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Thursday, 12 August 2004
Page: 26414

Senator LUNDY (9:25 PM) —I think the issue is as Senator Ridgeway has described: intellectual property issues were not paid due attention during the course of the Senate select committee's inquiry on the free trade agreement, and that was certainly an observation made by the Labor senators who participated in it. That is precisely why the Labor Party have come back with a comprehensive response to many of the concerns raised.

In a statement by Mark Latham on the day that Labor announced our response to the free trade agreement, Labor said we will ensure that Australia's copyright and intellectual property laws continue to provide a fair balance between the interests of creators, owners and users. We made several very strong points, which are worth going through here. First of all, we would require the Attorney-General to report annually to parliament on the impact of changes to the Copyright Act 1968 on universities, libraries and educational and public research institutions, particularly with regard to any increased costs they may bear.

The monitoring mechanism that Labor have identified relates to the fact that Dr Philippa Dee identified an increase in net cost to Australia because we are net importers of copyright. That is a pretty well established fact. The fact that reports provided to the Senate select committee, such as the CIE and the Allen Consulting reports, were so robustly challenged on the merits of their research and methodology indicates that we do have an issue here. I say to the Democrats that that is why Labor have responded so vigorously on this policy point.

The second issue relates to examining options for broadening the fair dealing and copyright usage provisions of the Copyright Act. In doing so, a Labor government will draw on recommendations from numerous government initiated reports addressing copyright issues that have not yet been acted upon. One of those is a review of the digital agenda.

The point is that there is a case for Australia to look at fair use—and that is why we have stated this—but I do not think the amendment put forward by the Democrats is well thought through or comprehensive or sophisticated enough to address what is, quite correctly, an extremely important issue. Labor have identified that a Senate select committee is needed to look at these issues so that we might achieve, for the first time, a level of sophistication around intellectual property debates in this place. But we need to do it carefully. Because of the implementation process of this free trade agreement, we have that opportunity.

A Labor government, if elected, will have the opportunity to get into the nitty-gritty detail of the appropriate style and shape of a fair use regime that fits with the fair dealing regime in Australia and achieves the purpose of providing an appropriate level of protection for consumers on issues such as time shifting and space shifting of content on different devices in the home. It is true to say that there is a gap. If we do not address the fair use issue, we may well end up in a position where the balance tips too far in favour of copyright owners and too far against consumers. Again, that is exactly why Labor have articulated this response to this issue.

The other point worth making is that the Senate report goes a lot further with respect to recommendations. Recommendation 7 of the Senate select committee report says:

Labor Senators further recommend that the issue of such use of copyright material should be referred to the Senate Select Committee on Intellectual Property to investigate whether universities, libraries, educational and research institutions should be exempt from paying royalties after 50 years.

There is what can only be described as a very strong recognition of the issues in this—and a plan under Labor to address it.

The third point relates to the issue of technological protection measures, TPMs, as they relate to circumvention devices. Labor's position is that we will ensure that it is permissible to sell, purchase and use legally manufactured video, DVD and related software items, including components, equipment and hardware, regardless of place of purchase. This seems to challenge some of the more shallow interpretations of the act. There are questions about criminality—new offences and criminal offences in relation to circumvention and anticircumvention devices. But we know from the response from the department when Labor pressed these points about TPMs in the agreement that this is what the Department of Foreign Affairs and Trade came back with:

The viewing of non-infringing material from other countries is a legitimate activity and the obligations of the FTA target piracy. We do not agree that permitting the sale of region-free DVD players in Australia would contravene the provisions of the AUSFTA provided that the legislation is implemented in a manner consistent with the FTA.

The issue of multizone DVD players will be considered as part of the implementation process. The agreement also provides for a 2 year transitional period to implement these provisions, which will present the opportunity for public submissions in this area.

So this agreement does not put in place a foregone conclusion about the way in which Australia is able to legislate around these TPM provisions. That is why Labor is able to say that we will ensure that it is permissible to sell, purchase and use legally manufactured video, DVD and related software items, including components, equipment and hardware, regardless of the place of purchase. This at least in part satisfies some of the concerns around the pressure on Australia to adopt aspects of the Digital Millennium Copyright Act, a piece of legislation that exists in the US. The Senate committee in paragraph 3.172, found:

Contrary to assertions made in submissions and in evidence at hearings, Mr Stephen Deady, Special Negotiator, Department of Foreign Affairs and Trade told Senate Foreign Affairs, Defence and Trade Committee Estimates hearing that the AUSFTA would not involve Australia being forced to adopt the DMCA ...

