Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The Copyright Amendment Bill 2006 contains a range of major reforms to the Copyright Act 1968 that stem from several reviews that have occurred over past years and from some major technological changes. Other parts of this bill implement obligations under the Australia-United States Free Trade Agreement which Australia is committed to implementing by 1 January 2007. We understand this is why the bill has been pushed through with such urgency, after being tabled only in the last sitting week.

These changes signify one of the biggest overhauls of copyright law that we have seen for many years. Unfortunately, much of the change has also heralded quite unworkable complexity and, in some instances, quite bizarre inconsistencies.

There are four main areas covered by the bill: changes to attempt to make the law more responsive to new technology and/or technology neutral, like format and time shifting; a regime to deal with technological protection measures or ‘locks’, if you like, that can be put on copyright material; fair dealing and fair use issues, which include new exceptions and some changed definitions and which have a particular impact on educational institutions, researchers and so on; and, a new offences regime and enforcement measures. It is hard to summarise in a few points what such a complex bill does, but those are the major changes. I am going to take some time to go through a number of issues that have arisen in those particular areas.

Of course, we acknowledge that some of these changes have been subject to extensive consultation, such as the technological protection measures. Save for a few exceptions in those areas, these will be a big advance. Others are changes that have taken schools, researchers and other stakeholders quite by surprise and could risk upsetting the careful balance that is needed between proper remuneration for creators and accessible use of material for clear social purposes. These are some of the issues that I am going to spend much of my time on.

Before I do that, however, I want to put on the record that I am concerned in an overarching way that the government has chosen an odd path for reforming our laws to deal with new technology. Instead of moving towards making the laws technology neutral, in fact a number of the provisions in this bill have gone into more detail and more specifics about what is permissible and what is not permissible in different formats of material, some with current technology in mind but much of it in restrictive terms and I think potentially restrictive for dealing with future changes to technology. Let me use a couple of examples to make this more general point.

A number of the provisions do not seem to reflect the reality of how people access and use legitimately purchased copyright materials. One startling example of this is that a sound recording copied for use on an iPod or MP3 player is limited to a person’s private and domestic use. We have been advised that it is intentional, as some of the stakeholders have queried, to limit that use to inside one’s home. I cannot see the point of a funky, portable new technology, which is being taken up in the thousands by consumers, if it cannot be used outside the home. Obviously, the regime is only trying to protect those who are downloading and using legitimately purchased songs. I will be happy if the shaking of heads in the advisers’ box is an indication that that is not what is intended by those provisions. But the fact is that stakeholders and our own office are being advised of what these new provisions will mean and the impact they might have on new technology and it is not sufficiently clear in the legislation. I think that is really important. Similarly, the limitation of one copy being made does not reflect the reality that many people transfer and save copies of material onto their PC and put them onto their MP3 players. If you delete something from your MP3 player, some systems will automatically delete it from the computer when you resync it. So obviously that is a problem that needs to be dealt with.

In contrast, of course, the bill is actually tackling the age-old problem of taping a TV show at home to play later. At last, what has been technically unlawful for all these years will be lawful under the new time-shifting provisions, which sensibly amend copyright laws to reflect the reality of private, non-commercial use of materials by many thousands of Australians. It would be a shame, though, if this opportunity to implement a whole new raft of measures, through a failure to understand new or emerging technology, again outlawed consumers’ everyday use of technology and captured those purchasing or wanting to use legitimate material. As we know, if the laws are out of touch with personal practice then they do end up being treated with contempt and they do not encourage the purchase of legitimate materials and their lawful use—something that I know both the government and the opposition are keen to make sure that these laws will do.

Many of the provisions in this bill have been released as exposure drafts. Others were first seen when the bill was introduced into parliament in its final form less than two weeks ago. In fact, even some of the provisions that were extensively consulted on have changed so significantly that it has caught some of the industry by surprise. A 200-page bill in a complex area of law where vast changes have been made from earlier consultations will inevitably lead to much disagreement. And as the bill in its final form was only seen two weeks ago, I think it is a little unrealistic of the government to expect the opposition, the parliament and the industry to be able to absorb, advise, propose changes and support a bill, all in that time frame. The expectation is unrealistic and I do not think—as we have often seen in a number of other areas in this portfolio—that is the best way to ensure that we get the best legislation when major changes are being discussed.

I do appreciate that this is an incredibly complex area of law, however, and I do appreciate that it is always a balancing act. I do appreciate that the industry often has competing and conflicting views, and I do not in any way reflect on the work that has been done by the officers of the department or the Attorney’s officers, who are trying to deal with a difficult issue. However, I am conscious that we are creating a much more complex copyright system rather than a more simple one, and I am, as I indicated at the start, worried that some of the impacts in the new technology area are going to make things more difficult for the future and will require us to be back here again balancing these issues in a very short time, when the technology develops in a way that we are seeing happen already around the rest of the world.

The Senate Standing Committee on Legal and Constitutional Affairs is going to have 10 days more than this House is going to have to be able to try and iron out some of the major problems that have been flagged. Hopefully, the government, as it has indicated it will be prepared to do, will look very seriously at any recommendations that come from that committee. We will be keenly watching what the committee reports and will save any specific amendments for the debate in the other place, rather than have them rushed through here when extensive consultation and negotiation are clearly still underway with the department and when major groups affected by the bills have hardly had time to collect their thoughts on some of these issues—let alone, in many cases, suggest amendments.

It may sound peculiar to the House for me to be referring so often to industry and user groups in a speech where, of course, it is traditional for us to set out our view, the Labor Party’s view, on this issue, but in copyright law, where the legislation is so technical, governments and oppositions would both do well to listen to the practical implications of their proposals. What are these changes going to mean for schools? Are creators going to be properly reimbursed for their works? Are these definitions going to be workable for enforcement agencies? All these questions are vitally important and cannot be answered with confidence in the current bill.

So the question, of course, is: ‘Does Labor support the bill?’ There are substantial parts of the bill that we believe are very positive and must be supported. Other parts are still subject to major ongoing consultations with stakeholders and, given that we expect significant change through that process, the Senate committee process and the negotiation with government, we will reserve our final position until the debate is on in the other place.

However, we do think that the bill as it currently stands has a number of major flaws. While some of these are technical drafting issues which no doubt can be resolved, a number do reflect important policy questions, such as the use by educational authorities of copyright material and the standard use by consumers of new technology. I will be looking at and following the negotiations and debate in the coming two weeks with a particular eye to the impact that will be had on educational institutions and to any additional costs, whether they are in terms of paying for additional copyright material or administering a more complex system.

I hope from my reading so far that the issues that affect educational institutions have been resolved, but I am yet to have a final view on that. We will be looking very closely not just at the impact on educational institutions but also at the way new technology is dealt with by the bill. I have already flagged a couple of issues, like that of using MP3 players. It is obviously positive that, in contrast to that, the bill does fix other issues—for example, the region-coding issue for DVD players, which is a positive change in the way of dealing with technology.

