Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Legal and Constitutional Affairs I present the committee’s report entitled Review of technological protection measures exceptions, together with the minutes of proceedings.

Ordered that the report be made a parliamentary paper.

by leave—On 19 July last year, the Attorney-General asked the committee to inquire into and report on the issue of technological protection measures exceptions under the Australia-United States Free Trade Agreement. Technological protection measures, or TPMs, are software or hardware components used by copyright owners to control access to copyright material or its reproduction. Examples of TPMs include software encryption, region coding technology and passwords. Under Australian copyright law TPMs are a legitimate response by copyright owners seeking to protect their intellectual property from infringement. TPMs can also be disabled or circumvented by a range of means, including the use of computer programs or devices.

Article 17.4.7 of the free trade agreement requires Australia to create a statutory liability scheme for certain activities relating to the circumvention of TPMs. The article also specifies a number of exceptions to this liability scheme and contains a provision which enables Australia to introduce further exceptions to liability under certain circumstances. The focus of the inquiry by the committee was the question of whether any further exceptions under this provision are warranted within the parameters set by article 17.4.7. The committee also examined other issues relevant to article 17.4.7 that were raised in the evidence.

It is worth noting that the committee faced considerable difficulties in conducting this inquiry. The legislation which will implement article 17.4.7 does not yet exist, and there is very little information on the particulars of this legislation. Indeed, the government still has several months of policy development and consultation to go before the legislation is drafted. Crucial definitional issues remain to be settled, and no interested parties are able to at this stage demonstrate actual adverse impacts as a result of the liability scheme. All of these factors significantly complicated the work of the committee. This said, the committee has assessed the exceptions put to it and has also sought to develop a rigorous interpretation of some of the key requirements for further exceptions under article 17.4.7.

Of the many exceptions proposed during the course of the inquiry, the committee has concluded that several are warranted, including exceptions relevant to important sectors of Australian society and the economy such as education, libraries, cultural institutions, the information technology industry, broadcasting and government. It was also clear from the evidence that the exceptions currently permitted under the Copyright Act 1968 are important and ought to be maintained, and the committee has recommended accordingly. The committee has further recommended that the balance between copyright owners and users achieved by the act should be maintained upon implementation of article 17.4.7.

Region coding of copyright material—used on DVDs, for example—emerged as a prominent issue during the course of the inquiry. While region coding is entirely lawful, the committee was not persuaded by arguments that it is essential for piracy prevention or that it is a genuine copyright protection, nor does the committee see why consumers should be further restricted from enjoying lawfully acquired copyright material. The committee has therefore concluded that the unauthorised circumvention of region coding TPMs should not attract liability under the new scheme. Region coding TPMs should be excluded from the operation of the scheme. If they are included, exceptions proposed in the future for circumventing region coding TPMs should be permitted where they meet the relevant requirements.

I would like to take this opportunity to thank all those who, in writing or in person, were able to provide their views on TPM exceptions to the committee. The committee appreciated both the quality and quantity of evidence received from a range of groups and individuals in relation to this highly technical and complex inquiry. As chairman of the committee, I would like to thank the inquiry secretary, Dr Nicholas Horne, the committee secretary, Mrs Joanna Towner, and the secondee from the Attorney-General’s Department, Ms Kirsti Haipola, for their assistance.

The committee brought down a unanimous report. That is a fairly powerful indication of how the members feel about the recommendations. The committee believes that its recommendations will materially assist the government in the formulation of the legislation implementing article 17.4.7 and will help to ensure a sensible and balanced liability scheme. The committee is pleased to have had this opportunity to contribute to this evolving area of intellectual property law under the Australia-United States Free Trade Agreement. I commend the report to the House.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

by leave—May I first acknowledge the work that was undertaken by the Standing Committee on Legal and Constitutional Affairs and echo the sentiments of the chair of the committee that the secretariat performed invaluable work under considerable pressure. Whilst we routinely say these things in the production of reports, in this instance both the chair and I hold the work that was undertaken in the highest regard.

The fundamental starting point of this inquiry was to examine the complexities that arise between the meshing of copyright regimes that are necessitated by the free trade agreement. It is not always easy to mesh quite different legal regimes using different conceptual frameworks. The technical task in doing so is great, but the public policy issues are very important. Every dot and comma in copyright legislation is worth substantial sums of money to those who are in the market of intellectual property. The consequences for this are very important not only for those who commercially exploit copyright product but also for the public, whose access to materials should not be limited beyond that which we have broadly agreed by way of the balances that we have established in this parliament in the past. With that framework in mind, we sought to enter the task.

The chair of the committee has mentioned one issue that took a considerable amount of time but on which our conclusion was clear—that is, where a region coding currently might make it inconvenient or impossible to use DVDs or CDs purchased in one location of the globe without the approach that this committee has adopted. We have recommended that the region coding technological protection mechanisms be specifically excluded from the definition of effective technological measures, a decision which I hope will be welcomed widely by many who would be otherwise inconvenienced by this. I accept that it does have some economic consequence to the marketers, but what we are seeking to do is not to create artificial monopolies but rather to make certain that there is effective capacity to protect copyright and to ensure that the public is not inconvenienced more than it need be by those provisions.

There is one issue which we draw considerable attention to and use very strong language in respect of that I should mention. It arises because, essentially, the terms of the agreement provide quite inconsistently in respect of a particular matter. The provisions allow for exceptions—they allow the de-encryption or the accessing of materials irrespective of technological protection devices under certain limited circumstances—yet there is a blanket prohibition in the legislation which would appear to prohibit the possession, ownership and manufacture of the devices necessary to exercise that right. So, on its face, the agreement appears to say that doing A, B and C is permissible and then says in a different phraseology ‘but the practical means of doing A, B and C are forbidden’.

Clearly that is a conundrum. In the committee’s view, at paragraph 3.118, it is a ‘lamentable and inexcusable flaw in the text of article 17.4.7’; indeed, a flaw that verges on absurdity. What we have sought to do is to direct the government’s attention to the underlying policy that was put forward when this agreement was entered into, and we have drawn attention to the fact that the government stated in its response to criticisms of the agreement that it was entering into that there was no intention to take away from the existing entitlements for circumvention in the areas which were permissible. Bearing that in mind, and bearing in mind that thus far no satisfactory solution has been proposed regarding the lack of capacity to undertake the circumvention permitted by the exceptions under article 17.4.7, the committee is strongly of the view that the government has to devise a workable and adequate way of addressing this problem prior to the implementation of the liability scheme.

We say that those with exceptions will have to be able to lawfully exercise them, whether according to a statutory licensing scheme or according to some other mechanism of approval regime. Any lack of a solution will seriously endanger the viability of the many exceptions permitted under the agreement.

So those who are particularly interested in the area of copyright will find much in this report—much that they will agree with and much that they will contest, depending on the position with which they commenced and the interests they represent. But the committee has done its best to try to reflect the balances struck by the parliament in the past. It has recognised that some issues, particularly those regarding time-shifting and coding restrictions between geographical territories, are ones which most members of the public would prefer to be removed from copyright protection. We have tried to address, in a way that allows this parliament to give notice to the executive, the need to find some solution to the conundrum of how to deal with permitted exceptions, exists but no means of giving effect to those exceptions exists in a practical way.

I commend the report to the House, to the government and to the community. No doubt it will engender considerable further debate. We still do not have the legislation. I thank my fellow committee members, and I again refer to the work of the secretariat. They were under considerable time pressure and they did excellent work in preparing this report.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

by leave—I move:

That the House take note of the report.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.