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Wednesday, 29 November 2006
Page: 39

Senator BARTLETT (12:24 PM) —Can I say at the outset that the Democrats will support the second reading stage of the Copyright Amendment Bill 2006, but we do believe it needs significant amendment before it should be passed into law. I note that the government yesterday circulated 12 pages of amendments, a total of 63 amendments, and a supplementary explanatory memorandum that goes some way to addressing the many and varied concerns that were raised during the extremely brief investigation by the Senate Standing Committee on Legal and Constitutional Affairs into this legislation. The Democrats have also circulated one or two amendments; I will go to those shortly.

I think it does have to be put on the record how unsatisfactory this stage of the process is, as I unfortunately find myself saying far too often. The role of this chamber as a law-making body, as a legislature, is not being given due regard. I do not think it has ever really been given proper regard by the media or the general public. I think there is a lack of recognition of how important the law-making role of a house of parliament is. But that has deteriorated significantly since the government got control of the Senate. In most cases, though not all, I think it is seen as little more than an annoying, mildly irritating little process that we have to go through for form’s sake.

I do note that many components of this bill are the result of quite long periods of consultation. To be balanced, I congratulate the government on having conducted quite wide-ranging consultation—discussion papers, forums, exposure drafts and the like. But, having done all that, I think it makes it all the more unfortunate that when you get right to the pointy end, right to the crunch, we suddenly have this mad rush.

The simple fact is, as the evidence given by the department to the Senate committee inquiry showed, that there is no mad rush for the bulk of this legislation. The only components that do need to be put through before the end of the year are those that ensure compliance with the Australia-US Free Trade Agreement, and I will come back to that in a moment. But there are a range of other areas that are not linked to that and, from the point of view of getting it right—not having arguments about the policy intent but just getting the law right—we would all be much better served by it not being rushed. The entire Australian community and all of the many stakeholders in this law would be much better served if we could have scrutinised this properly to ensure that it was as close to right as possible before it became law. Whilst the key stakeholders are copyright holders in educational institutions, writers, performers, publishers, software companies and those sorts of groups, this law will affect in many ways the vast majority of the Australian community. This is complex copyright law, and in some ways it seems arcane copyright law, but it is not a matter that affects just a small percentage of people. It has a direct and significant impact on small but important sections of the community, including the education sector and a range of businesses. Its flow-on effects literally do affect the entire Australian community, so it is important that we get it right.

There is a growing indication, as increasingly shown in practice, that this government is more interested in getting things through than it is in getting things right. The Senate committee process that followed was derisory; it was little short of a disgrace. The people who contributed to the inquiry—the people in the community who have the expertise, who actually work with the law on a day-to-day basis, who know its practical implications—pretty much all said, without fail, that the process was seriously flawed in its failure to give adequate time to examine the legislation. So, whilst I think the Senate committee across-the-board, from all parties, did a very good job—as the legal and constitutional committee does almost without fail—it was still only able to look at the issues that were brought before it. I certainly have had people raise with me since then, as I imagine other senators have, issues that they did not get the opportunity to raise in full detail during the Senate inquiry process.

Senator Ludwig —It still hasn’t stopped.

Senator BARTLETT —We are still getting representations today—that is, responses to the government’s amendments.

The government forced us to table that report more than a week before the legislation came on for debate, truncating the already brief time by an extra week, so that they would have enough time to assess the report and to draft amendments if they felt it necessary. That is understandable; that is good. I am pleased that they want to fully consider the recommendations, and I am pleased that amendments have come through. But then, once again, the Senate, the stakeholders and the wider community, those with expertise, have to rush to look at the 63 amendments in the space of a day or so. It seems that the upper hand is continually with the government, the executive, the department, and that the community and the parliament are the ones who are always having to scramble to check whether or not things are properly drafted, whether they have the impact the government says they will and, indeed, whether or that that impact will be good.

The fact is we are still getting representations from people about matters that were not able to be raised in the committee hearing. It was only a one-day hearing; it was also held when the Senate was sitting, from memory, so it had that extra flaw, which is a continuing practice that, I must say, I am finding more and more frustrating. Even when we do have public hearings into detailed legislation, we are holding them when the Senate is sitting, when the attention of some senators, and the media and others, is focused on the chamber—not that the media is usually focused on the chamber, let alone committees, but it makes it even less likely that attention will be paid to the issues and concerns raised.