But I am concerned that many of the provisions are now more technologically specific rather than neutral, even though one of the aims of the bill was to try to make sure that copyright law was going to be increasingly technologically neutral. A good example is the insubstantial copying provisions, where there is one existing rule for print and a new rule that is going to apply for electronic media.

We will be looking to see whether this is increasing rather than decreasing the complexity of the copyright laws. And, as is always the case in the copyright area, we will be looking to see whether a fair balance has been struck in the way that the provisions are finally negotiated.

Particularly, we are going to consider the way the penalty regime works. We agree that there is a need to strengthen compliance with copyright laws, but we do not want to be heavy-handed with the consumer or the little individual player in this process. However, we do want to make sure that our laws are sufficiently stringent and are able to be used easily by our authorities to target importers and those with commercial-scale operations who are regularly breaching our copyright laws.

So whilst we can note Labor’s general support for the reforms, we do have a series of strong reservations, and Labor’s final position on the bill will be subject to the result of the Senate committee review and any amendments also put forward by the government.

The government has presented this bill as a package of balanced and practical reforms dealing with copyright pirates while also ensuring that ordinary consumers are not infringing the law through everyday use of copyrighted products that they have legitimately purchased. We support that aim wholeheartedly. We are unsure, however, whether the bill, with the very worthy aims which the explanatory memorandum sets out and with its 200 pages of complex provisions, is able to live up to all the claims that the government has made—particularly in terms of keeping pace with technology, keeping Australia’s unique regime and ensuring copyright is not brought into disrepute by technical and out-of-date revisions.

I turn now to some of the key features of the bill and issues that need to be flagged. I hope I will be able to cover most of them in the time that I have available. The bill introduces new offences and enforcement measures in schedules 1, 2, 4 and 5 that are aimed at tackling copyright pirates who are seeking to undermine the legitimate rights of copyright owners. It also aims to make the copyright offences consistent with the rest of the Crimes Act. The bill will create indictable summary and strict liability offences with a range of penalty options. The strict liability offences will be underpinned by an infringement notice scheme in the copyright regulations. These changes will provide law enforcement officers with a wider range of options depending on the seriousness of the relevant conduct. The bill also contains amendments to evidential presumption provisions in civil and criminal proceedings to assist copyright owners in the litigation process. This addresses something that I know copyright owners have complained about for a very long time.

The bill also contains amendments to enhance a court’s power to grant relief to copyright owners in civil actions which involve commercial-scale electronic infringement. Amendments to the customs notice of objection provisions will reduce the administrative and cost burdens on rights holders in lodging notices and providing security for notices. These provisions have been the subject of the least amount of consultations out of the whole package of changes that are set out in this bill, and the variation of penalties across the offences is substantial. Accordingly, we are in the position where user groups are fearful that the sanction regime is far too harsh. In contrast, some copyright owners fear the opposite, depending on the type of offences that the police pursue. There is a fear, I think, that they may opt for the lesser strict liability offences because they will be easier to prove.

We do need to strengthen compliance but we do not want to be heavy-handed with the consumers. We need to make sure we get the balance right in this area. There are a number of technical components that have also been raised to do with the various elements of offences that need to be proved. These need the attention of the Senate committee. We have sought some advice from the government on the range of penalties and the perception that they are much more heavy-handed than existing ones. We have been assured that they are not. At this stage that does not seem to be consistent with the other evidence that is starting to be submitted to the Senate committee. So I am sure those issues will need to be looked at in more detail in the process of the Senate committee review.

Schedule 3, on a different issue which deals with technologically neutral definitions, is one area where it looks like the objective of trying to make the Copyright Act technologically neutral is being put into effect. Unfortunately, many of the other new provisions that are in different schedules do not meet with that same standard. I also flag that in that schedule there is an issue that has been raised by ARIA—that is, that the definition of ‘record’ being changed to include electronic files will actually have a significant impact on the licensing arrangements for digital downloads and, for example, downloading ringtones. We know this is a growing industry. Again I hope that the government will be able to look at those issues to see whether that is an intended consequence of the change.

Schedule 6 deals with a range of new exceptions that are in response to the digital agenda review and the government’s Fair Use and Other Copyright Exceptions Review announced in March 2005. The fair use and exceptions changes introduced by the bill include time-shifting, format-shifting and a range of new exceptions. The new section 111 of the bill makes it legal for people to make a film or sound recording of a broadcast—for example, to tape a TV or radio program at home for their private and domestic use in order to play it at a more convenient time. The government has addressed some of the major issues of previous drafts, dealing with problems like taping for another family member to watch et cetera. However, there are still some concerns that the new definition has some odd limits. I will put these as questions rather than anything else at this stage. Is it intended that we cover only public broadcasts but not podcasts or webcasts? This is one of the queries where looking ahead at what might be a growing area is an important thing for us to do. Again I flag the question: what does domestic use mean? Does it mean that there should be some sort of geographic limit—that is, you can only watch it in your own house—or does it really mean that you can only use it for your personal use? Maybe you can take your video to the beach house with you on the weekend and watch it there. Surely these sorts of things are not supposed to be restricted. We do need some clarification on how that wording is to appear and to see whether there are better words that could be used.

The format-shifting provisions in part 2 of schedule 6 introduce a number of provisions which make it legal to reproduce material such as books, newspapers and periodicals, photographs, sound recordings and films in different formats for private use. This means, for example, that people can transfer music from CDs they already own onto their MP3 players et cetera. I note that the bill places restrictions on the type of format shifting that an individual can do and restricts the number of copies that can be made. The bill explicitly requires the destruction of temporary reproductions.

The popular attention that has been given to the one positive aspect of these provisions—allowing some recognition of MP3 players—has, I think, overlooked some of the other real questions as to whether the format-shifting provisions are in line with technology and the needs of consumers. I have already gone through the example of the problems this might cause if the one-copy rule stops people being able to store a copy on both their portable music player and their PC of material that they have legitimately purchased. Also because many of these provisions are technologically specific, which is contrary to the bill’s stated objective of being technologically neutral, there are odd inconsistencies that allow copying from one format—say, VHS to DVD—but not between formats: for example, from DVD to DVD. That does not seem to have any logic and indicates a lack of understanding of current and emerging technologies. Presumably, we do not want to be back here when the next era of DVDs, or whatever the next thing that comes out, is produced to say that it is okay to copy from DVD to the next format. What we are really trying to restrict is people just being able to use material for their own use and on single occasions, if you like.

Nevertheless, copyright owners are very nervous about the extent of increasing flexibility and giving an individual consumer too much leeway in making multiple copies and how this might be abused. I think this will be a major issue that the Senate committee members will have to get their heads around as to whether there is a better way of doing it. I do not think these questions are easy ones to answer so it is a shame that the Senate committee will not have more time to look at some of these complex issues.

