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Wednesday, 29 November 2006
Page: 106

Senator CROSSIN (4:46 PM) —As a member of the Senate Standing Committee on Legal and Constitutional Affairs, I was involved in the committee’s inquiry into the Copyright Amendment Bill 2006. This bill introduces major reforms to Australia’s Copyright Act. Many of the proposed changes reflect the government’s numerous copyright law reviews of recent years, including the digital agenda review and the fair use review. Most of the provisions have been released as exposure drafts, but only the exposure draft on the technological protection measures was the subject of widespread consultation. As a result, the TPMs are generally considered satisfactory to most of the parties—consumer groups, copyright owners and collectors—although the Senate committee that I was involved in, in the inquiry we had, uncovered further concerns from academics and consumers. However, other provisions in the bill, such as some of the fair use changes, are the subject of widespread concern. Interested groups have highlighted significant drafting problems in addition to what they consider a number of unworkable policy positions. These groups all submitted to the Senate inquiry, and I understand they are continuing to liaise with the Attorney-General’s Department about proposed amendments.

The Senate Standing Committee on Legal and Constitutional Affairs conducted a short review of the legislation and made a number of unanimous recommendations, with additional comments from Labor senators, which I will go to in a few minutes. At the outset, I want to impress on people that there are major concerns regarding the adequacy of the inquiry, given the technical nature of the bill and the short time frame allocated. In fact, in the supplementary comments that the Labor senators provided to the Senate report, we made note of that:

… Labor Senators are of the view that the majority report does not place adequate emphasis on a number of significant matters.

The first and foremost of those was the short time frame set by the government for this inquiry. All the lobby groups and organisations that came to see me in a private capacity during the course of this inquiry—as they probably saw a number of senators, either from the opposition or the government side—absolutely stressed that there was not enough time for them to consider the detail of this legislation and its implications. They also made comments that they had seen an exposure draft but that the draft of this bill did not in any way replicate or transfer any of the clauses that were in the exposure draft. Many people made a comment to me that they felt they were starting from scratch.

In the Labor senators’ supplementary comments to the Senate committee report, we also said:

The Bill proposes major amendments to copyright law in Australia and raises many complex issues. Further, and predictably, the committee received a large volume of detailed and lengthy submissions. Labor Senators consider that the complex nature of the issues, coupled with the extremely short timeframe set by the Government for the inquiry, has seriously hampered the committee in its efforts to comprehensively consider, and report on, all the evidence before it.

It really does public policy in this country no benefit, with such a complex matter, for the Senate committee to have a very short time frame in which to conduct an inquiry and to be forced to pick and choose which groups would appear before us. We were so pressed for time that a number of groups had to appear together—three or four groups at a time in a one-hour time slot. It provided them with very little opportunity to present their case and it provided us with even less opportunity to quiz these people and get maximum benefit out of them in order to translate this legislation into something that is workable and achievable.

There are, of course, provisions in this bill that relate to the implementation of the Australia-United States Free Trade Agreement, and some would suggest that they are considered urgent. I think the time line for that introduction is around January. Ideally, consideration of several aspects of the bill should have been deferred until proper analysis and deliberation had taken place by all interested parties and by this parliament. At the outset, my view was that, if there are urgent provisions of this bill that need to be put through to comply with the Australia-US Free Trade Agreement, let us go ahead and do that, but we really should put the brakes on the rest of the consideration of this bill so that people have adequate time to look at it.

The bill attempts to keep pace with the needs of Australian copyright creators and copyright consumers and to address the new challenges and opportunities arising from digital and other new technologies. The government have presented this bill as a package of balanced and practical reforms, they would say, to address copyright piracy while also ensuring that ordinary consumers are not infringing the law through everyday use of copyright products that they have legitimately purchased.

The explanatory memorandum suggests that reforms in the bill have been guided by the following principle: the need for copyright to keep pace with developments in technology and rapidly changing consumer behaviour. Any of us who have teenagers will know that that is the case. Just as an aside, in a Senate committee I gave an example about using a vinyl record. When I got home, one of my kids said to me, ‘Mum, what on earth were you talking about?’ We talk about iPods and MP3 players now; we do not talk about records. We do not even talk about cassettes, to be honest. It will not be very long before we will not be talking about CDs.

