Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

The government opposes opposition amendments (29), (30) and (31) and does so for a variety of reasons. Firstly, in relation to whether the technological protection measures are anticompetitive, our answer is a clear no. As noted by Senator Lundy, the bill contains a broad exception from liability for circumvention where a TPM has an anticompetitive impact on the availability of spare parts and services. It also contains exceptions allowing for the creation of interoperable software and other articles. These exceptions will ensure that the provisions will not lock in existing players but will allow the evolution of technology. I think that is an important aspect in relation to the TPMs.

In relation to the consideration of the views of the United States on TPM issues, I can say quite clearly that the United States contributed its views to this discussion as much as any other stakeholder. We talked to domestic stakeholders, both copyright owners and users, and we spoke to the United States as well. When we have a free trade agreement, we have to ensure that we comply with the treaty that we have signed. There is nothing untoward in that. Of course we discussed the matter with the United States like any other stakeholder.

Amendment (29) is opposed on the basis that schedule 12 of the bill, which is in line with the Australia-US Free Trade Agreement obligations, has been the subject of substantial consultation. I think that has been the hallmark of the process in relation to the drafting of this bill. In response to the exposure draft of the TPM provisions, both copyright users and owners sought greater clarity and simplicity in the operation of the definitions. They also sought certainty on the issue of geographic market segmentation. The government listened to the views of all stakeholders and created a definition that will enable owners to safely make copyright materials available online, while also ensuring user certainty over the important areas of region coding and the supply of aftermarket goods and services. It does not require an everyday consumer to make a determination about whether their computer makes copies when they access websites or use computer software. We believe Labor’s amendment will put uncertainty back into the TPM definition. The amendment, we believe, will stifle the development of online distribution of copyright material, placing Australia at a disadvantage compared with the rest of the world.

Similarly, in relation to amendment (30), which deals with the TPMs exception for the development of interoperable computer programs, the government does not support this amendment for the reason that the amendment is unnecessary. We believe it does not bring greater clarity. The TPM scheme cannot be used to prevent individuals or businesses from using existing data with new computer software. The definition of a TPM requires that a TPM be placed on material in which copyright subsists by or on behalf of the owner of the copyright. A software company that prevents customers from using their own copyright material in the form of data by the application of a TPM would not be protected by the scheme. Even if the software-inserted copyright material belongs to the company with the customer’s data, the act allows the customer as a copyright owner to authorise circumvention of a TPM that prevents access to the customer’s data. Aside from that, we believe Labor’s amendment would provide little additional assistance to those involved in the creation of interoperable programs, as it only applies to one of the six types of liability under the bill. It would not allow dealings in circumvention devices or services to be used for the purpose of whatever additional activities it is trying to address, nor would it provide any exceptions to criminal activity.

Opposition amendment (31) involves the contractual evasion of technological protection measures. Again, the government does not support this amendment for the reason that the relationship between contracts and exceptions is not confined to the TPM scheme. The issue of contractual override of copyright act exceptions is relevant for the act as a whole. How could the opposition show that its amendments will not have the unintended or unfortunate effect of implying that every other exception in the act can be overridden by contract? I think this issue is a very complex one in relation to the contractual evasion of TPM measures. We believe that this requires more policy consideration and is something which we can look at as the legislation is bedded down. I think that those reasons spell out why the government cannot support the three Labor amendments.