The certain purposes provisions that are set out in part 3 of schedule 6 insert a new section 200AB that allows the use of copyright material without a copyright owner’s consent in certain circumstances. They are subject to an overarching test which is set out in proposed subsection (1) and for permitted particular purposes such as use by libraries and archives, by educational institutions, by those with disabilities and for the purposes of parody and satire. I do not think the four areas that have been outlined are contentious, although I know that some submissions to the Senate committee do not believe that the parody and satire exception is necessary. But the drafting that requires the interpretation of the general three-step test in proposed subsection (1), and then the interpretation of each purpose, has been very critically received in the industry and by consumers, albeit for different reasons.

The three-step test—the special case that does not conflict with normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the copyright holders—does come from international law and international agreements, but there is some concern expressed that this should be more of a drafting question for the legislature, not an interpretive question for the judiciary, and therefore does not need to be expressly set out in the bill. The approach that the government has taken is, I think, under major scrutiny. Some groups oppose this so strongly that they argue that it would be better for an overall flexible fairness test to be applied, which they believe would work in a much better way. Obviously, that would require a major rethink and a major redraft of provisions. Other issues are more specific—for example, the libraries argue that being a library should make them a special case and that each of the other steps should not have to be separately proven. The multilayered approach is confusing and it does not necessarily serve the purpose that might have been intended. Others query whether the ‘commercial purpose’ phrase would encompass their cost recovery rather than a fee that might be charged by an organisation that was operating for profit.

The Australian Digital Alliance argue that the combination of the tests in this provision will stop certain actions from operating even though they have been found elsewhere around the world to be TRIPS compliant. Examples are search engines that might be developed to improve accessibility to the web for obtaining legitimate copyright material. Obviously, it would be silly if, under the auspices of us introducing internationally consistent legislation, we were actually making our laws more stringent than ones that apply elsewhere. Practical problems have been raised with me, like the use in new section 200AB(3)(b) of the words ‘educational instruction’ rather than the broader ‘educational purposes’ test and whether this is an intentional limitation or whether it is perhaps just an oversight in the drafting.

The fair dealing provisions for research or study, which are found in part 4 of schedule 6, are new provisions which narrow the exception for research and study. Instead of the current exception that permits copying of 10 per cent of material or more depending on a range of ‘fairness’ factors, the new provision makes the 10 per cent an absolute maximum. The new subsection 40(5) will be more restrictive than the current arrangements, so issues such as whether the material is out of print, unavailable or only available overseas will have no impact in determining whether or not it is legitimate for an individual student to access or copy more than 10 per cent of material. I believe that these provisions seem unnecessary, although the government has argued that they are required by the US free trade agreement. Whether this claim can withstand scrutiny will be tested in the Senate committee.

There are a number of other provisions which I do not think I will have time to go through. There are concerns, for example, about how the copying of library and archived material will work for interlibrary loans. I think the libraries have raised concerns about that. There are concerns that the provisions that allow for copying for preservation purposes by key cultural institutions are being limited to Commonwealth, state and territory institutions established under law. I have to say I really cannot see why the industry groups have a strong concern with that. I would need to be convinced of why that area needs to be broader, but no doubt those arguments will also be made in the Senate committee.

However, I do think that only being able to produce a single copy seems to run contrary to best practice and is outdated in the digital environment. If a copy is being made for preservation purposes, does it really matter that two copies are being made for backup? Again, does it really matter if a copy is made for preservation purposes before material is deteriorating, rather than waiting for it to deteriorate and then saying that these provisions kick in? That does not seem to be the best way of dealing with maintaining appropriate collections of national significance. Given that the provisions are restricted to institutions that are set up under Commonwealth, state and territory law, I do not think that we will be granting a massive exception to a wide range of people who could abuse the rights being given under these provisions. It also does not seem to be necessary for the commercial test to apply in this instance, because the nature of the organisations that are able to benefit from this provision is very restricted, and most of them would be operating not for profit.

There are a number of other issues. The purpose of the amendment on the making of a communication in schedule 7 is to clarify the intended scope of the communication right. As I said at the beginning, I understand that the issues of concern in terms of caching and other things seem to have largely been dealt with, although I understand that there are still some negotiations going on. Similarly, with the schedule 8 provisions, particularly the new section 28A, I understand that there are negotiations going on where both sides are endeavouring to find a better way to draft those provisions dealing with a communication in the course of educational instruction. Let me repeat for the record that our concerns in those debates will be to see whether or not schools and educational institutions are going to be disadvantaged. If there are going to be significant costs or administrative burdens put on them that are new to the existing ones, we will be very wary of supporting provisions that will do that.

Similarly, although it might seem minor, with part 3 of schedule 8—the insubstantial parts of works in electronic form—I noticed that CAG, representing the schools sector, argue that this change will effectively cost schools a lot of time and money, something in the order of $14 million. They do note that this reflects lobbying that has been going on by CAL in the last few years about the cherry picking of electronic material, but we do need to ensure that the discount that schools get for insubstantial copying does retain some meaning and that we do not penalise schools for something that individuals would be able to do. Obviously, the statutory licensing regime can cover these issues, but if what it ultimately hides is a major cost increase for the educational sector we would be very concerned about that.

I am sorry to be jumping around a bit but can I turn to part 5 and the new section 200AAA that deals with caching. As I flagged, I know that people are working on how these provisions will work. Everyone seems to support the aim, but there is a bit of concern in the drafting. There is a concern about whether passive caching is covered where a copy is saved automatically onto a computer. We have been advised that this may be covered by the temporary copying protection that is found in sections 43A and 43B, but this should be made clearer. I note also that APRA wants clarity that existing protections remain, including not being able to download from file-sharing sites and other things as part of the deal in dealing with these issues, and they seem to be legitimate issues to be taken on board.

Labor supports the provisions in schedule 9, introducing new offences to tackle unauthorised access and use of subscription and encrypted broadcasts. We understand that schedules 10 and 11, dealing with the Copyright Tribunal, are changes that are broadly supported and will enhance the jurisdiction procedures of the Copyright Tribunal.

Finally, I will spend a little time on schedule 12: technological protection measures. The bill introduces a new scheme to create a more secure environment for copyright owners to release their copyright materials. It introduces a liability scheme to target people who circumvent TPMs, in addition to those who manufacture or supply devices or services used for circumvention. As we know, these TPMs are technological locks that copyright owners use to stop their material from being copied or accessed. TPMs are also used by owners to support business models for distributing materials such as films and music online and self-protecting against increased privacy issues.

The exposure draft on technological protection measures was the subject of widespread consultation. As I said at the beginning, these are generally considered satisfactory to most stakeholders. However, the liability scheme in the bill includes specific exemptions, including creating a worthy exception for region-coding devices and allowing Australian consumers to use multizone DVD players. This is an issue that was a major annoyance to consumers, but I might flag that there are some concerns that the drafting of the combined reasons—I think the words are ‘partly for commercial purpose’—may mean that, rather than protecting copyright material, the exception still allows distributors to be able to use these locks. I have not had the time to give the matter the attention it deserves, but we will be looking at that and of course senators will take account of those issues.

