[Ecommerce] Australia/US/FTA copyright provisions: Free Trade at a Price

[James Love]

http://www.smh.com.au/articles/2003/11/10/1068329472356.html

Free trade at a price

By Nathan Cochrane
November 11, 2003

Librarians warn a free trade deal with the US may result in a massive
transfer of wealth from the Australian public and performers to US
monopoly copyright holders.

Negotiations for the US Free Trade Agreement, scheduled to be completed
by year's end, may result in a tenfold increase in licence fees for
Australians performing original works by US artists, if overseas
experience is a guide.

Australian Library and Information Association copyright adviser Colette
Ormonde says in a recent case an Australian performer touring the US was
denied the chance to perform the works of Hungarian composer Bela Bartok
because an extension to the US copyright term had clawed Bartok's work
back from the public domain.

Bartok died in 1945 and his works entered the public domain - where they
could be performed without paying licence royalties - in 1995. But under
new US laws, the Bartok estate retains control over his works until 2015.

US negotiators backed by powerful lobby groups for the film, publishing
and recording industries want Australia's copyright term of 50 years
after the death of the author extended to 70 years to comply with US
legislation, even though this goes well beyond the period laid out in
the international copyright treaty, the Berne Convention.

A recent Australian report paid for by US and Australian copyright
holders says movies would effectively increase their term of protection
from 50 years after first publication to 95 years.

Report author the Allen Consulting Group backed its sponsors' position,
saying the "incentive" effect of extending the term for another 20 years
would result in more works entering the public domain - if at a later
date. The report did not address the phenomenon of open source or free
software systems, where programs are created for the specific purpose of
donating to the public good with no intention to charge for their
distribution or creation.

Although FTA negotiators and the governments refuse to issue draft
documents for public debate and scrutiny before signing, and their
contents may not be known for several weeks or months afterwards, drafts
of other free trade deals being negotiated with the US reveal that term
extension is often a prerequisite demanded by the US.

Ormonde says the problem of works leaving the public domain "goes way
beyond libraries".

"ALIA opposes the extension of the copyright term," she says. "ALIA
feels that Australian copyright holders are seduced by the arguments of
the huge US copyright owners and don't adequately understand their own
interests as users of copyright materials.

"Extension of the copyright term in the US benefited the publishing
conglomerates and  film and record producers but disadvantaged copyright
users. Amateur musicians, for example, found that the licensed cost of a
music score for a one-night performance increased from $100 to $1000.
The worst result for copyright users was that authors and composers
whose work was out of copyright became protected again.

"How was the balance of interests in copyright served by this? It wasn't."

Ormonde says the cost to Australia - a net importer of copyrighted works
such as films, music and books - will continue to grow as copyright
terms are extended and won't be compensated by the greater returns to
Australian publishers of original works.

"The rewards to Australian copyright owners in extending the term of
protection are minimal because they don't have the huge product of major
European and US publishers and never will have."

She questions the wisdom of Australia granting immediate concessions
when the US has said it will take a long time for it to open its markets
to our agricultural exports.

Project Gutenberg Australia, an online repository of works in the public
domain, will be among the first to feel the impact of any extension to
copyright terms.

Named after the famous bible first printed by Johannes Gutenberg in 1454
with the then newly invented printing press, Project Gutenberg was
started by volunteers in the US 32 years ago to make available to the
public works of cultural significance that are in the public domain.
Downloads are free.

Australia's copyright laws mean the local outpost of the not-for-profit
organisation (www.gutenberg.net.au/) is able to provide works that are
illegal to download without paying hefty licence fees in the US.

Project Gutenberg Australia's maintainer, Col Choate, says he doesn't
expect a change in the copyright law after the Federal Government's
National Competition Policy review of the legislation last year found
there was no benefit to Australians. But if a new deal was to extend the
term of copyright it would "just about wipe us out". He says works by
authors such as Virginia Wolfe, D.H. Lawrence and George Orwell now in
the public domain would be taken back into the hands of private
copyright holders.

"I'm possibly the only site with a lot of those books anywhere in the
world because

Project Gutenberg in the US doesn't have any sites anywhere else,"
Choate says.

He says the collection of online works is of special benefit to those in
the bush and the disabled who can't get to a library. He questions why
the details of what is "up for grabs" haven't been brought to light for
community discussion before the signing of the deal.

"There's a great deal of apathy," Choate says. "People say to me 'why do
you want to play with that old stuff' but they don't understand it is
quite a lot and that we can keep a lot of this stuff alive and that is
good stuff.

"(From the publishing industry's perspective) there's no money to be
made in pushing this stuff that doesn't have any monetary value - they
would rather push something for 20 bucks than something that has no
monetary value."

A spokeswoman for the Minister for Communications, IT and the Arts,
Daryl Williams, says that although the Government would not comment on
specific points under negotiation until the FTA was finalised, it
"appreciates the value of having material available in the public domain".

"The Government will consider any proposals for increased copyright
protection in light of the fact that Australia is a net importer of
content," the spokeswoman says.

"Australian copyright laws currently promote innovation and investment
in the content and cultural industries, while at the same time providing
Australian consumers, educators and researchers with reasonable access
to copyright material."


--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040