Stephen Deady is quoted as saying:

I know in some of the consultation and discussions we have had with you, and others on the committee and elsewhere, that there is a question about how much of that US legislation we need to bring into our own system. We have tried to explain that the commitments we have entered into in this chapter do not require us to bring into our legislation the Digital Millennium Copyright Act.

Nonetheless, as I said, Labor is concerned about this—hence our statement.

I want to move on to the broad issue that I spoke about earlier this evening in relation to software patents. Labor has committed to establishing a Senate select committee on intellectual property to comprehensively investigate and make recommendations for an appropriate IP regime for Australia in light of the significant changes required to Australian IP law by the AUSFTA. That Senate select committee will give us the opportunity to explore these issues in detail. We have an implementation period available to us, and we will make good use of it. We as a parliament are now in a far more enlightened position to make a far more informed assessment about the likely impact of changes to our intellectual property law, and it is appropriate that we do that in a timely and considered way so that we do not make mistakes.

Finally, the other recommendation put forward by Labor relates to recommendations 7 to 9 in the Senate select committee report. Earlier I mentioned the monitoring role of the cost-effective access to material by libraries and educational and research institutions. That relates to the extension of copyright and it is a very important issue. The other recommendations relate to the expansion of fair use and the establishment of the committee.

The other issue I want to mention here is related to chapter 3. I am not sure if it has been particularly traversed. It goes to the issue of performers' rights. I understand that the Democrats are moving amendments or have moved amendments in relation to performers' rights, and I have a couple of comments about that. First of all, to cover a bit of background, in 1996, as part of its election platform, the Howard government committed to introduce performers' rights. There has been little action since. It has taken until now—and then only at the insistence of the United States in the free trade agreement—for the government to respond to this issue.

However, the proposed model, not surprisingly, does not have the support of Australian performers. The government's proposed model for performers' rights will not benefit Australian performers in many respects, including that there is no declaration of a collecting society for the rights. Unlike similar rights holders, performers alone will be left without the protection of provisions of the act which relate to the operation of such collecting societies. It is not intended to increase the value of the sound recording right in section 152, notwithstanding the increased number of creators who will be sharing the right. Employed performers will not benefit from the legislation at all, with their rights being transferred automatically to the record company or producer. This is not the case with the vast majority of jurisdictions where similar rights are granted, including the United Kingdom, which recognises the special nature of the performer-producer relationship.

The Howard government's flawed approach to moral rights legislation for writers and directors in films will be extended to performers working on sound recordings and pursuant to this virtual waiver—as put in place but termed `consent', which I think is highly misleading—to all future but unspecified acts, and may be put in place as a condition to getting the job. This `consent', as it is described, can include a consent to all derogatory treatment of the work.

In addition, producers may force performers to sign their rights as a condition of engagement—and I know this has been a consistent concern with respect to moral rights under the Howard government. Labor is of the view that the Democrats proposed amendments to the legislation address some of the concerns but they are not good enough. The Democrat amendments will not do anything to extend the rights being granted to performers working in audiovisual production. In the age of the dominance of the audiovisual media and the increased flexibilities available for the exploitation of audiovisual works, it is essential that the rights of performers are acknowledged. The Democrat amendments obviously do little to rectify the flawed moral rights legislation not only for performers but also for other creators.

All of these issues need to be addressed in a considered way. That is why, if a Labor government are elected, we are committed to reviewing the legislation as part of our proposed Senate select committee on intellectual property to endeavour to introduce a model of performers' rights, which will be comprehensive and genuinely in the interests of performers. We will get that balance right. We do not believe that anything before us this evening achieves that balance, and it is only Labor that have a plan for the way forward to fix some of those problems.

I have a few minutes remaining and I raise a specific issue in relation to part of the bill concerning criminal offences relating to copyright. I am seeking some clarification from the minister specifically about item 154 in the bill, where the explanatory memorandum refers to the insertion of a new offence relating to a significant infringement of copyright on a commercial scale. The explanatory memorandum states:

The offence is intended to implement the obligation under the Agreement that criminal procedures and remedies apply to a person who has committed significant wilful infringement of copyright on a commercial scale who may be acting with no direct or indirect motivation of financial gain.

It seems that the words `wilful' and `knowing' in relation to the criminal activity are missing in the wording of the legislation. They occur in the agreement, they occur in the explanatory memorandum, but they have been deleted from the legislation. I would like an explanation as to why that is the case. (Time expired)