I note that a number of recommendations from the LACA committee have not been picked up, although I have been assured that most of those will now be dealt with in regulations. I am also concerned that the exemptions that apply to consumers only seem to work effectively if a consumer has the technical know-how to be able to use it, as the exception does not allow someone else to do it. I think these are simple measures that do not seem to have been dealt with. I am sure that the other exceptions, such as obsolete TPMs, which I think will be picked up in the regulations should deal with those other issues. But we will need some ongoing consultation in that area. I am sorry to have taken slightly more than my allocated time, but it is a complex bill and we look forward to working with the government on resolving these outstanding issues. (Time expired)

Paul Neville (Hinkler, National Party) Share this | Link to this | Hansard source

Copyright is very important in encouraging and rewarding creative work. It ensures that creators are fairly remunerated for their work. It fosters creativity and spurs on the distribution of new and original works. It is the cornerstone of the successful development of cultural industries and a guarantee that a creative author of a particular work receives financial recognition for his or her efforts. As is to be expected in the creative field, technology is constantly evolving and our laws must keep pace with this evolution.

Amendments contained in the Copyright Amendment Bill 2006 will ensure that our copyright laws remain amongst the best in the world, while extending greater flexibility to consumers. Keeping pace with changing technology is not easy. When this government passed the Copyright Amendment (Digital Agenda) Act in 2000, the legislation was groundbreaking, putting Australia at the forefront as one of the first countries in the world to update its copyright laws to deal with the digital revolution.

But since then the internet and digital technologies have created new challenges and opportunities all affecting copyright. For consumers, more copyright material is available online and can be easily transferred into different formats. Copyright owners have new distribution channels. But the owners also face challenges, such as widespread unauthorised file sharing of music and films. As it stands, millions of Australians are technically breaking our copyright laws every time they reproduce copyrighted material for personal use—everything from copying music from CDs to MP3 players to recording a television broadcast to be watched with family or friends at a later time.

The bill gives people who own copies of certain types of material the ability to copy that material into different formats. For example, books and magazines will be able to be scanned so that they can be used in digital devices. People can also copy music from a personal music collection into a different format. For example, privately owned CDs, audio tapes or vinyl records will be able to be copied into MP3 or other digital formats to use in an iPod or in a computer. The case of copying musical material into digital format is a very pertinent example of why our copyright laws need updating to keep abreast of this modern technology.

This year Australians will spend around $30 million on digital music downloads and recent research done by business information analysts IBISWorld predicts that the figure will double by next year. By 2010, it is expected that the figure will have grown exponentially to be worth $200 million. That is a huge increase and it is proof that the way we access, use and listen to music is transforming our entertainment quite rapidly.

The CD market has matured as consumers turn to digital music players such as iPods and make more use of features such as iTunes and mobile ringtones. In fact, by 2010 the mobile phone ringtone market is expected to post double digit growth, which is double the predicted growth rate for the total recorded music market. Obviously, our local music industry has to embrace these new technologies and the law must always keep pace with them as they emerge.

The bill also allows other forms of media to be copied into different formats to suit the changing face of technology. For instance, analog copies of movies and documentaries will be able to be copied into digital format—that is, to DVD format. The bill also extends the right for libraries, museums, archives, education institutions and people with a disability to access copyright material for the purpose of teaching. By providing more flexibility in using copyright material for socially useful purposes, we are opening up a whole new sphere of online learning for members of the public and giving people with disabilities the tools to access material which they may not have previously been able to obtain. Hand in hand with this increased flexibility is a strengthening of copyright protections for these new materials.

Given the potential of technology and its rapid development, copyright owners face an uphill battle to protect their interests into the future. The Australian Institute of Criminology has stated:

Privacy has become a growth industry, so much so, that it may strain the capacity of governments to control it.

The AIC has already reported that the advent of digital technology has further enhanced the possibility for forgery, plagiarism and other offences against intellectual property. I understand that the agency will be researching the nature and extent of piracy and counterfeiting in Australia. The reality is that it is increasingly easier to infringe copyright, so this bill introduces reforms to combat online copyright piracy and piracy which takes place in the wider community.

A 2001 report commissioned by the Australian Copyright Council and Centre for Copyright Studies reported that for the period 1999-2000 Australia’s copyright industries contributed $19.2 billion in industry gross product. In terms of value-adding, this represented 3.3 per cent of Australia’s gross domestic product at that time, proving that the value-added contribution by our copyright industries is of significance to the overall Australian economy.

Copyright reliant industries are also a significant employer in Australia. The most recently available figures indicate that in June 2000—the figures are not totally up to date but they are an indicator—about four per cent of Australia’s workforce, or around 345,000 people at that time, were employed in copyright related industries. I suppose we can extrapolate from that that the figure will have expanded in more recent times. This is comparable to employment levels in sectors such as government administration, defence and personal and other services.

The industry also has a growing employment profile, with job numbers increasing from around 312,000 in 1995-96 to nearly 345,000, which I mentioned, in 1999-2000—representing an average annual growth rate of 2.7 per cent. Again, if we extrapolate that and go forward six years we can see that it will have increased by about 16 per cent since then. These statistics underline the importance of getting our copyright laws right and protecting income, jobs and exports that Australia relies on but, at the same time, having a strong and flexible enforcement regime.

I wish to comment briefly on the concerns of the shadow minister. She was stretching the elastic a bit when she asked whether we could record material for personal or domestic use but it would not be useable outside the home. My advice is that, if you are using a recording device while jogging, that does not offend. If you are playing music in your car, that does not offend. Where it would have an implication would be in recording film or music clips—the hand-held devices which would come into channel B, which we are likely to see in the not too distant future. You can understand that that would offend because that is the very field which such technology will deliver to the public.

The bill is sensible and I commend the minister. I believe the bill will ensure that Australia remains at the forefront of copyright control. I commend the bill to the House.

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

Copyright law is an essential protection for those in creative communities because it is the means by which their endeavours and artistic creations, their work, their productivity, become remunerated because their product is protected by law and the use of and copying of that product is not permitted otherwise than in accordance with the terms of the legislation. But what was once a relatively simple and easily understood field of law has become increasingly complex and dense over time.

I was responsible for what I hoped to be some simplification of the law when I commissioned, as the Minister for Justice, the copyright convergence report which tried to ensure that we expressed the obligations of the copyright law in media neutral terms so that it applied irrespective as to whether a work was produced on paper or electronically and recognised that, as we moved into an increasingly converging world, our legislation also had to adapt and be responsive to it. I recognise that, since that time, much has changed in the legislative field and much has been necessary in relation to that change, but one of the unfortunate things that has happened alongside this change is that we have not simplified the law; we have made the law much more complex, much more dense.

