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Copyright Law Following the Australia–US Free Trade Agreement: A Detrimental Shift in the Balance

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Sarah Waladan, Australian Digital Alliance and Australian Libraries Copyright Committee representative
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Australian Copyright law has always been directed at balancing the rights of copyright owners with those of copyright users so as to promote creation, innovation and improvement within Australian society. The constant process of striving to maintain such a balance of rights has enabled libraries and educational and cultural institutions to have reasonable access to information, and to operate effectively in the growing information economy. Ultimately, such a balance is crucial to enabling the Australian public to reap the benefits of an information-rich public domain whilst at the same time providing recognition and  rewards for creators.

This basis for the existence of copyright law has been translated into a set of exclusive rights for copyright owners, which have been tempered with the defence of ‘fair dealing’.  Fair dealing exists to balance the rights of copyright owners, by allowing access to works where social aims outweigh private rights, and where it would be costly to purchase such works for the purposes of research, development, and improvement.  

As of 1 January 2005 however, Australian copyright law is scheduled for a significant change in favour of the rights of owners. This is the date set for the Australia–US Free Trade Agreement (AUSFTA) Implementation Bill to come into effect in Australia. The changes envisaged by the AUSFTA Bill THAT relate to copyright law (and can be found in Schedule 9 of the Bill), as they currently stand, will seriously alter the balance that has been carefully crafted by the various stakeholders in this arena in Australia to date. The Bill significantly strengthens the rights of copyright owners, whilst at the same time failing to strengthen protection of the rights of users.

The changes in law will have a detrimental impact upon education, consumer, cultural and research institutions. Such institutions will bear the burden of more stringent copyright owner rights, including extension of the copyright term by 20 years, broadening of the definition of what constitutes a copy (i.e. change in the definition of ‘material form’), new performers’ rights, expansion of protection of encoded broadcasts, and tougher penalties for breaches, including incidental, minor and non-commercial breaches of Copyright. This extension of owner rights has not been tempered by any extension of user rights via our ‘fair dealing’ provisions. Fair dealing in Australia remains narrow and prescriptive.

The concerns of those on the ‘public interest’ side of the copyright debate, were given greater weight by the release of the Reports of the Joint Standing Committee on Treaties (JSCOT), and of the Senate Select Committee, which both closely examined the AUSFTA and recognised the detrimental effects it would have on balanced Australian copyright law. Although both Committees saw the AUSFTA as being overall in the national interest, both recommended that if the agreement is ratified, steps should be taken by government to re-balance copyright law, and that such steps should particularly include implementing an open-ended defence of fair use in Australia.

The Committees both also noted that given the Government’s arguments for harmonisation of Australian law with US law, such harmonisation should include copyright user rights as well as owner rights. Without affecting harmonisation on both sides of the balance, Australian copyright law will be even more skewed towards the interests of owners than US law, which contains the broader open-ended ‘fair use’ defence, as opposed to Australia’s prescriptive ‘fair dealing’ defence. This is of particular concern given that Australia is a net importer of intellectual property, and therefore will be particularly disadvantaged by laws skewed in favour of rights owners, in the context of a bi-lateral agreement with a huge IP producer such as the US.

In response to these reports, and passage of the AUSFTA Bill through the Senate on 13 August 2004, the Australian Digital Alliance and Australian Libraries Copyright Committee made a joint submission to government requesting that the Copyright Act 1968 be amended to recognise an open-ended defence of fair use, similar to the current position in the US, where the Courts have power to find new uses ‘fair’ as and when they arise. Such an amendment would to some extent address the detrimental shift in the balance between copyright owners and users, which has been brought about by the AUSFTA Bill. It is an amendment which is necessary in light of the deleterious impact of the AUSFTA upon libraries, universities, cultural institutions and software developers.

Whilst the Government gave evidence before JSCOT and the Senate Select Committee that it was not averse to extending fair dealing, it has not yet indicated whether and to what extent it will remedy the current situation. With the AUSFTA Bill scheduled to come into effect in less than four months, it would seem that the time for action is now.

Copyright law has traditionally provided a way of balancing the interests of owners and users of copyrighted material. In amending this body of law, it is necessary to be mindful of the basis for its existence—to give public recognition to creators, and, of equal importance, to foster innovation and improvement. This necessarily requires striking a fine balance between the rights of owners and users, such that both are provided with sufficient incentives and knowledge to continue creating. Laws which are not mindful of this rational, will have a negative impact, not only on libraries, educational and cultural institutions, but on society as a whole.

The ADA and ALCC joint submission to the Australian Government in relation to fair use, as well as the media release pertaining to this, can be viewed at both websites:

<http://www.digital.org.au> and <http://www.digital.org.au/alcc>.
—Sarah Waladan

Sarah Waladan recently replaced Miranda Lee as Executive Officer for the Australian Digital Alliance and Copyright Adviser (Law and Policy) for the Australian Libraries Copyright Committee. She has a Bachelor of Science and an Honours degree in law from Deakin University in Victoria. Sarah looks forward to the challenge of advocating on behalf of copyright users and libraries and can be contacted on (02) 6262 1273, or email swaladan@nla.gov.au.

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