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Thursday, 12 August 2004
Page: 26421


Senator HARRIS (9:55 PM) —I would like to put on the record that One Nation supports Democrat amendment (17). The purpose of the amendment is to introduce a new section into the act at the end of the section pertaining to fair dealings. The title of the section is quite significant: `Defence of fair use'. Division 3 of the act itself sets out in section 40 fair dealing for the purpose of research or study, in section 41 fair dealing for the purpose of criticism or review and in section 42 fair dealing for the purpose of reporting news. The new section 42A sets out what is a defence. It is much clearer and, on that basis, One Nation indicates to the chamber that we support that amendment.

There has been a lot of discussion this evening—and this morning when the Prime Minister held his press conference—about how altering domestic legislation may actually put the whole free trade agreement in jeopardy. I find that difficult to understand. If that is the case for Australia, as I indicated earlier to the chamber in a document that I tabled, that is not the case for the United States or the opinion of the United States Trade Representative. They say very clearly that nothing in this free trade agreement or any trade agreement prevents congress from changing a US law in the future.

This chamber should support this Democrat amendment—and I think Labor should as well. Not only would this assist anybody trading with the US; it would also assist people domestically. I do not see any mischief in this amendment at all. I think it is quite sound. In the Senate select committee report One Nation recommended in relation to chapter 17 of the free trade agreement on intellectual property rights:

... that nothing in this Agreement will preclude Australia from legislating to ensure that no additional financial burden or other restrictions as may be applicable to intellectual property rights is experienced by any person or entity embarking upon scientific development, research or experimentation.

I think it is perfectly reasonable to expect that people who embark on scientific development, research or experimentation should not be financially burdened or have any other restriction placed upon them. A report of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters—the acronym is IFAC—to the president, the Congress and the United States trade representatives applauded the US negotiators for incorporating into this agreement the obligations set forth in the WIPO Copyright Treaty and the WIPO Performance and Phonogram Treaty, which are so critical to creating the legal infrastructure for e-commerce, for the distribution and transmission of protected material over the Internet and for products in digital format generally. In particular, IFAC applauded the negotiators for convincing Australia to come into full step with and adhere to key provisions of those treaties, consistent with the manner in which they were implemented by the US in 1998 in their Digital Millenium Copyright Act. So the Americans have this very clear understanding that Australia has agreed to come into line not only with America's copyright—all of the sectors within chapter 17—but also with their position on digital format generally, adopting their protections against digital transmission on the Internet. That is quite a huge step, and other speakers have spoken about their concerns.

Another interesting comment that IFAC make, and this may not bode well for Australia, is about the Free Trade Area of the Americas and the level of intellectual property protection it contains. Our free trade agreement should set a new baseline for future free trade agreements, including the Free Trade Area of the Americas. Stop and think about it. We are no longer talking about Mexico, the United States and Canada. We are now talking about America entering into a free trade agreement with the entire American continent, north and south.


Senator McGauran —What's your problem?


Senator HARRIS —The problem with that, Senator McGauran, is that this free trade agreement between us and America will become the basis for an American free trade agreement in the Americas. Ultimately there will be implications for Australia when American companies are domiciled in all areas within those states. How will we work out the rule of origin? Does that have any effect on this agreement? In conclusion, I want to reinforce the fact that the Democrats' amendment has the ability to introduce into the Copyright Act a section which clearly sets out a defence for fair use. I also say that, if it is good enough for the Americans to be able to alter their domestic law after the free trade agreement has been put into effect, Australia should not have fewer rights.