One requires scholarship of an inordinately high degree to simply understand what the basic obligations are in a number of areas. It is increasingly a field dominated by specialist lawyers and one which the ordinary layperson is likely to find themselves entirely excluded from understanding. That is the case with the Copyright Amendment Bill 2006 we are addressing today. The legislation we address today largely arises out of the obligations that we accepted when we entered into the US free trade agreement.

I was privileged to serve on the House of Representatives committee which reported to the government on the exceptions that should apply so that Australian consumers would not have their access to material which was previously permitted to be reproduced without restriction restricted further by the free trade agreement. But of course the free trade agreement had to be taken into account and it imposed obligations on Australia. Interposing, might I say that it is ironic that, despite all the talk about how the free trade agreement was going to benefit Australia, since its passage the terms of trade in Australia-US trade have turned against Australia. We have less trade with the United States than we had previously; the United States has more trade with us than it had previously. Economically the good that was supposed to be had—the billions of dollars of enhancement that our economy was supposed to receive in relation to be free trade agreement—has proved to be a chimera. Certainly, to date, notwithstanding the appointment of Austrade officers across the United States to deal with the upsurge of interest in that country in Australian exports, sadly, quite the opposite has occurred.

It must, at least I hope, be cause for some second reflection for those who so passionately argued the case that this would open up the opportunity for a large trade advance for Australia—if indeed the pattern does not change soon. We get these things oversold to us far too often and I think we were oversold the benefits of the free trade agreement with the United States. But, nonetheless, one of the areas that we have to adapt to now is to the changes in the copyright regime.

I regret that the government has not picked up in their entirety the recommendations made to it by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its report Review of technological protection measures exceptions. The government’s response has been tabled with the legislation. It picks up perhaps two-thirds of the recommendations of the House of Representatives committee and rejects about one-third. But key amongst those propositions which it rejects are those of the underlying philosophy of approach. Our recommendations 8 and 9 were that the government adopt an approach, which we set out in our report at paragraphs 3.55 to 3.64, in relation to the ‘particular class of works, performances or phonograms’ criteria in article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement when preparing the implementing legislation; and further that the government adopt the committee’s approach, set out in paragraphs 3.87 to 3.96 of the report, to the credibly demonstrated actual or likely adverse impact criterion in article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement when preparing the implementing legislation.

The government, rejecting those propositions, took alternative advice including the advice of its own advisers in relation to the Vienna Convention on the Law of Treaties and has substituted an alternative set of approaches. That set of approaches is far more prescriptive. It is less sensitive to Australian interests and those that the committee proposed. I remind members of the House that the parliamentary committee is a committee chaired by a government member, made up of a majority of government members, but which, on this occasion, made, I think, a unanimous report. I certainly do not recall any dissent from the ultimate report. It was a report that dealt, I thought, in a very timely way with very complex matters and the balance that we had proposed was one which was in Australia’s interests. I rather regret that those particular recommendations, were not proceeded with. Indeed, I think it will create difficulties in the future because, wherever else in their response to our recommendations that the government have said, ‘We don’t believe that the evidential base or necessity for a particular exception has yet been established,’ they refer back to that criteria as having to be met before reconsideration would be given. That sets a bar that I think is too high.

The specific matters where I welcome the approach of the government is where they have agreed that the code arrangements on disks which try to limit the utilisation of those disks to particular geographical areas will not be regarded as technological bars that are privileged under the agreement. In other words, you can legitimately purchase and use devices to ensure that, if you buy a CD or a DVD which is geographically designated to play in only a particular region, you can play it in Australia. That is a smart acceptance of a recommendation that we put forward.

We were also keen to see the government look at format shifting in a much more comprehensive way. We made recommendations suggesting that be looked at because, in a world of convergence, people format-shift. It is quite a legitimate thing to do. The government has said that it will look at this further, but there was a key opportunity missed here and it will be hard to deal with it in the future because, if we do not set it up at the beginning, there is always going to be immense pressure from the owners of copyright to prevent there being further exceptions because they generate their remuneration from it.

I started out saying that it is perfectly legitimate and proper to have copyright laws to protect the intellectual property and creativity of those in the production of works and, indeed, those down the chain who produce, license and sell copyrighted materials. But, on the other hand, there is a very substantial public interest. Our committee said that there was a public interest in making certain that people can use these materials without undue restraint. The government really ought to know, and does know, that format shifting is something that Australians do routinely. To the extent that it is a technical breach of the copyright laws, we have missed an opportunity to tidy them up and to specify where those limits are in a practical way, consistent with what I believe to be the spirit of the US free trade agreement. That opportunity was not taken.

I also regret that our recommendation 27 in paragraph 4.169 was not taken up. That was that the proposed exceptions to liability for circumvention for fair dealing with copyright material for criticism, review, news reporting, judicial proceedings and professional advice, and the inclusion of copyright material in broadcasts and the reproduction of copyright material for broadcasting, be included as permitted exceptions. The government did not accept our recommendation for fair dealing with copyright material for criticism, review, news reporting, judicial proceedings and professional advice. The argument that the government made that the evidence did not sustain the case is just nonsense. It recognises that submissions were made but, for reasons which I find completely unfathomable, it says that it did not meet the requirements of article 17.4.7(e)(viii). I have already expressed my concern that the government rejected our in-principle approach to that article and how it should be applied. I think that is a matter of considerable regret but, even on the terms of the government’s own alternative formulation, how it could reach the conclusion that those particular matters should not be legitimate is beyond me.

I understand that this legislation will do nothing to improve the clarity, the ease of access or the capacity to understand copyright legislation. Copyright legislation now is a bugger’s muddle as far as the ordinary citizen is concerned. It is impossible to understand, dense and impenetrable. Some of that complexity is unavoidable. At a future date, one would hope we have the opportunity—if we are not too constrained by extra treaty legislation obligations that we accept—to run a bright line through all this and clarify it so that we can get back to simplified legislation that expresses the fundamental principles with less impenetrability and less complexity. That may be an idle dream, because every dot and comma in copyright legislation is potentially worth hundreds of thousands if not millions of dollars to owners of copyright entitlements, but it is an attempt that should be made and certainly the fundamental principles of copyright law have been obscured for a very long time in a mass of detail.

This legislation does not improve that situation. It is not bad legislation; it is not immoral legislation. It is a fair attempt to deal with some of the issues that were thrown up by the treaty, and the treaty itself imposed some complexities. I regret that the government did not take the philosophical approach that we recommended in relation to the exceptions that are permitted. There still remain a number of areas where people will return in the future to look at particular exceptions that are appropriate or may be appropriate for addition at a later stage. I think the government has created a framework that will be hard to operate and difficult to apply in terms of those future reviews. But I conclude by acknowledging that the government did accept two-thirds of the recommendations of our committee, so I should give it two-thirds of the credit for goodwill in relation to the process and restrict my criticisms to a modest level, given that circumstance.

