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18 December 2003 Australia-United States bilateral trade negotiationsALIA briefing of Federal Members of Parliament on the Australia-United States bilateral trade negotiations, December 2003[ALIA has sent letters to Hon Mark Vaile, Minister for Trade and Senator Stephen Conroy, opposition spokesperson for trade, using the following arguments. This lobbying campaign will continue. We encourage ALIA members who wish to lobby their federal member and/or state senators as concerned citizens to draw on the briefing paper below for arguments to exclude intellectual property and cultural industries from the proposed trade agreement] ALIA asks you to oppose any commitment of Australia, in the trade negotiations with the United States, which will impair the right of Australian governments to legislate on intellectual property for the primary interests of Australians. In the interests of ten million Australian library users, we oppose any extension of the copyright term beyond the present Berne Convention period of death of the author plus fifty years. As custodians of Australia's cultural heritage and of our historical record, librarians also oppose the inclusion of cultural industries in the trade agreement. In the rapidly changing environment of digital information technology and the development of new media, Australian governments must retain the ability to legislate for access to information and for the expression of Australian identity. We have expressed our concerns to officers of the Department of Foreign Affairs and Trade who have held informal consultations concerning the Australia-United States trade negotiations with various groups during the year.
Balance of interests As you know, Australia is an importer of copyright material while the United States is a content and information exporter. This section of the US economy is growing rapidly and new technological developments will continue to stimulate that growth, especially through digital technologies and new media. It is therefore in the US interest that intellectual property and cultural industries be included in trade agreements to suit a US economic agenda. You have stated that it will be difficult to change American quotas in sugar, beef and dairy and you are aware of the twenty year history of US trade negotiations with other countries, a record which demonstrates that there is no guarantee that better markets for our agricultural commodities and manufactured goods will result from concessions in intellectual property or standstill local content proposals made to suit US corporate copyright owner interests. Within the Australian education and library and information sectors, the balance of copyright interest has already been distorted in favour of copyright owners by the layers of licensing agreements which increasingly require payment for ongoing information access, even after the original purchase of material. The development of digital-object-identifier technology (cipher codes embedded in digital information and enabling tracking of uses) means that publishers are now able to charge for segments of information delivered digitally. Copyright owners talk about the ease with which digital information can be 'pirated' to their economic loss. They rarely acknowledge the benefits of that technology to them; minimal distribution costs, wider market coverage, flexible cheap delivery and the potential to charge per view and/or for small amounts of material (the 'granular' market). Limitless opportunities for making money from the same content in digital format (as opposed to print) exist without further development of copyright protection. To tip the balance even further in favour of large global information companies is not in the interests of Australians, will create added burdens for information-deprived individuals and groups, including Australians living outside capital cities, for whom technology promised ease and equity of information access.
Extension of copyright term Experience of American information users: Extension to the copyright period in the United States of America means that some works now in the public domain (that is, available free of permission or royalty), are clawed back under protection until 2019. It is not always possible to predict what works will be affected because there is no information source of works by date. Extension of the copyright term has created uncertainty and confusion among American users. The Copyright Term Extension Act, passed by Congress in 1998 to satisfy ongoing protection of Mickey Mouse for Disney Corporation, continues to be opposed by American academics, researchers and librarians. Their challenge in the US Supreme Court (Eldred v Ashcroft, the Mickey Mouse case) was narrowly unsuccessful, 4-3 decision. The court decision was based on constitutional argument, specific to US law. The added costs to users, the minimal long-term rewards to owners and the speculative nature of predictions of future creation and innovation arising from further monopoly were not disputed. There were significant unintended consequences, including a tenfold rise in the cost of music score rentals for music students and amateur orchestras. The Australian film, Shine, for which Geoffrey Rush won an Oscar, was delayed and incurred extra costs because the music of Rachmaninov, essential to the film's true-life plot, disappeared from the public domain in the closing stages of production. The impact on distance education as a result of the Copyright Term Extension Act (CTEA) and the still controversial provisions of the Digital Millenium Copyright Act (DMCA) resulted in hasty and narrowly-defined concessions for educational institutions and a continuing plethora of customer complaints about being unable to use hardware and software which they have purchased for lawful uses. Experience of Canadian information users: Canada has consistently taken the view that it is in the interests of Canadians to be cautious about adopting intellectual property rules dictated by European and US content publishers without proper parliamentary debate and attention to Canadian interests. Canada has participated in trade agreements with the United States since the early 1980s and still holds to the Berne Convention copyright term of death of the author plus 50 years, the present term in Australian law. The Berne Convention is the foundation international agreement on copyright which Australia signed 70 years before the United States. Monopoly agenda: US copyright owners, especially those in the film, television, media and music industries are keen to extend the copyright term indefinitely. The legal and economic basis of copyright which underpins Anglo-Australian legislation and international copyright treaties is that creators should be protected and rewarded for a set period and then protection should be lifted to allow that information to