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Thursday, 12 August 2004
Page: 26402

Senator RIDGEWAY (8:32 PM) —The Democrats oppose schedule 9 in the following terms:

(15) Schedule 9, page 85 (line 2) to page 163 (line 27), to be opposed.

I want to talk about schedule 9 because the issue of intellectual property, in chapter 17 of the free trade agreement, is possibly the most neglected part of the debate. Whilst there have been various views put forward by various stakeholders and experts in the various committees that have met, the result is that, because the focus has been on the PBS and Australian cultural content, the most far-reaching chapter of the free trade agreement has been pretty much neglected.

Whilst the Labor Party in opposition have said that they would look at putting into place a Senate select committee on intellectual property if they got into government, this really is an issue for a separate inquiry because it has far-reaching consequences. If anything, the agreement either pre-empts or directly contradicts current Australian debate about appropriate reform to our copyright law, particularly in terms of proposed changes to Australian law that go further than what the free trade agreement currently offers and, in some instances, further than current US copyright law. So chapter 17 of the agreement is potentially one of the most significant, with what I would regard as the most far-reaching reforms. It will have a direct and serious impact on Australian innovative industries.

Some of the changes, such as the ratification of the World Intellectual Property Organisation treaties, are positive reforms but there are aspects of the chapter that deal with the extension of the copyright term, anticircumvention devices and the liability of Internet service providers with respect to copyright infringement, which I think are very dangerous developments. Quite frankly, the government does need to provide some answers in respect of that chapter.

Senator Lundy referred to yesterday's article by Ross Gittins. I thought it was an excellent piece. He stated that a primary objective of the US government's trade policy has long been to make the world a more congenial place for US exporters of intellectual property. In many respects, the US is trying to get other countries to harmonise their IP laws with US laws. The end result is that we will be policemen prosecuting citizens who pirate American intellectual property and enhancing the ability of US companies to protect their rights in other countries' courts. As Ross Gittins pointed out, this is all very well for the Americans but it offers little benefit to us—just costs. He asked why, and mostly it is because we are a heavy net importer of intellectual property and we have to bear the cost as a result.

The section dealing with intellectual property is the longest chapter in the agreement. I think it presents us with a puzzle because our government has repeatedly assured us that it has given the Americans little of any value so there is nothing for us to worry about, but when you listen to US politicians and lobby groups you hear them say that they are well pleased with the precedent that our deal sets for the many free trade agreements the US intends to reach with other countries. I ask how this particular conundrum can be resolved, because in many respects I think we have aided and abetted the United States in extending its capacity to reach into other countries to run, if you like, the IP market for the entire world, and to do that in such a way that the laws of the other countries, or the way in which they operate, will be to the benefit of America because we will all become IP outposts for US IP holders, IT companies and so on.

What our government is talking about now is what the Americans are thinking for the future, and there is something in that. For example, we do not know what the future will be like when it comes to the media landscape and we are accepting amendments to our system through the free trade agreement that will have an impact that we cannot predict. An analysis has not been done on that, and I would be interested to hear from the minister and certainly from his officials what they believe will be the outcome. I do not believe that anyone can escape the free trade agreement once it is locked in. Kim Weatherall from the University of Melbourne has provided what I believe to be an excellent summary of the impact of the US Free Trade Agreement Implementation Bill. She says that the bill:

makes IP much more complicated than it already was;

makes consumers more likely to be both criminally and civilly liable;

makes consumers liable for copyright infringement when they watch an unauthorised copy of a DVD;

makes our law more protective than US law in key respects;

introduces no measures to mitigate the shift of any copyright balance in favour of copyright owners;

makes no attempt to reduce the costs to society of copyright term extension;

makes no attempt to take into account the recommendations of JSCOT;

And she says further that it makes no attempt to take into account the recommendations of the Senate committee and so on. I think that Ms Weatherall's strongly held view is that even if the parliament does decide to support the free trade agreement it should not accept this part of the implementation bill. There is a good reason for that because, given that it is the most lengthy part of the free trade agreement, first and foremost, there has been a high degree of a lack of public consultation. When there are such radical and significant changes being proposed to copyright law without public consultation, the government is enacting intellectual property policy by trade agreement. This is one of the arguments that has been raised as part of this debate: we do not get to see the free trade agreement and deal with the specifics of it, and we are certainly not dealing with the full ramifications of the biggest chapter in the free trade agreement—the chapter on intellectual property.