I know that this is not an easy area; I have had ministerial responsibility for it. I do not pretend that at the time of my leaving office copyright law was less complex than it had been when I started. In fact, I think that I was probably one of the people who started out with a starry-eyed idea that we could have a simplification and move to a media neutral approach, deal with convergence and do it all in a way that would be relatively accessible. I think we did at least get to a media neutral convergence approach, but it was not any more accessible; it was more complex. The pattern of increasing complexity has continued, and this legislation now is so dense that I think the attempt of parliamentarians to come to grips with it, unless they spend a very considerable period of time examining it with the benefit of expert advice, is limited. That is true of any artist or any creative person. It is true of those entering into the business of licensing copyright materials or selling it, retailing it. Certainly it is not legislation that invites you to understand the principles at first blush and on first reading. It is very dense and very difficult.

I thank the government for having the good grace to pick up the majority of the recommendations of our committee’s response. I leave on record the criticisms about the basic approach to the exceptions in the legislation, and I would hope that at some stage someone wiser than I or those who have had charge of this matter in the past will find a way to express the key principles of copyright law a little more simply and a little more accessibly, because if we keep going this way we will have something rivalling the tax act in its size for copyright law, and the basic underlying objectives will be lost in a maze of detail.

Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

I find it very refreshing to have a former minister concede that he might have been wrong or that he might not have been able to fix the set of problems he faced while he was a minister. The attempts of governments and ministers to regulate and deal in areas as complex as copyright law, despite the best of intentions—starry-eyed or not—do not always mean that you can fix it once and for all and that you can do it necessarily very easily or readily in an area as difficult as this.

That being said, I wish that when the member for Denison was minister, despite looking at these areas of the new technologies and so on, he might have looked at some of the key issues that are dealt with here in our debate on the Copyright Amendment Bill 2006, particularly fair use. I was born into a penal colony in New South Wales. It moved on from its definition of that to a colony of the empire and then to a self-governing colony which was part of the Commonwealth of Australia. But let us look at where we started and the way in which we have treated people up until now and the way in which they got here in the first place. Many people committing relatively minor crimes were taken in a vast grab bag of legal procedure, legal process and sets of rules which said, ‘If you do this, you’ll cop seven or 14 years of transportation or you may get life; if you go too far and do too much, then you could hang by the noose at Tyburn Gate.’ So the lucky people, I suppose, ended up coming to the penal colony of Australia. But if you look at what very many of them came for within the context of the time, you will see that they came for relatively minor things, although there were certainly some dedicated criminals who were relatively big-time in what they did.

But the principle is this: if you create a set of laws that will make criminals of most people in a society, you can lock a whole lot of them up but you may in fact continue a regime in which people are innately criminal in their activities; they are innately unlawful in their activities. And what have we got with regard to the copyright amendment act? We have that very situation. If you look at the way people actually do things with regard to copying material—and have almost from time immemorial, certainly in the modern era—you will see that most of what people do in the act of taping video programs and watching them at a later date is unlawful under our legislation. It is illegal; effectively it is a criminal act, and we have put people in the same category as our original settlers. Part of the revolution in this is that we might say, ‘What you’ve been doing all this time’—and I am as guilty as hell in that regard, as most other people might be—‘is something we have said is legally not on but we will not punish you necessarily, except for those sets of enforcers from particular publishing companies who have gone to raid people and put them in the slammer.’

I do not have a problem at all with us dealing with people who are pirating material for active sale to the broader community. The problem was with CDs, DVDs and other material—and, prior to that, tapes or whatever—and selling those for profit. The problem has always been with private use. We have not, I think, throughout the whole history of our dealing with the Copyright Act, ever put Australian private users in the central place.

Believe it or not, the Americans have had fair use provisions for a great deal of time. We have been stuck in a position where we have said, ‘What you’re doing is not right and we’ll punish you if you get caught.’ So I think the changes here, particularly in regard to fair use, are very important. What are those fair uses? One is time-shifting, which I have been talking about—making it legal for people to tape TV or radio programs at home for their private or domestic use in order to play them at a more convenient time.

Now, the notion that, having paid for something in the first place, you have to watch it at that particular time and no other is foreign to the way we deal with things on a practical basis. A lot of people tape a lot of things and never have time to go and watch them. They may have the intention of time-shifting, but they will only watch a proportion of what they have taped. So the number of things that are copied is disproportionate to the number actually used by the end user. That is probably part of the archival nature of human beings; they store things away, almost bowerbird-like.

If you read all the copyright material in the legislation you will find that the way in which the legislation has dealt with that has meant that every iteration was, previously, an unlawful act, and people could go into the slammer for doing it. People have not taken that material, gone out to the local community hall, bunged it up on a screen and charged people an entry price to come and see it. If they were doing that there certainly would have been absolute harm to the original copyright holders. They would have been done down.

In the past our legislation, properly, has dealt with that, as it has dealt with it here in this legislation. We are saying, ‘Okay, if you do it just for your own use, in the normal way people do it at home, then it’s okay.’ This is a major step forward. The member for Denison should have grabbed this while he was the relevant minister. And he has paid his obeisance to the parliament and laid his guilt before us in terms of what he could and could not do.

This is partly constrained by the fact that attitudinally we have had a mindset that we could not go this far because copyright has been a straitjacket, where those who own it—not the beneficiaries at the end, the musos or the people who write the books, but fundamentally the major companies—had demanded a really strict regime in regard to copyright. We know what the effect of that has been in the Australian market in terms of access of individuals to that material. But there have also been constraints on the market because we took so much of our material from England, being part of the old empire and Commonwealth, and we held the United States out and stopped them getting to the market with cheaper books, when that was the game in terms of what material was there and whether you could have competition in relation to that.

We also extended this very British notion that we needed to keep this straitjacketed, whereas the Americans had a much stronger fair use provision and argued that if people were not seeking private profit for it they should not be criminalised. Actually, this is a bit difficult because one of the things we are dealing with here is how you flexibly deal with this area and the dynamics of change in a digital era.

In the analog era—of copying stuff on a gestetner or a photocopier, or copying tape to tape—unless you had a very big and very costly process and did it on a privateering basis it was difficult to do those analog conversions and those kinds of duplications. It was of great cost and it was messy. But digitisation has dramatically transformed this landscape. It is now possible to take a full digital copy of material despite the efforts of the major producers to lock those down. And that is something I want to say a little bit more about in a moment. The pirated material of five years ago, which came out as an MPEG1 version of what was being shown in the cinemas—people had taken it by hand-held cameras and so on—were run throughout China and East Asia. They are still available in that sort of format.

