[Ecommerce] US/Australia FTA IP Provisions: tougher DMCA like provisions...one country at a time

[Manon Ress]

Thanks to VF for this message.

Official Statement on US/Australia FTA IP provisions:

http://www.dfat.gov.au/trade/negotiations/us_fta/outcomes/08_intellectual_p=
roperty.html

and below a letter from Matthew Rimmer (Faculty of Law, Australian National=
 University) that gives some insight into process and potential
impact.

From: Matthew Rimmer [mailto:RimmerM@law.anu.edu.au]
Sent: Monday, February 09, 2004 7:11 AM

[SNIP]

I am concerned that, as part of the Free Trade Agreement with the United
States of America, the Australian Federal Government has agreed to adopt a =
version of the Sonny Bono Copyright Term Extension Act 1998 (US).  The term=
 of copyright protection in Australia will be extended from the life of the=
 author plus 50 years to life of the author plus 70 years.

The United States statute was literally a "Mickey Mouse" bill.  It had been=
 the result of intense lobbying by a group of powerful corporate copyright =
holders, most notably Walt Disney, which faced the expiry of its copyright =
on Mickey Mouse and other famous cartoon characters. The original sponsor o=
f the bill, Congressman and composer Sonny Bono, who found fame working wit=
h Cher, wanted copyright to last forever.  The legislation extended the ter=
m of copyright protection for copyright works from the life of the author p=
lus 50 years to the life of the author plus 70 years, in line with the Euro=
pean Union.  It also extended the term of copyright protection for works ma=
de for hire, and existing works, to at least 95 years.

In the past, the Federal Government has rejected proposals to extend the
term of copyright protection.   The Intellectual Property Competition Revie=
w Committee - lead by the redoubtable economist Henry Ergas and intellectua=
l property academic Jill McKeough - investigated whether the copyright term=
 should be extended, in accordance with the European Union and the United S=
tates of America. It could find no empirical evidence whatsoever to support=
 such an extension of the copyright term.  Accordingly, the Committee recom=
mended that there was no justification to change the copyright term in the =
context of Australia.

In November 2003, a spokeswoman for the Minister for Communications, IT and=
 the Arts, Daryl Williams said that the Government "appreciates the value o=
f having material available in the public domain".   She said:  "The Govern=
ment will consider any proposals for increased copyright protection in ligh=
t of the fact that Australia is a net importer of content.  Australian copy=
right laws currently promote innovation and investment in the content and c=
ultural industries, while at the same time providing Australian consumers, =
educators and researchers with reasonable access to copyright material."

In December 2003, Trade Minister Mark Vaile pledged to defend the copyright=
 term in Australia:  "It is a very important issue, particularly in terms o=
f cost to libraries, educational institutions and the like here in Australi=
a," he told The Australian Financial Review.   "There is a whole constituen=
cy out there with a strong view against copyright term extension and we are=
 arguing that case."

Two months later, it seems that the Coalition Federal Government has meekly=
 capitulated to the demands of the United States of America.  A key point o=
f the new chapter on intellectual property in the Free Trade Agreement prom=
ises "an increased term of protection for copyright material".

I am concerned that the extension of the copyright term will interfere with=
 the activities of libraries, cultural institutions, and electronic
publishers.  As Colette Ormond of the Australian Library and Information
Association has observed:

"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 w=
orst result for copyright users was that authors and composers whose work w=
as out of copyright became protected again.  How was the balance of interes=
ts in copyright served by this? It wasn't.  The rewards to Australian copyr=
ight owners in extending the term of protection are minimal because they do=
n't have the huge product of major European and US publishers and never wil=
l have."

There are serious economic implications for Australia.  Noble-prize winning=
 economist Milton Friedman testified in the Supreme Court case that 'it is =
highly unlikely that the economic benefits from copyright extension under t=
he Copyright Term Extension Act outweigh the additional costs'. He feared t=
hat the legislation would have a detrimental impact upon the welfare of con=
sumers.

Furthermore, it looks like Australia has adopted key features of the Digita=
l Millennium Copyright Act - the tighter technological protection measures =
and strong regime regulating Internet Service Providers.  This will undercu=
t the Digital Agenda Act Review process.

I think that it is also important to emphasize that the agreement will not =
harmonise IP laws between Australia and the United States.  It is a very se=
lective process.  Australia has adopted the harsher measures of the Digital=
 Millennium Copyright Act and the Copyright Term Extension Act. However, it=
 has not accepted the higher standard of originality or the open-ended fair=
 use defence of the United States. As a result, Australia will arguably hav=
e even higher standards of copyright protection than the United States.

Cheers,
Dr Matthew Rimmer
Faculty of Law
The Australian National University
(02) 61254164
matthew.rimmer@anu.edu.au
http://law.anu.edu.au/scripts/StaffDetails.asp?StaffID=3D238

Rimmer, M. "Free Mickey: The Copyright Term and the Public Domain", Incite,
March 2003, Vol. 24 (3), p. 12,
http://www.alia.org.au/incite/2003/03/mickey.html

Rimmer, M. "The Dead Poets Society: The Copyright Term and the Public
Domain", First Monday, June 2003, Vol. 8, No. 6, URL:
http://firstmonday.org/issues/issue8_6/rimmer/index.html


--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176