4 June 2004

Dr Helen Daniels
Assistant Secretary
Copyright Law Branch
Attorney General's Department
National Circuit
BARTON ACT 2600

Copy to action officer, Chris Creswell
E-mail to catherine.young@ag.gov.au

Dear Dr Daniels

Re: Australian accession to the World Intellectual Property Organisation WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)

Thank you for the opportunity to comment on this matter. The Australian Library and Information Association (ALIA) represents the interests of library and information services users. We support Australia's participation in international discussion and decision-making on intellectual property as a means of ensuring a fair balance between the rights of creators and copyright rights holders and the needs of creators and other information users.

ALIA strongly believes that Australia should not ratify the WIPO treaties until Parliament has had the opportunity to consider them in the free trade agreement deliberations and in the light of recommendations of various recent reviews of Australian copyright law.

The US Digital Millennium Copyright Act, which underlies the contentious terms of Chapter 17 of the Australia United States Free Trade Agreement, is not the only model for compliance with the WIPO Treaties.

Indeed the highly-prescriptive model of the DMCA goes against the minimalist principles approach of the WIPO treaties, an approach designed to assist the balancing of the interests of owners and users of information and of the different priorities of nations at different stages of social and economic development.

ALIA is concerned by the way that FTA haste is affecting policymaking and consultation on changes to Australian copyright law and on our effective international contribution to a balanced global intellectual property regime.

There are five Australian reports on intellectual property in the last five years whose recommendations appear to have had no effect on Australia's decision to accept FTA chapter 17:

• The Productivity Commission and the Intellectual Property Competition Review Committee reports found that extension of ownership protections do not serve the interests of Australia as a net consumer of information and recommended the application of competition principles to proposals for the extension of protection.
  
  
• Competition principles have not been applied to Chapter 17. For example the Australian Competition and Consumer Commission has concerns with the technological protection measures of the FTA, derived from the US Digital Millennium Copyright Act. These enable copyright owners to resist competition and parallel importation.
  
  
• Two reports of the Copyright Law Review Committee have unimplemented recommendations which are important to copyright user exceptions. The second CLRC report on simplification recommended the adoption of a broad fair-use concept. The CLRC report on Copyright and Contract recommended that uses permitted under legislation should prevail over restrictive contractual terms.
  
  
• The Phillips Fox review of the operation of the Digital Agenda Amendments demonstrated no overall dissatisfaction from owner or user groups and recommended that the Government resource a thorough empirical study of the costs and benefits of copyright protection. Lack of reliable evidence to judge the benefits and costs was also identified in the Allen Consulting and the Centre for International Economics reports on the impact of the Chapter 17 provisions in the FTA, even though those reports supported the Agreement.

None of these recommendations appear to have influenced Australia's contribution to the terms of Chapter 17.

The Australian Government's hasty commitment to Chapter 17 of the FTA is at variance with its considered debate leading to the Digital Agenda Amendments to the Copyright Act, which have (as you state in your letter) already implemented the main obligations of the internet treaties.

For these reasons, the Association repeats our recommendation that the Australian Parliament should have time to consider the above issues before a decision is made to accede to or ratify the WIPO treaties.

The Association hopes that further consultation on the issues raised in our necessarily urgent response to your tight time-deadline will be available. I will be happy to clarify issues arising from this response to your letter.

Yours sincerely
Jennefer Nicholson
Executive director