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Thursday, 4 May 1989
Page: 1756


Senator MACKLIN(10.32) —The Australian Democrats will not be supporting the amendments moved by the Opposition with regard to this item. As Senator Hill has just said, there has been a great deal of discussion on these matters, and the propositions put by the Opposition had, for us at least, an initial attraction. A problem undoubtedly exists in this area. The difficulty in dealing with this legislation is that there does not seem at the moment to be an effective way out without some sort of massive restructuring exercise. Indeed, there is probably not a way out within the context of the legislation. That is why the Senate has sought from the Government, on my motion, a more detailed look at the relationships between items which may be of a craft nature but which may then become a matter of industrial design.

The Government amendments to the original legislation undoubtedly have a great deal of support in the community. I should like to mention some of them briefly. For example, the Institute of Modern Art has said in its letter to the Australian Democrats:

Clauses 9 and 10 . . . are important for the continued growth of Australia's artistic and cultural life, and will redress an inequity widely criticised . . .

The Australian Writers Guild said that these are truly important reforms which it sees as justified and indeed even conservative. Other supporting groups include the National Association for the Visual Arts; the Aboriginal Artists Agency Ltd; Craft Australia, which, of course, represents a very large number of bodies and has constituent craft councils in every State; and Actors Equity of Australia. One from which I should like to read is from Tiwi Aboriginal Designs, which acts as the agent for the Tiwi people. It has written:

Over the past 10 years the Tiwi Aborigines, who own and operate their own incorporated Screen Print workshop, have had their fabric designs stolen on six occasions to my memory.

On each occasion the law was inadequate to protect them and my company has had to resort to threats of exposure in the press unless a royalty settlement was agreed to. Unfortunately redress outside of the law has been difficult to recover. Their designs have been copied and then imported into Australia from Bali and the USA as well as copied by several Australian companies.

When one considers the commercial worth of many of those designs now, it is extraordinary that that type of product has not been previously protected by law. It seems to us that it is now impossible to go back on the Government's move which has sought to fix up this problem.

The Faculty of Law, for example, at Sydney University, through its lecturer on law, Shelley Wright, on industrial and commercial property, says:

I believe that the failure to pass these amendments, sacrificing the broader issues of fairness to authors and artists to a small sector of industry who would like to maintain a questionable monopoly the Copyright Act was not designed to give them, would be an abdication of the responsibility of Parliament . . .

I am not sure that I necessarily go along with the notion of a questionable monopoly with regard to industrial design. In fact, what we have here, as correctly set out by Senator Hill, is a clash of claims. That is nothing new to those of us who have been working with this legislation. It is an area in which principles clash on a fairly regular basis.

However, the proposition has been put by many other people but probably most clearly by the Australian Copyright Council in a letter to us as follows:

In my letter of 20 March 1989, together with a background paper and other supporting materials, the Council urged that clauses 9 and 10 of the Bill be passed unamended as soon as possible. We did, however, indicate that we would not object to one of the options put by Warman International Ltd. This was that an amended clause 9 be passed alone.

I have discussed this compromise position with officers of the Attorney-General's Department and now agree with those officers that this option is not technically possible.

It was our view at the time that there could possibly be an amended clause 9 that might deal with the issue. We realised, on further reflection, as did the Copyright Council, that this really is not possible. The letter from the Council goes on:

Accordingly the Council withdraws the qualified support it had given to this option and urges that clause 9 and 10 both be passed in an unamended form as a matter of urgency.

I cannot go through the rest of the large number of representations on this issue that have been made around the country. The upshot of the exercise is that although this is not the optimum position which one would like to have achieved, I believe the best course that is open to this chamber at this time is to pass clauses 9 and 10, as moved by the Government, and hope that the Government will look clearly and rapidly at the types of protection that we need in other areas. One of the problems for people working in the industrial design area is that these clauses may not be so attractive. The claws on a dredge are nowhere near as attractive to most people as the Tiwi design, and they may very well have lost out. On the other hand, one should be very clear that what we are talking about in the industrial design area is of significant economic worth to the community. We should not push aside the claims made by the people dealing in the industrial design area. Those claims need to be addressed, and need to be addressed rapidly. The fact that some of those designs could fall outside such protection without anybody knowing about it, and without the person who thought they possessed the design protection knowing that they no longer have it, is a situation which ought not to be allowed to continue, and we need protection in that area as well.

The last point I wish to raise-and I found it extraordinary when I came across it in some discussions I had on this Bill over the last couple of months-is that I was unaware that things such as ratios were able, under the previous operations, to be protected. I found that rather extraordinary. Indeed, I hope that in the general look that we have at this area some of the past practices with regard to copyrighting and protection will themselves be reviewed. It seems to me totally anomalous that one should seek any protection for ratios. The ultimate context, of course, would be that somebody would want immediately to rush out and seek a copyright for pir2 and, hence, tie up absolutely everything to do with anything that is a wheel.

I have in my possession a case involving the protection of a series of ratios. This case happens to affect a number of companies in my own State which deal with the construction of dredgers and the supply of dredgers overseas. They thought that they had a coverage on them, but discovered that somebody else had managed to protect the notion of ratios. I thought that the whole thing was absurd. I then had the opportunity of talking to the person who originally designed the equipment. He assured me that, indeed, the material I was reading was correct-that those ratios had been secured.

I think the area of design registration and protection is one that could do with a great deal of careful analysis, but I must admit that that probably needs to be done in two phases. There needs to be-and I take this to be the implication behind Senator Hill's amendments-immediate protection, because we will face some serious problems if we do not move to some type of protection under either the Designs Act or the Patents Act, or some amendment that we will need with regard to those pieces of legislation. I have not made a study of either of those Acts or the possibility that we will be able to seek some type of immediate protection, but I assume that the Government, in its response today, will be able to indicate that it is already undertaking something along these lines. It is not as though these Bills have landed on us out of the blue. This matter has been the subject of intensive discussions over the last few weeks. I hope that the Government is not waiting for the passage of this Bill before any action is taken. If it does, some of those companies could suffer severe detriment.

Therefore, in not accepting the amendments put forward by Senator Hill, I do not want it taken that we reject the intent behind them. It is just that we feel that the counterclaim is excessively strong. The damage that has been done up to now in terms of that whole area of crafts and artistic productions has been massive, and the Government has at least got that part right. That should be secured, and additional work needs to be done in the other area.