The reforms also recognise reasonable consumer use of technology to enjoy copyright material. Australian consumers should not be in a significantly worse position than consumers in similar countries. The reforms should not unreasonably harm or discourage the development of new digital markets by copyright owners. Australia has a unique regime that should be maintained. Copyright laws should not be brought into disrepute with technical and out-of-date provisions. Copyright piracy is certainly becoming easier. We know that just through the invention of creations like eBay. The law needs to be constantly updated to tackle piracy. Copyright industries are important, but they need to be supported.

It is already questionable whether the bill has actually lived up to these aims. The Senate inquiry has made clear that in some parts it does not live up to the claims made in the explanatory memorandum, especially in keeping pace with technology, keeping Australia’s unique regime and ensuring that copyright is not brought into disrepute by technical and out-of-date provisions. The bill introduces several new exceptions to copyright in response to the digital agenda review and the government’s fair use and other copyright exemptions review that were announced in May 2005. I will not go through all the fair use exemptions and changes introduced by the bill. I just want to highlight some of the major issues to date to do with that.

Popular attention on one aspect of format shifting for iPod users has overlooked the real question of whether the format-shifting provisions generally work adequately for consumers. For example, you can have one copy on an MP3 player but not one to store on the computer. There are odd inconsistencies that allow copying from one format—say, VHS to DVD—but not between others, such as DVD and DVD, that do not seem to have any logic and indicate a lack of understanding of current and emerging technology. Nevertheless, copyright owners are very nervous about the extent of flexibility given to an individual consumer and how multiple copies may be abused.

There is confusion over the way the rules will apply for schools, and the difficulty for users in interpreting the new test is also still being discussed. I had a terrific meeting in my office with the people who are part of the copyright section of MCEETYA. They put to me quite succinctly the three or four main areas in which they have concerns in relation to this. There is a particularly strong argument here about the fair-dealing exception proposed for research and study. The new section 40(5) will be more restrictive than the current arrangements and does not seem necessary. There is permission now for only 10 per cent or one chapter to be copied, irrespective of other issues, such as availability. This will now become much more restricted and probably, in some cases, unusable under this new legislation.

The new insubstantial copying rules in schedule 8 may also hit schools very hard. Further clarification is still being sought that the communication right to ensure proxy caching and child protection caching by schools would not be an infringing use, but this appears to have been adequately dealt with. Perhaps we might see further changes. The new three-step test is also undergoing serious scrutiny to assess whether it is necessary and workable, as is the new parody and satire exception. It seems to add another unnecessary level of complications for little consumer benefit.

The Senate committee report is there for people to see and read. In the short time that we had to look at the legislation, the committee tried to put down some recommendations that will make some improvements. The committee proposed, for example, that section 111(1) be redrafted to make absolutely clear that individual consumers are not restricted to watching and listening to broadcast recordings in their own homes. The committee recommended that schedule 6 of the bill be amended with respect to format shifting to specifically recognise and render legitimate the ordinary use by consumers of digital music players such as iPods and MP3 players and other similar devices.

The committee recommended that the proposed amendments to the fair dealing exception for research and study in schedule 6 of the bill be clarified to make it clear that only reproductions deemed to be fair dealings will be restricted and that the scope of the provision allowing any other amounts of reproduction will not be affected if they are considered to be fair. The committee also recommended that schedule 6 of the bill be clarified to make it absolutely clear that libraries, archives and cultural institutions, for example, are able to make sufficient copies for the purposes of preservation. The committee recommended that the scope of the exception for key cultural institutions in schedule 6 of the bill be clarified to specifically include the ABC, SBS, the Australian Film Commission, universities, research institutions and other like institutions which hold significant historical and cultural material.

There was also a suggestion that schedule 8 of the bill be clarified to ensure that caching for efficiency purposes—proxy caching—does not infringe copyright and to ensure that there is no doubt that a reproduction must be removed after the end of the particular educational course for which it was made.

What I am trying to highlight is that the Senate committee went through this bill in the short time frame that it had available, with limited ability to question those who I thought were very expert people in this field, and has already come up with some major changes about redrafting. It really begs the question: if the Senate committee had much longer to actually inquire into and report on this bill, would we have come out with a piece of legislation that could be better redrafted and rewritten to provide better clarity for both consumers and users in this area?