There are many factors in this bill that are unpredictable. There are many things that I imagine could be ironed out through a proper process, and it seems to me that the whole thing is being rushed through. I have to ask the question: to what end? It seems to me that we are meeting an artificially determined deadline, and I again ask whether that is the proper process when it comes to dealing with intellectual property law changes in Australia and also changes to copyright law. This is an unacceptable process in the first instance.

The second reason why the schedule should be opposed is that the FTA goes even further in a couple of areas than the FTA requires. People may ask why that is so and what gains could possibly be had from being even more protective of IP than the United States of America. I ask whether anyone has read the government report that pointed out that Australia's interests are not served by having stronger IP laws than the internationally accepted standard. I ask whether anyone has looked lately at the balance in intellectual property, because the FTA Implementation Bill goes further and is more protective of IP in several respects than the FTA requires. It narrows some exceptions that used to prevent consumers being liable for copies of performances made at home solely for personal and domestic use—in fact, there is nothing in the FTA that requires this. The bill goes even further than the FTA requires by imposing criminal liability in ways in which the effect is likely to be unpredictable. It also makes it a copyright infringement to play an unauthorised copy of a DVD, for example, or to view, even unknowingly, copyright-infringing material online.

Historically it is the person who makes the unauthorised or pirate copy who infringes the copyright, not the consumer. But the government has stated its intention that copyright should not unduly intrude into the private or domestic sphere. The Senate select committee expressed exactly the same concern. So this result is quite surprising, and I ask the minister to clarify whether the changes will shift the liability from those who infringe copyright more directly—the pirates, if you like—to the consumer. Nowhere in the free trade agreement does it mention that copyright owners must have an electronic use right. I think this idea should be discussed and clarified because it extends the provisions about decoding encrypted satellite broadcasts to all forms of broadcasts, and I understand that includes cable. The third reason why this schedule, and more particularly the bill, should not be supported is that it does not take advantage of the many areas where there is flexibility to introduce exceptions into Australian law. For example, there is nothing in the bill about a fair use provision or about extending exceptions to copyright infringement, despite the fact that it already exists in American copyright law, as I understand it.

The fourth reason concerns performers rights provisions. These are quite remarkable, I have to say, because performers rights in Australian law at the moment are really rights to prevent unauthorised recording of performances and unauthorised distribution of those unauthorised recordings. After the implementation bill, performers will have moral rights in their performances so far as those performances consist of sound and co-ownership of copyright in sound recordings of their performances. In effect, it means that they will not have copyright in films. They will not have moral rights in their performances so far as those performances consist of something other than sound, and for existing recordings the copyright will really only mean a right to get an injunction against infringement by third parties. I will have more to say on that when I come to my later amendments—Nos (16), (22) and (23)—as I think it needs to be debated in more detail.

I think the government realises that there is more in this and that it needs to provide some answers. The concerns being raised by me have also been raised by constituents of mine in the performance and arts sector. The matter has been raised as a result of the Senate select committee process and I believe it has also been raised through JSCOT. In many respects, the implementation bill—I repeat—makes IP much more complicated than it already is. It makes consumers in this country—not the pirates any more—more likely to be both criminally and civilly liable, particularly when it makes consumers liable for copyright infringement for watching an unauthorised copy of a DVD. It makes our law more protective than US law in key respects. It introduces no measures to mitigate the shift of any copyright balance in favour of copyright owners. It makes no attempt to reduce the cost to society of copyright term extension, which is important when you consider the costs involved for institutions like universities, libraries, schools and so on, and it makes no attempt to take into account the recommendations of the various committees. It seems to me to be a dreadful, short-sighted and irresponsible process that has been gone through.

The argument is that this schedule ought not be included. I cannot understand for a moment why the government would go into this negotiation and set new precedents in a free trade agreement. It is only because they want to aid and abet the United States in spreading its IP tentacles across the world into other countries. That is essentially the effect of it. We will become the IP outpost; we will get out there and police all of this for the United States. They do not need to come here any more. They have institutionalised, if you like, their capacity to do so because we have said that the free trade agreement will allow that. That is a good enough reason, from my perspective, for opposing this schedule. It is another example of where the free trade agreement itself is fundamentally flawed.