There is a capacity now to access this in other ways and to access it digitally, either through downloading through Apple’s site—because Apple has now dramatically expanded what is available through the iTunes site; it is not just music or radio programs—or through a vast number of podcasts. They are provided free; the essential nature of them is that they are in the public domain. But there is other material that they have now started. They started with their Pixar films—very short animated films, starting with the original one when Pixar was founded—and they now have a series of those.

But they have recently dramatically changed the landscape because they are allowing a download of TV series and first release motion pictures. In the original release they had their Pixar films. Even though they were MPEG4 and capable of relatively high resolution, they downgraded that format when they first put them out—they were 320 by 240. In this second iteration they have doubled the size of the picture so that it is 640 by 480. It is almost DVD quality. That creates an entirely new market in terms of the delivery of motion picture material.

But what has happened in the way in which Apple have done this, for instance—and other people are now following them, because Microsoft have launched their Zoom Player, which is a portable media player which is partly dealt with by the provisions that we have here in relation to format shifting—is that Apple have said, ‘Here’s a good which is covered by copyright, but we recognise that under the fair use provisions in the United States you can buy this good in the first place and use it in one particular way.’ But they have gone further and said: ‘If you buy this good from us then we will not only license you effectively to use it on the computer that you originally downloaded it on but also let you download to an iPod and take that iPod with you anywhere you want to in the world to replay it. We will in fact allow up to five different computers to be licensed at any one time if they are in your control.’ Why? Because families have lots of computers these days. It is a family product, and that is the idea in terms of how to do it. So if you legally bought the product and if there is a recompense back to the copyright owner then Apple allows an efflorescence in terms of the formats that it can be used in and the types of technology that it can be used in. You can make it cartable.

There is a greater danger in this area, I think, than what Microsoft has just proposed, because Microsoft has entered the world of being able to share material between different users of its Zoom Player. That is one of the advantages, it has argued. That gets us back to the copyright area that we have seen here in Australia with Kazaa, I think it was—one of the peer-to-peer networking companies. It was set up and made enormous money worldwide but now has enormous debts that it has to pay to people because what it was doing was found to be fundamentally illegal—taking copyrighted material and then swapping that between people. Microsoft potentially puts itself into that position.

I note the density of this bill, which the member for Denison and everyone else dealing with it pointed out, but in this area it is necessarily so, because we no longer live in that analog world and there is the capacity to format shift in a number of fundamental ways. We have to deal with not only the originators of content but of course the fundamental owners of it, and that is the large companies, whether it is the Sony Corporation in America or Apple, which has now bought into Disney studios and will, I think, in the end take over Disney effectively, because Jobs is capable of doing that. He has done this before. There is a dramatic change in the landscape and it is essentially coming from the Hollywood studios, the biggest producers of material that most people want.

There is a correlative thing here that is important for Australia. Our area of advantage is often in the gaming area, and the question of the copyright in gaming is also extremely important because it is digital and can be copied relatively easily. How you protect it is important. So the provisions within this act are trying to allow fair use, either in terms of the time a person watches it or in format—how they watch it or indeed where in the world they watch it. What goes with governing that is a bill which tries to keep pace with a very rapidly moving area.

We have seen from the major companies, the companies in Hollywood but also the distributors, a range of different technologies to keep that copyrighted material locked down. There is a young fellow who has just broken Apple’s locks on the iPod and he says that it is now possible to take what is available from their iTunes store, which was only playable on iPods, to a Zoom Player or to Toshiba’s player. There is another element of this: even though someone is capable of doing it, what is the industry’s response going to be to something that in fact breaks the monopoly of a particular company? Microsoft argues that they will not take that approach, but all the signals are that they will lock it down and just have a single siloed approach in order to try to protect their market.

But it is also the case that this bill needs to deal with much more advanced algorithms to protect data and to protect copyrighted material. They are available now and are coming to market with the advent of HD-DVD, high-definition DVD, from Toshiba and other members of the consortium that they are involved in. Those discs will take about 15 gigabytes of information. The complementary one that is in competition with it is the Blu-ray DVD, which will in fact double that. It will take about 29 to 30 gigabytes of information.

Why are they around? What they have done is to take the same DVD disc that we have been using, which is the same as the CD disc, and change the type of laser that they are using from red through to blue, and with that better laser they can write smaller pits and dramatically increase the amount of material that is placed on any particular disc. That is necessary because high-definition television and high-definition programs are much more rich, not in the content, because that is the same, but in the level of presentation, the degree of richness of the image. It has about five times the amount of storage that you would need. As that penetrates the market for time-shifting purposes and format-shifting purposes, that will need to be taken into account as well.

There is one other piece of technology that should be emerging this year, running strongly into next year, and that is an entirely different approach from the DVD approach to storing content. It takes what is virtually a 3-D bubble and puts the material at different layers. Whereas you are looking at 30 gigabytes for a Blu-ray DVD, this takes that up about 10 times, so that is 300 gigabytes being stored in just one block of information. It is in the nature of the capacity to store high volumes of information and to then rapidly transmit that from its originating source, but the companies that own it need to be able to lock it up.

The other element of this that is important to what happens down the track is the way we deal with the normal fair use provisions that we have had in the past, which this bill directly deals with, in terms of our great institutions of learning. Because so much has now been digitised, we actually have to think about this in different ways. If you think about the way the parliament has addressed this problem of getting information from the media and providing that in a timely way to members of parliament, they have used the old cut-and-paste method with newspaper articles. They physically put them in. Now they make images of them as PDF, portable document format, images and place them at the disposal of members as images. There are a whole range of other ways in which it can be done, such as directly electronically, and that is gradually being done.

There is a series of problems for universities in this age. A whole series of universities have tied up with Google and allowed their material to be scanned and put into Google search engines and offered to the world, some as copyrighted material and some not as copyrighted material. This is a great challenge to the whole world of existing copyrighted material in written form, when you are dealing with the world of books—and some of our libraries are participating in that. The reaction of industry in the first place was simply to say that they were not going to do it, which is why Google suspended it.

This is a dense piece of legislation, but it necessarily needs to be so. This bill has caught up with the times—the times have finally been recognised. In the past 50 years our capacity to use and store material at a different time or in a different format has finally been recognised. This bill says it will not be unlawful to do that—and it is about time it were so. I am glad about that not only for myself but for all the commonality of people who are otherwise designated as criminals or, in the colony of New South Wales, as participating in unlawful behaviour. I congratulate the Attorney-General on taking this major step and I commend Labor’s approach to the bill. (Time expired)

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I thank all members on both sides who have participated in the debate on the Copyright Amendment Bill 2006. It has been a very measured and sensible discussion about very complex and difficult issues. The debate has reflected an enormous amount of goodwill, which we do not always see in this chamber. I appreciate the observations that have been made by the member for Gellibrand, the member for Hinkler, who has had a longstanding interest in these issues, the member for Denison and the member for Blaxland.

