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Thursday, 12 August 2004
Page: 26411

Senator RIDGEWAY (9:13 PM) —I move:

(17) Schedule 9, page 86 (after line 29), after item 3, insert:

3A After section 42


42A Defence of fair use

(1) A fair use of a copyrighted work or other subject matter does not constitute an infringement of copyright.

(2) A fair use includes purposes such as:

(a) research or study;

(b) criticism or review;

(c) reporting the news;

(d) judicial proceedings or professional advice;

(e) parody or transformative use;

(f) time-shifting, space-shifting, or device shifting;

(g) reverse engineering or making interoperable products.

(3) In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(a) the purpose and character of the use;

(b) the nature of the copyrighted work or other subject matter;

(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(d) the effect of the use upon the potential market for or value of the copyrighted work.

(4) The defence of fair use cannot be excluded or modified by agreement or contract law.

(5) The defence of fair use cannot be excluded or modified by technological protection measures, and electronic rights management information.

There is a range of views out there among those who have an interest in copyright law and I am seeking to have some debate about this issue. Given that we do not have a fair use provision in our copyright law, but, most of all, when you consider the way this particular chapter has been dealt with, it strikes me as an oddity that while we have allowed the United States IP laws to infiltrate Australian law we have not even looked at the doctrine of fair use.

We decided to move this amendment to address a fundamental matter of concern about the free trade agreement. I do not expect that the government will support the amendment. Perhaps the opposition will look at it—although that is very unlikely, given that they have already got their sweet deal. The government are enacting intellectual property policy through a trade agreement—that is essentially what is happening in this case. We are not dealing with legislation that looks at a proper process of consultation and debate about changing intellectual property policy in this country. We are talking about a free trade agreement that says what the policy is going to be. The way that the government have gone about dealing with intellectual property—without proper debate and consultation with the Australian community—is quite unacceptable.

Again I refer to Ms Weatherall, who argued in her evidence before the Senate select committee that the government should undertake a review to ascertain precisely how Australia's obligations under chapter 17 of the free trade agreement will sit with its domestic legislation. She said that it is not appropriate to take on extensive obligations to enact further laws protective of IP interests without a full analysis of how these provisions will operate in the context of Australian law which is and—under the US free trade agreement provisions—will remain different from US laws in certain key respects. Any Australian government that considers acceding to such a treaty should undertake to review those areas of Australian IP law where they are stronger than those provided elsewhere in the world and to undertake to redress that imbalance.

On that particular question, Dr Matthew Rimmer of the Australian National University told the Senate select committee that the defence of fair use should have been enunciated in the free trade agreement. He said:

It is such a fundamental doctrine that affects all the different areas of intellectual property, and its absence from the free trade agreement is very significant. Even if this government, for instance, made legislative changes and recommended that there should be a defence of fair use, they could be wound back. But if you tried to make changes in relation to the areas that are mentioned in the free trade agreement and you violated those articles, you would be subject to a trade action. So the failure to include the fair use provisions in the free trade agreement makes it very provisional. Even if this parliament makes those reforms, they can be very easily wound back by a later parliament. That is the real significance: what is included in the free trade agreement is then locked into that free trade agreement because it is subject to those very strong alternative dispute resolution mechanisms and the possibility of trade sanctions if you violate a particular article or even if you violate the spirit of the agreement.

Mr Charles Britton from the Australian Consumers Association, in answer to the same question, told the committee that a fair right defence would guarantee the rights of consumers. He stated that, in the legislative changes required to implement the free trade agreement, at the very least there should be enactment of a fair use right for Australian consumers, which would harmonise the law with current consumer behaviour and protect consumers as the digital environment moves from the control of copying to the control of access. The joint standing committee recommended something along the same lines in terms of the changes being made to the Copyright Act. This does raise real issues.

The application of fair use in the United States as determined by its legal system does specifically provide for several unique copyright doctrines—namely, time shifting and space shifting. An example of time shifting is when consumers record a television program for later use on a device such as a video recorder or, more recently, on other types of storage mediums. Space shifting in this case is when digital content is recorded onto a different device from that to which it was originally assigned—for example, purchasing a CD and copying it on to an MP3 player. We all get these iPAC pocket PCs here in parliament. We have the capacity to download things off the Net. We ought to ask whether or not as politicians we are doing the right thing, given what the free trade agreement will do in relation to IP changes.