I want to make some comments about the Labor senators’ additional report. Our comments were a little bit stronger. We recommend that the time-shifting and format-shifting provisions of schedule 6 to the bill be amended to recognise all current and legitimate uses of technology, including format shifting from podcasts and webcasts. We recommend that the time-shifting and format-shifting provisions of schedule 6 be amended to enable copying for personal and domestic use to occur in places other than domestic premises, including legitimate places of business. Also in relation to section 6, we recommend clarification that the time-shifting and format-shifting exceptions permit sufficient copies to be made and stored for reasonable use of legitimate products and that this section be amended to remove proposed changes to the exception relating to fair dealing for research and study so that the existing section 40 of the Copyright Act 1968 is retained in its entirety. Finally, we suggest that the bill be amended to remove the commercial availability test from the exception relating to official copying of library and archived material.

In the remaining time that I have I want to talk about a number of additional issues that go to the Copyright Tribunal. I am picking up on this because I am not sure that some of my other colleagues have done so. The bill implements the government’s response to the Copyright Law Review Committee’s report Jurisdiction and procedures of the Copyright Tribunal to enhance the jurisdiction and procedures of the Copyright Tribunal. During consultations we were alerted to the likely adverse impact of proposed provisions that would permit the Copyright Tribunal to impose an expensive burden on educational institutions in relation to their so-called record notices. The bill contains a repeal of the provisions which give effect to a prescribed record keeping system. The Australian Vice-Chancellors Committee have submitted that, if that were implemented, an institution issuing a records notice would be required to reach agreement with the collecting society regarding the form of record keeping system or, failing that, apply to the Copyright Tribunal for determination. We actually agree with the Australian Vice-Chancellors Committee assertion that this will have enormous cost consequences for the education sector and that there appears to be no reason to impose this burden when there is no evidence that the current records option is not working. Consequently, we have recommended that schedule 11 of the bill be amended to remove the paragraphs in relation to records notices.

The Senate committee made additional recommendations that the federal government conduct a public awareness campaign and undertake a public review of the impact of the changes made to the Copyright Act after a period of two years of operation of the provisions. In fact, the committee recommended that the federal government develop a plain-English consumer guide on the meaning and effect of the amendments contained in the bill in order to assist people to understand their copyright rights and obligations under the Copyright Act. As I said, we also recommended that the federal government undertake a public review of the impact of the changes of this bill after a period of two years. With regard to the proposed review of the impact of the changes, Labor senators noted in the report that this represents a second-best and belated approach to counteract the inherent inadequacy of this package of reforms.

Just for the record, I reiterate some of the aspects that were contained in the second reading amendment that was moved by Senator Ludwig. As I said, there are probably about four or five areas that I have not had a chance to touch on. My colleague Senator Lundy has gone to some of them, particularly the fair use and strict liability provisions. Of course, time is inadequate to be able to critically analyse in depth what this is going to mean out there in the world of use or misuse of copyright.

As I said, we want to make note of the rushed and inadequate processes for the drafting of this bill. The numerous amendments that are now before us allow little time for detailed analysis of provisions by industry experts and, of course, consumers. We note the government’s decision to not adopt a general fair use provision, thereby focusing debate on the detailed exceptions and necessitating a stifling policy decision which limits format shifting to current but not emerging technologies. For me, that is quite a pity really, given how fast technology moves, not only in the world but also in this country. I think we will be left behind. I am not sure that two years is adequate time in which to review this bill. Perhaps it should be sooner.

The initial far-reaching, strict liability provisions that my colleagues have talked about, and which the government has itself recognised, I think need to be dropped. That flags concerns that other unintended consequences may unfairly penalise consumers. I do not believe that these have been adequately considered or thought through by the government. We note the concerns of the internet industry about unintended consequences of this bill; the need for a strong public education campaign about copyright laws—I have made some comments about that; and the government’s failure to include the recommended two-year review in the legislation. I really think that needs to be reconsidered, given emerging and new technologies. You just have to look at the new Telstra Next G network to actually see how quickly those technologies emerge in this country. We express grave reservations, despite a number of positive aspects of the bill, that the overall package is cumbersome, complex and confusing. In closing, if there is a need to push through some of this before 1 January to comply with the Australian-US Free Trade Agreement, let us do it, but let us put the others off for another time. (Time expired)