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Thursday, 7 June 1984
Page: 2741

Senator GARETH EVANS (Attorney-General)(12.27) —The Government has given very careful consideration to this kind of proposal in its drafting of this Bill. We definitely consider a sunset clause as a way of making clear the short term nature of this legislation and our commitment to a review of the longer term implications of it. We have had two particular difficulties, though, with the sunset clause proposal. One of them may have been overstated but it is a consideration that we need to bear in mind, and that is if we set a definite life of two years on this legislation we would tend to create all over again that very degree of uncertainty in the computer industry which it is the objective of this legislation to remove.

Senator Jack Evans —On a point of order, Mr Chairman, I draw the Attorney- General's attention to the fact that we are not talking about the sunset clause at this stage; we are talking about the amendment that refers to the five-year period.

The CHAIRMAN —That is not a point of order; it is a debating point. It may be helpful to the Attorney-General.

Senator GARETH EVANS —I had thought that Senator Evans moved both these amendments together. I am sorry. I might as well complete my remarks in anticipation of what he intends to say and get it all over with.

The CHAIRMAN —Just to clarify the point, Senator Jack Evans has moved this whole amendment because he has not sought leave to split it. He may not have spoken to it, but he moved it, so the whole amendment is before the Committee.

Senator GARETH EVANS —Let me conclude my remarks on the sunset issue, then address quickly the points that Senator Evans has raised and by that means wrap up everything I intend to say in one contribution. To set a finite period of two years would be to recreate the very uncertainty which it is the primary objective of this legislation to remove. That is of particular significance in the context of contractual agreements between overseas suppliers, particularly of custom tailored software, and domestic Australian consumers. There is a concern expressed by overseas suppliers that the absence of clarity or certainty about copyright protection in Australia means that they are unwilling to enter into contracts of any scale or significance. That is one of our primary motivations for moving quickly to pass this amending legislation. It is possible that that concern is overstated but it is there.

A much more significant consideration in our mind-and this is also relevant to the proposal for a five-year limitation-is that this proposal would bring us, for better or worse, squarely into confrontation and conflict with the terms of the Berne International Copyright Convention to which Australia is a signatory and which, of course, sets as the appropriate period of copyright protection a period being the life of the author of the work in question plus 50 years. Although that is probably wildly excessive as an appropriate term for computer software which has a much shorter generational life, the difficulty is that that is the term which we are obliged to adopt domestically in Australia if we are to get reciprocal protection overseas under the terms of the Berne international convention for our own material.

If we want to rely overseas on the operation of copyright law and the international law associated with it and the adherence by other countries to that law and the protection for us that their adherence in turn involves, we in Australia have to accept the full range of obligations under the Berne convention. So, if we set a two-year limit on the kind of protection by a sunset clause we are not giving life of the author plus 50 years. If we set a five-year specific limit on the period for which the copyright protection will apply we are equally not giving another plus 50 years protection of the kind that is required under the Berne copyright. So there is that fundamental technical problem.

That is the very issue, of course, among others, which the international intellectual property organisations are wrestling with at the moment in order to devise some more appropriate protective regime for computer software. It is in the context of those sorts of problems that the Japanese, for example, are talking about patent law as being the appropriate basic point of reference for software protection with a much shorter period of protection reflecting industrial generational technology realities. So they are the sorts of considerations that, while fully accepting the spirit in which Senator Jack Evans has foreshadowed his amendment, do not enable us actually to accept them.