sight of in this legislation. Mistakes that you make will cause costs to be generated in business, in industry and in educational institutions as people try to litigate to find out what the intention was—and that should be avoided at all cost.

Schedule 11 deals with the copyright tribunal and record keeping for educational institutions. It appears that we have got to a compromise with a regime which is workable, but I still worry whether the AVCC have had an opportunity to raise their issues and to ensure that the schedule will meet the needs of the AVCC and others in the industry. Looking at schedule 12, the TPMs, the technological protection measures, you still have not followed the original advice and have departed from it again. There is a concern that in doing that you really have made it much broader than what was originally intended. If you look at the recommendations by the House committee and now the Senate committee, I think it is important to keep the distinction between TPMs and copyright, otherwise you can and will have unintended consequences and there will be litigation, and you will be imposing costs on the litigants. Unequal bargaining positions will arise and people will use these unintended consequences to give them an advantage and countermeasures will be brought in by business. We will then have a new round, I think, all created by the unintended consequences. I could be wrong about that—I hope I am—because business wants certainty in this area. This seems to be a late change that really failed to get full support, which is a shame.

There are of course some Democrat amendments, which we will deal with in the committee stage, so I will not deal with them in this second reading debate. Overall, I think the tone of this debate and this bill match. I think the government have done a lot of work on getting it right. What we are worried about is that you still have not taken up all the committee recommendations to improve the bill, to make it as good as it should be. We will be moving an amendment to give you another opportunity to look at them in the clear light of day, to see if you can be persuaded to adopt those recommendations which will improve the bill overall. On the whole, though, in terms of ensuring consumer protection, the government get a tick; in dealing with all the broader issues, you get a cross. (Time expired)

The ACTING DEPUTY PRESIDENT (Senator Barnett)—Senator Ludwig, just to clarify: have you moved, or would you like to move, your amendment?

Senator LUDWIG —I thought I had.

The ACTING DEPUTY PRESIDENT —You foreshadowed it. I thought I would draw it to your attention.

Senator LUDWIG —I move:

At the end of the motion, add  “but the Senate:

(a)   notes:

(i)   the rushed and inadequate process for drafting this bill and its numerous amendments, allowing little time for detailed analysis of its provisions by industry, experts and consumers;

(ii)   notes the Government’s decision to not adopt a general “fair use” provision, thereby focussing debate on the detailed exceptions and necessitating a stifling policy decision which limits format shifting to current, but not emerging technologies;

(iii)   notes the initial far reaching strict liability provisions (which the Government has itself recognised needed to be dropped) but flags concerns that other unintended consequences may unfairly penalise consumers;

(iv)   notes the concerns of the internet industry about unintended consequences of this bill;

(v)   notes the need for a strong public education campaign about copyright laws;

(vi)   notes the Government’s failure to include the recommended two year review in the legislation; and

(b)   expresses grave reservations, despite a number of positive aspects of the bill, that the overall package it cumbersome, complex and confusing”.