As I have said repeatedly, but it cannot be said often enough, time for adequate scrutiny is not just about senators being able to satisfy themselves that what is being put forward is good or bad and properly drafted and workable; it is also about ensuring wider community awareness, input and debate into issues so that things are not pushed through quickly without people being aware of what is happening and without the opportunity for issues that we might not have thought of to be put before us. There is a fair bit of talent in this Senate, in particular on the Senate Standing Committee on Legal and Constitutional Affairs, but we are not the font of all wisdom, particularly in an area as complex as copyright law. We need to have the time to hear from and cogitate upon the varying views.

In this area in particular, as we all know, there are a lot of stakeholders with competing interests, and you have to balance those up. In saying that, I appreciate that that reality makes life difficult for the government—in this area perhaps more than a lot of others. You really do have a lot of competing interests, and it is a matter of balancing all those interests—balancing the interests of the consumer with the interests of the copyright holder, the interests of the users and the institutions with those that sell product. That is always going to be a balancing act.

It is always going to mean some people are unhappy with the outcome. But when everybody is unhappy with the outcome, as they were in some areas of this legislation, I would suggest that if you upset everybody a little bit it does not mean—as the minister suggested—that you have probably got the balance right. I think it could just as easily mean if you upset everybody about it they all recognise that it is not workable for anybody. That was certainly the message that came through in the Senate committee inquiry.

Having said that, the government has produced a number of amendments that do go, to some extent, to the concerns raised. I acknowledge that, and I congratulate the minister for listening to at least some of the concerns that were raised. I will just quickly go through the bill, which has 12 main schedules, some of which contain stand-alone issues. A range of the amendments address copyright piracy. This is a difficult issue. It is very important to prevent what is theft from occurring. But you also do not want to structure the law in a way that people who are not seeking to profit inappropriately from using material get caught up in the laws. There are areas relating to criminal law, evidential presumptions, various technological definitions, civil remedies and commercial-scale online infringement with Customs seizure of imported infringing copies. All of these areas need reform, and we will look at the amendments that touch on them when we get to the committee stage.

Schedule 6 is very significant. It deals with exceptions to infringement of copyright. This includes areas like format shifting and time shifting and also so-called fair use provisions: the using of copyright material for various purposes by educational institutions, in particular—libraries, schools, archives and museums; so for non-commercial uses. It also covers use by people with a disability and use for comedy and satire. These are all areas that require some fine judgement. There are certainly some areas where the bulk of the evidence suggested that the government got it wrong. I think we have greater reason for concern particularly regarding issues that come to light late in the piece that had not been raised previously throughout all of the prolonged consultation periods.

Schedule 7 deals with clarifying who is the maker of communications. Schedule 8 contains some responses to the digital agenda review, which also follows on from quite a long consultation process and covers a range of different areas. There is another schedule dealing with unauthorised access to encoded broadcasts and another couple of schedules dealing with Copyright Tribunal amendments. Schedule 12 predominantly deals with the free trade agreement. There are amendments to implement measures relating to technological protection measures. As an aside, whilst we are now basically required to become compliant with the Australia-US Free Trade Agreement by the end of this year, the concerns that were raised about the technological protection measures changes went partly to their workability and the way they are framed but also partly to problems in the free trade agreement itself.

I am very disappointed that the area of the free trade agreement to do with intellectual property and copyright issues did not get the sort of scrutiny that I believed it merited. It is a complex area, but I thought that particular area of the free trade agreement demonstrated that the free trade agreement was not terribly accurately named, because in some aspects in this area it does not free up trade between Australia and the US. It actually constrains trade and competition and, in this area, it constrains it in favour of US corporations, which I think is unnecessary and unfortunate. The US is not necessarily world’s best practice when it comes to copyright, and I think it was very unfortunate that we locked ourselves into some of the measures that the US wanted. They are not world’s best practice but they are obviously a major player, and I do not think it helps to be required to align ourselves to some of their practices in some of those areas. That is quite a broad topic, so I will not go into it beyond that.

