[LINK] FTA analysis from Australian Digital Alliance

[Jan Whitaker]

The full report is due this week, but this preview points up some on-going 
issues.
Note the comments about ISP safe harbours under conditions and the shift 
from civil to criminal penalties re TPMs [which is not defined, but I 
presume to mean tamper protection measures [a guess]]

>Date: 2004-07-27 12:21:45 +1000
>Topic: Update on Interim Report - Select Committee on the Free Trade
>Agreement between Australia and the U.S.A.
>
>From:     SWALADAN at nla.gov.au   To:  copy-lib at nla.gov.au
>Date:   26 July 2004 6:31:15 PM
>
>Dear Members and Friends of the ADA and the ALCC,
>
>On 24 June 2004 the Senate Select Committee tabled its interim report on
>the Free Trade Agreement between Australia and the United States in
>Parliament (referred to below as 'the AUSFTA'). This report can be
>viewed at:
>http://www.aph.gov.au/senate/committee/freetrade_ctte/index.htm
>The Select Committee was set up specifically to look into whether the
>AUSFTA as a whole is in Australia's national interest, and to examine
>its impact on Australia's economic, trade, investment, social and
>environment policies. The Committee's final report is scheduled to be
>released on 12 August 2004.
>
>In its interim report, the Committee has presented the issues, as
>gleaned from research and numerous submissions which it received. In
>relation to intellectual property issues, the Committee points to 4 key
>obligations that Australia will face if it becomes a party to this
>agreement:
>
>         1. Australia will be required to amend current IP legislation in
>line with the agreement
>
>         2. As part of this, Australia will be required to extend its
>term of copyright protection from 50 years to 70 years after the death
>of the author, in line with US law.
>
>         3. The agreement commits Australia to ratifying certain
>international IP agreements including the WIPO Copyright treaty.
>Although Australia has already ratified         this treaty, the
>agreement has some additional requirements, which will more closely
>align Australian copyright law with that of the US.  The Report
>particularly    points to the requirement of a ban on devices for
>circumventing TPM's, and the requirement to extend the scope of criminal
>offences relating to the manufacture and        sale of such devices.
>
>         4. the agreement sets up a system for dealing with alleged
>infringing material in ISP systems and networks. It is noted that ISP's
>will receive 'safe harbour'     immunity when dealing with alleged
>copyright infringements on their systems or networks, but they must
>comply with certain conditions.
>
>
>The Committee goes on to consider specific issues:
>
>         1. The issue of whether IP should be dealt with in a free trade
>agreement which is predominantly geared at advancing free trade.
>         The Government naturally argues that it should, and that the
>agreement strengthens Australia's IP protection whilst providing
>flexibility to create appropriate       exceptions.
>         The Committee however points to submissions outlining that IP
>generally preserves monopoly power and therefore restrains trade, and
>thus question whether IP        should be the subject of a trade
>agreement.
>
>         2. It is noted that many of the submissions relating to IP
>argued against extension of the term of copyright protection from 50 to
>70 years (including the ALCC and        the ADA) on the basis that
>Australia is a net importer of IP. It is pointed out that because we are
>a net importer of IP, the effect of any extension of the term will be
>to cost the Australian economy and local consumers whilst benefiting
>foreign copyright owners. The Committee notes that the Government has
>previously      advocated against the term of protection being extended.
>
>
>         Thus on the face of it, this appears to be an area where
>balanced IP has lost out to free trade.
>
>         3. It is noted by the Committee that chapter 17 (the IP chapter)
>selectively requires Australia to bring its IP laws into line with the
>US only where they broaden the  scope of IP protection. The Committee
>did not accept the Government's argument that bringing copyright law in
>line with the US was economically beneficial to         Australia, and
>in fact the Committee points out that complete harmonisation with the US
>and also other trading partners will not occur. The Committee thus noted
>its concern that chapter 17 was protective of the interests of copyright
>owners at the expense of users.
>
>         4. The Committee points to the possible exacerbation of the