There is a need to redress the balance, because all of the discussion about the IP chapter refers to harmonisation of Australia's and the US's IP systems. As far as I can see, harmonisation simply means accepting all of the aspects of their system that protect their copyright owners and none of the aspects that protect copyright users in this country. Where is the balance in that? Where is the harmony? I ask the minister to get advice from his officials about whether or not it is regarded as a fair balance between the rights of users in Australia and the rights of owners in the United States with the changes that are being made.

We all know that intellectual property is about balancing the need to protect the interests of the creators against those of the public domain. Our amendment is about trying to tip that balance back a little so that consumers have an opportunity to get a fair go, as they do in the United States. Why was there an oversight of this issue in the first instance?

I want to make it quite clear that we fully recognise that this amendment will not be supported. It is more about the debate. The Democrats are quite frankly outraged that the government is enacting intellectual property policy through a trade agreement and is not having a proper process of consultation and debate in Australia with Australians. They are huge and complex issues and they should be the subject of an intense and comprehensive public debate in this country, not one that took place in Washington.

We are pitching this proposal at a number of audiences, including people involved in the promotion of education and learning; the protection of cultural heritage, particularly by libraries and cultural institutions; freedom of speech and consumer rights; and the fostering of innovation in IT and open source software.

An amendment of this sort will attract the attention and support of students, teachers, librarians, consumers and people who are iPod owners—perhaps even the pocket PCs, which I have mentioned—and computer engineers. I read an interesting article last week that spoke of the surprise that must be felt by all iPod owners when they discover that they can download music that they legitimately own onto their iPod device. Under this free trade agreement, I can buy a CD and think that I can do whatever I like with it—but the reality is that I would be wrong.

We need to look very carefully at the changes to our copyright regime that are being enacted by the free trade agreement. It is a big deal and it deserves more attention than a promise and a tick that the free trade agreement is going to be all right for this nation. When we proposed this amendment last week, a number of people in the copyright industry called my office to speak about many issues they have raised in this context and an appropriate way to implement the changes to Australian law as a result of the free trade agreement. We have maintained all along that we know that this amendment has no chance of success. It has been suggested that the amendment should have been drafted along different lines, taking out the current fair dealing provisions of the Copyright Act and replacing them with our new proposed fair use defence. But we have also received advice that that is not necessary; they can work side by side.

While activities such as research and study tend to be allowed in the US under the fair use defence—largely because of case law there—as we would be adopting fair use from scratch until the courts start to outline what fair use is, we have no assurances that fair dealings would be covered. That means in theory that some fair dealings could become unlawful. Retaining both fair dealing and fair use in many respects will allow any existing lawful uses to remain lawful, while also providing judges with an opportunity to decide what is and what is not an infringement on fair use grounds. It has been suggested that further amendments are required to this schedule regarding reproductions—deleting the exception to the exception that currently exists.

I do not want to go on too much longer because the point has been made that we need to consider what the ramifications are going to be. That has been overlooked and, quite frankly, there ought to be more debate about this. I hope that Senator Lundy—now that she has come into the chamber—might also engage in this debate and give us an idea of what the opposition proposes to do, beyond just having a Senate select committee inquiry into IP.

There are real issues about IP law in this country being dictated by the free trade agreement. Everything about the development of IP policy now becomes subordinate to the FTA. That is what is happening in this case and that is why the free trade agreement ought not to be supported. It puts in place many rules for future technologies of which we are not yet aware. I wonder sometimes whether the government have thought long and hard about this.

I come back to my original question: why was it thrown onto the table at the eleventh hour? That is what I understand happened, from discussions with other people who were involved in these negotiations. Copyright extension was not on the table at the beginning. I do not know why we ventured down this path without proper analysis—even the minister did not instruct CIE to look at this more closely—and without the issue having been raised not just by the Senate select committee but also by stakeholders out there in the community. It is a real issue and it should have been resolved properly.