flow into public use (that is, use without permission or royalty), in order to stimulate further creativity and innovation. One rationale for this theory is that intellectual property is unlike physical property because its use by one person or a million does not impede its use by the rest of the world. Another is that information in the public domain always stimulates innovation. The internet itself is an impressive example of an information technology made available for public use less than twenty years after its initial development, with results which have transformed all societies. The drive of American copyright owners, expressed by one lobbyist as extension of the copyright term for 'infinity minus a day', is to use the profit-potential of cheap digital distribution to establish a new basis for copyright law, one of reward for investment, with diminishing or no space for public or free uses. This is completely against the public interest of any country and it places no obligation on the copyright owner to continue to invest or make the information available commercially. As creators vanish into obscurity and corporate publishers and distributors change or disappear, the ownership of information and the ability to seek permission to use it becomes economically burdensome. The number of books which rapidly disappear into the out-of-print category indicates that profit to creators and to publishers accrues in the first twenty years. Worse, the régimeof extended protection, not only through the Copyright Term Extension Act (CTEA), but through the US Digital Millenium Copyright Act (DMCA), impedes the digital preservation of and access to older materials. Access to digitised library collections: US researchers and libraries are still burdened with the added costs of tracking down permissions for use of material from creators and publishers who have vanished. In 2002, after the CTEA and the DMCA, the Carnegie-Mellon University Libraries published a study on the feasibility of acquiring permission to digitise copyright material and make it available via the internet. Only half of the requests were ever answered by copyright owners, even after follow-up letters, and addresses were never found for eleven per cent. The lowest rate of response was from commercial publishers. As a result of the US copyright regime, US libraries and museums have found it more difficult, complex and expensive than Australian national and state libraries to make their archival and special collections digitally available to their citizens. Minimal profits to creators: Seventeen economists, including economic rationalist Milton Friedman, prepared a brief for US copyright users in the Mickey Mouse case which opposed the extension of the copyright term and produced statistics to show that the profit for the creator in the extended term was at the most a few cents and often a percentage of a cent. This report, The Copyright Term Extension Act of 1998: an economic analysis, produced by the AEI-Brookings Joint Center for Regulatory Studies, is attached. The recent Allen Consulting Report, commissioned by Australian copyright owners, has not produced any hard evidence to contradict the findings of the Friedman/Brookings report. The extension of copyright terms is an extension of corporate monopoly. It has no place in a free-trade agreement, is anti-competitive and burdens information consumers with escalating and unpredictable costs and legal obligations.
US-Singapore trade agreement The Australian Parliament needs to be very cautious about agreeing to any intellectual property terms which extinguish or diminish user access in favour of a DMCA-style regime. One example is the difference between the DMCA and Australian law on circumvention devices. Our Act protects owners but permits the circumvention of technological blocks by libraries and researchers for study and research purposes and the legality of 'reverse engineering' which has been the basis of information technology and software development for the past fifty years. The DMCA has been used by major corporations, such as Sony, to inhibit this innovation process. The Skyalarov case, where a researcher was imprisoned for giving a paper at an academic conference because he showed the capacity to breach software security, is an extreme example of the DMCA in action.
The executive director of the Australian Internet Industry Association, Peter Coroneos, has criticised the US-Singapore agreement as encouraging an aggressive litigious approach to problem solving, as well as raising privacy concerns. (Rachel Asman-Chin, Online privacy exposed to FTA, Australian Financial Review 2/12/03:29)
Unintended consequences: US copyright interpretation Possible interpretation of intellectual property terms outside the Australian court system and the aggressive litigation pursued by US copyright owners require Australian negotiators to be very cautious in adopting any terms in a bilateral agreement which push Australian intellectual property law beyond its present boundaries or which extinguish the Australian Parliament's capacity to make laws in the interests of Australian citizens.
Harmonisation Intellectual property both under the Berne Convention and the World Intellectual Property Organisation arrangements require nations to protect authors and owners, to treat the intellectual property of other nationals as they treat that of their own citizens and to permit limited free access to information for limited purposes provided that such access does not interfere with the normal commercial exploitation of the owner (referred to as the three-step test). Australian copyright law reflects all of these principles. Australia signed the Berne Convention after Federation and has upheld the basic principles of international agreements on information protection and information access for ninety years. Other than the above principles, the Berne Convention and WIPO permit national treatment of copyright and the United States has taken full advantage of this in refusing to harmonise with international agreements on the moral rights regime. The moral rights of creators are separate from those of copyright owners and are, therefore, strongly opposed by the Motion Picture Association of America. There are considerable differences, even under the European Copyright Directives, of the treatment of individual European countries of access to information, database protection, the ability of libraries and educational institutions to digitise and communicate information and a plethora of other matters. There is, therefore, no validity in the argument that Australia must harmonise copyright terms beyond the Berne Convention period.
New media and cultural industries ALIA strongly supports the retention of Australian government regulatory power to ensure local content in film television and in the new digital media.
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