>shift in the owner-user balance in favour of copyright owners. It notes
>its concerns that the agreement         could have this affect as a
>result of only harmonising aspects of US law which are protective of
>owners interests, whilst not achieving such harmonisation in relation
>to aspects which are protective of the interests of members of the
>public. The committee accepted the concerns raised in the submission of
>the ADA and ALCC to     the Committee, that this could lead to our law
>in fact becoming even more protective of owners rights than it currently
>is in the US if appropriate adjustments (such   as expanding our fair
>dealing provisions for example) are not made.
>
>         5. The Committee notes that there is an issue in relation to
>contracting out of the provisions of the Copyright Act (of particular
>concern would be the fair use   provisions of the Act). There is a
>provision in the agreement allowing such contracting out. Whilst the
>Government argues that this is consistent with current  Copyright Law,
>it is in direct contradiction with a recommendation of the 2002 CLRC
>report on 'Copyright and Contract'.
>
>         Thus this illustrates the need for Australia to look at its own
>Copyright agenda and the inconsistencies that exist with U.S. copyright
>law. A problem of note will be  the ease or rather lack thereof with
>which we can make changes to the law once this agreement is in place.
>
>         6. The issue on inconsistency with our own copyright law
>direction also comes up in relation to TPM's.  Whilst the Phillips Fox
>Report of the Digital Agenda Review     (currently on the backburner)
>recommended that TPMs should be limited to devices that 'prevent or
>inhibit the infringement of copyright', the AUSFTA      takes a
>much more expansive definition. It requires Australia to ban devices for
>circumventing TPMs and extends the scope of criminal offences relating
>to the  manufacture and sale of circumvention devices.
>
>         7. As mentioned above, the agreement sets up a system for
>dealing with alleged infringing material in ISP systems and networks,
>creating 'safe harbours' for ISP's      in certain circumstances.  One
>important problem referred to by the Committee in relation to this is
>that whereas now, the Copyright Act exempts temporary   reproductions of
>material, the AUSFTA gives ISP's 'safe harbour' immunity only if caching
>is carried out through an automatic process. Whilst such provisions are
>aimed at undesirable practices such as piracy etc, the prevention of
>undesirable consequences for educational institutions are still to be
>clarified.
>
>         8. The Committee notes that the agreement provides for increased
>penalities, both civil and criminal, for breaches of IP law. In some
>cases this creates criminal     penalties where currently only civil
>penalties exist.
>
>         9. The Committee notes concerns about Australia's chosen form of
>implementation of its obligations under the agreement. Whilst our
>Government has indicated        that a word for word adoption of U.S. IP
>law is not what is required pursuant to the agreement, it is still
>somewhat unclear as to what extent the U.S. will expect
>implementation in accordance with their interpretation of the meaning of
>the agreement.
>
>The Government responds to the Committees concerns in the Report. In its
>response, the Government alludes to the creation of appropriate
>exceptions to ensure the maintenance of a balanced system of
>intellectual property law. It also denies any requirement of 'word for
>word' interpretation of U.S. intellectual property laws. However, what
>exactly will be seen as 'appropriate exceptions' and to what extent
>Australia will be able to interpret its obligations under the AUSFTA,
>are issues that still need to be worked through.
>
>Please note that the above is an overview (albeit not brief), for a full
>view of the Committee's interim findings to date and the Government's
>response, you should access the link above. Furthermore, please note
>that the above report is the Committee's interim report. Thus I expect
>more detailed findings and recommendations will be put forward in the
>Committee's final report.
>
>Regards,
>
>
>Sarah Waladan
>Executive Officer
>Australian Digital Alliance
>
>Copyright Advisor (Law & Policy)
>Australian Libraries' Copyright Committee
>
>Ph: (02) 6262 1273
>Fax: (02) 6273 2545
>
>www.digital.org.au

JLWhitaker Associates
Melbourne, Victoria, Australia
jwhit at melbpc.org.au  --  http://member.melbpc.org.au/~jwhit/whitentr.htm
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