I also want to comment on one thing which was not in the legislation and is particularly frustrating for me; that is, the government’s commitment to remove the licence fee cap for the playing of sound recordings on commercial radio. The legislation before us, as I have said, is the result of a long period of consultation on a range of areas—fair use consultations, digital agenda consultations and free trade agreements. Consultation was also undertaken at the same time regarding whether or not there should be the removal of the cap on what commercial radio has to pay to play sound recordings—basically, to play music. At the very same time that the Attorney-General announced back on 14 May this year that he would be implementing many of the changes that are before us now in this legislation, he also said:

... the Government has agreed to remove the legislative cap on copyright licence fees paid by radio broadcasters for playing sound recordings. The one per cent cap was adopted in 1968 to protect radio broadcasters because they faced special economic difficulties at that time. Sound recording owners (mainly record companies and artists) and radio broadcasters, who operate in a profitable and robust industry, should be able to negotiate a market rate without legislative extension. If they can’t agree on fees, they can put their case to the independent Copyright Tribunal, like any other copyright owners and users.

I completely agree with that statement by the Attorney-General. That statement is government policy and it was a government promise; there was a cabinet decision.

At the Senate committee inquiry into this legislation, it was made clear by the department that the reason the government wanted to get all this through before the end of the year, not just the free trade agreement measures, was that they wanted to get through all the reform measures to the Copyright Act in one package. I can understand that. As long as you get it right, it is efficient—do the lot once, get it all out of the way and then people can get on with it. So why is that one very simple, very discrete measure, which was announced at the same time—it was a cabinet decision—and which was clearly justifiable on the evidence, not in this reform package? If it is not in this reform package then I would suggest that there is a very strong risk that it will not be implemented before the next election—and what will happen after the next election nobody knows. So this is the key opportunity to ensure the government implements its promise, its commitment and its cabinet decision. The Democrats will be moving an amendment to keep the government honest with regard to their announcement back on 14 May of this year.

There is no reason for this exception to exist. The exception discriminates against and economically harms artists and performers, in particular, as well as record companies, to the benefit of that section of commercial radio which plays music. There is no reason that they should be the sole exception. In Australia, users of copyright material pay fees or rates set by agreement with copyright owners or, if there cannot be any agreement, with the Copyright Tribunal on a fair market basis as determined by the tribunal without any statutory restrictions. The only exception is the broadcast licence fee for commercial radio stations, where they only have to pay up to one per cent of their overall revenue. That is completely unjust. Whatever circumstances may have existed back in 1968 to justify it, they do not exist now. It is a profitable industry, particularly given—as was, once again, clearly stated in evidence before the Senate committee inquiry—that other changes in this area, particularly to do with fair use, are likely to lead to a drop in revenue at least in an immediate sense for performers and artists.

So we are making changes that will reduce their income in one area. This would clearly balance that out. It is a cap on income, a key revenue stream for performers, particularly non-composers. I might have a bit of a bias here, having been a drummer myself in a previous life. Drummers tend not to get the songwriting credits, which is a complete injustice but that is the way of the world. That revenue stream for non-songwriting performers is critical, yet there is a price cap on what they can earn. There is no other area in copyright or anywhere else where there is that cap put on what people can earn. I cannot see why this is not put forward. There was no reason given at the Senate committee hearings as to why it was not put forward, other than the government has decided not to proceed with it now. I do not think that is justified, frankly. If there is any time to put this in, it is now, and I will seek to do that on behalf of the Democrats when we get to the committee stage of the debate.

In conclusion, I do think this is very important law, because of its complexity. Unfortunately, it does not get the attention it deserves, although it does impact on a wide range of people across the Australian community. Everybody, pretty much, consumes or uses material that has copyright involved in some way, shape or form but usually we do so unknowingly. We want to make sure that there are no inadvertent breaches. But there are a lot of key, immediate stakeholders, revenue streams, incomes, profitability, business opportunities and business barriers that all need to be factored in as well, and we need to get it right. With the amendments that are in this bill, we have got a bit closer to getting it right, but I think it needs further scrutiny. I look forward to doing that in the committee stage of the debate.

Debate interrupted.