I think these reforms are very significant. They cover a wide range of areas. I have been personally seized of the importance of progressing these matters at an appropriate pace but achieving substantial reform. It is important to understand the position I come from. I think creative activity is important. People will only engage in creative activity if they are properly rewarded. Copyright is one of those areas of intellectual property protection that we have to acknowledge. It plays a very important part in ensuring that Australians who are innately very creative and skilled, but do not always have market size on their side, are able to benefit from the work they undertake.

These are sensible and balanced initiatives to ensure that we properly reward people but do not unreasonably disadvantage consumers. Some of the reasons for reform have flowed from the free trade agreement with the United States. That has certainly prompted me to look at these issues, because we have to fulfil certain obligations that we have entered into with the United States. Certainly, when you look at the law in the United States, fair use has been properly accommodated in a scheme which is reasonably flexible and suits the circumstances of the United States. But we here in Australia have not had the benefit of the same sorts of fair use arrangements. In fact, many Australians were in breach of our law, because it had remained unaddressed over a long period of time. I appreciate the honesty of the member for Denison, who said that he had responsibility for this issue at one time and had not addressed it. When people want to tape at home their favourite program—for me it is probably something like The 7.30 Report or Lateline

Julia Gillard (Lalor, Australian Labor Party, Shadow Minister for Health and Manager of Opposition Business in the House) Share this | Link to this | Hansard source

Ms Gillard interjecting

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

‘You should go out more’—I hear the comment! I make the point that taping programs is time-shifting and that, while nobody thought they were really committing an offence, it has been an offence under our law. People are using new technology; they take it up far quicker than I do. My children go around with iPods and other sorts of equipment. When I find a piece of music that I like—that is fairly hard to find—I tape the record and listen to it on the tape deck in my car. Does that say something about me? Modern people put it on their iPods. Having bought the copyright material, they expect that they are able to use it in another form. That seems very sensible to me. What we are trying to do is, in law, deal with these issues.

Equally, you have to give people who own copyright the opportunity to ensure that it is properly able to be enforced. The measures we have been putting in place here, including on-the-spot fines and a whole lot of other measures, give a full range of offences that can be effectively used. We have the technological protection measures that flow out of the free trade agreement. I would like to thank the member for Denison, the member for Gellibrand and my other colleagues who have contributed through the House of Representatives Standing Committee on Legal and Constitutional Affairs report on technological protection measures. This was a complex area in which I felt it was desirable that the parliament addressed its mind to these questions before we saw a complex bill. Equally, in relation to these measures, there has been a period in which the government has been involved in very extensive discussions with the wide range of stakeholders.

Although this is a technical area, this bill will have an impact upon our constituents. It will enable them to take advantage of new technology. It builds on our groundbreaking report on the Copyright Amendment (Digital Agenda) Act 2000, which brought our copyright laws into the digital age, and the major changes that were made in 2004. This government does have a strong record on copyright reform and continues to ensure that, in a period of change, our laws are world-class. The important reforms included new exemptions to make our copyright laws more sensible and defensible, along the lines on which members have already spoken.

The bill is a result of extensive consultation and it delivers on a number of copyright reviews undertaken in the past few years. They include our responses to the fair use and other exceptions review, the review of the digital agenda act amendments, the review of protection of subscription broadcasts, the Intellectual Property and Competition Review Committee’s review of copyright under the competition principles, the Copyright Review Committee’s review of jurisdictional procedures of the Copyright Tribunal, the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs on technological protection measures, and the technical review of all Australian legislation to ensure consistency with the Australian Criminal Code.

It is inevitable in making amendments in this area that there will be areas of disagreement between stakeholders. Not all amendments are well received by copyright owners and not all are well received by users but, as ever, one has to balance rights in the public interest and we believe that this bill goes a long way to achieving that fair compromise and balance. We have drawn on direct consultations with a wide range of stakeholders including private individuals, peak groups representing people with disabilities, owners of copyright works, broadcasters, distributors, copyright collection societies, academics and those in industry. May I commend my department and its officers, who have done an enormous amount of work in ensuring that that consultation took place.

Members will be aware that this bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 10 November. Exposure drafts of this bill were made available prior to its introduction to allow interested parties to consider it and prepare submissions. We do intend that amendments that suggest themselves for consideration or those considered by the Senate committee in their response to the submissions and comments they have received will be properly considered. We are open to comments on how drafting can be improved, and I say that particularly to the member for Gellibrand. We are already considering changes to amendments concerning private copying, educational copying and jurisdiction of the Copyright Tribunal to improve language where suggestions have been made, and we will also be examining the report of the Senate committee.

I turn briefly to some of the observations that have been made. The member for Gellibrand made a point about the number of discussions she has had with particular stakeholders. She has obviously read some of the submissions and picked up those issues. As she considers these matters further I think she will find that other views will be made known to her and she will be involved in the same sorts of balancing decisions that we have been involved in. As I have already said, we will listen to what is said in the Senate committee report and if we can improve the bill we will.

The member for Gellibrand made an observation on the format-shifting measures, to which the member for Hinkler responded, but her interpretation of the measures, asserting that people would only be able to use material in the home, was not correct. Under fair use provisions, interpretation of the measures for private and domestic use does not mean you can use material with copyright associated with it only in the home. The measures certainly include use in the car or when jogging, as the member for Hinkler said—and I would like to see the member for Hinkler jogging with me in the morning! ‘Private and domestic’ means that you cannot sell material, you cannot upload it on the internet and you cannot play it to a public audience. This term has been used for many years and there are already quite extensive interpretations of it.

The member for Denison asked why we rejected the House of Representatives legal and constitutional affairs committee recommendation relating to criteria for additional exceptions. Let me say, without going into the detail of those measures, that we do acknowledge the important work done by the committee in its inquiry. Its recommendations for additional exceptions were of great assistance to us. But we have to take into account our international obligations. In the government’s response to the committee’s report, we noted that changes were needed to ensure compliance with a free trade agreement and also to accord with the requirements of the Vienna Convention on the Law of Treaties. This has meant that we have to address these issues in a slightly different way to the way in which they are able to be dealt with in the United States, and our responses had to take that into account.

The member for Denison noted that this is a technical area and one that requires legislation that perhaps could be more simple and easy to understand, but part of the difficulty is that it does also reflect our international obligations, as I mentioned, and the way in which we have to respond sometimes requires us to take into account a greater measure of manner and form than I would have liked myself. But I take advice on those matters, and the advice is that the approach that we have taken is judged to be most appropriate.

In conclusion, the Copyright Amendment Bill does introduce significant reforms, but it demonstrates our ongoing commitment to an effective, world-class, up-to-date copyright regime. It will ensure our laws take seriously the need to penalise copyright pirates for flouting the law, while ensuring that ordinary consumers are not infringing the law through everyday use of material that they have legitimately purchased. We look forward to the report of the Senate committee. Once again, I thank the members who contributed in such a measured and well-meaning way to this debate and I thank the House for its support of the bill.

Question agreed to.

Bill read a second time.