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 |
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
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
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
The Committees both also noted that given the Government’s arguments for harmonisation
of Australian law with
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
<http://www.digital.org.au> and <http://www.digital.org.au/alcc>.
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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
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