Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Hansard source

Going to the issue of contractual evasion, this has been previously raised, I think in the law review, and it has popped up in the inquiries. It relates to the way in which consumers are treated. The problem is this: many people know that when they open a new application or purchase new software they are required to tick a box that says that they have read a very long, complicated and convoluted contract. The theory is that this is a contract that is somehow negotiated between the consumer and the company, and it has the effect of overriding law that is in statute. The reality, however, is that of course consumers have no power to vary the terms of the contracts that have this overriding effect. So, in general, they are completely disempowered. We are concerned that, because of the criminal liabilities associated with some of these penalties, that again puts consumers at a disadvantage. Indeed, it allows copyright holders to escape their responsibilities as well and fails to protect their interests.

But I do not want to spend time on that. I want to spend time on the substantive amendment, which I believe is the one that relates to the TPM. I am highly intrigued by the minister’s statement that of course the government consulted US stakeholders. I am actually flabbergasted, because the time for doing that was during the negotiation phase of the free trade agreement, which laid out these clauses that we are now trying to interpret for the purposes of Australian law, in the Australian parliament. Why on earth did US interests get a say?

I can understand that AFACT represented the Motion Picture Association and all the global corporations, and some of them might be US interests, but I do not think it is appropriate that the US made representations on how on earth this parliament should interpret the agreement for the purposes of this bill. That is outrageous. I seek some more clarification on that because our job with this bill—and this is completely timely; we have to pass some legislation prior to 1 January to fulfil our obligations under the Australia-US Free Trade Agreement—is to make law that is compliant with that agreement, not to ask the US what they think. Perhaps the wording was too vague for their liking or they had their own corporate interests ask them to toughen it up a little bit. I think those arguments have no right to influence how we determine what is suitable for Australian law, particularly since we have seen evidence of international interpretation of this law. I referenced it earlier: the Office of International Law and, indeed, according to Professor Fitzgerald and others, US case law have determined that that link ought to apply.

I suppose this is where the outrageousness or audacity of the government’s decision to drop this link really comes to the fore. I think the minister has basically confessed that it has been at the behest of US interests—not Australian interests and certainly not Australian consumer interests—to change this link. We are setting an appalling precedent whereby the Copyright Act, copyright protection measures, TPMs and all those things can now be used to protect a business model, and that can be their motivation. That is just not right. It is certainly not right given the circumstances in which we find ourselves debating this, which is supposed to be the interpretation of the free trade agreement into Australian law.

I go to another statement that the minister made: that the amendment that Labor has proposed, to re-establish that link, is somehow creating more uncertainty. I noticed only one group that asserted that: AFACT, again on behalf of the Motion Picture Association—indeed, on the basis that they came up with a whole list of unintended consequences that were, quite frankly, ludicrous and designed to confuse and muddy the debate. I do not think there were unintended consequences, not when we have all the other legal advice pointing us in the other direction. So uncertainty is a very weak and implausible justification for making this change. I again put to the government that the ramifications of this are perhaps far more serious than even they realise. Perhaps in their naivety, to give them the benefit of the doubt—perhaps they are not just complete puppets—they accepted these opinions and changed it.

I foreshadow now that this will be highly problematic. It will be heralded around the world as an important development on behalf of the further exploitation and diminution of the integrity of copyright law, and then other places will seek to emulate it as well and Australia will be seen as a weak and ill-informed jurisdiction in this regard. It is a very sensitive issue. People watch this type of law around the world with great interest because a lot is at stake. Ultimately, as I said before, it is about anticompetitive conduct and locking up content in unreasonable ways, not for the purposes of protecting copyright infringement but for protecting business models, and that means protecting new ways to gouge consumers and inhibit consumers from using content that they have legitimately purchased. That is not the direction in which we ought to be going. It does not represent a balance between the interests of creators and the interests of consumers; it puts that balance firmly in favour of copyright holders and distributors.

I also do not accept the government’s explanation with respect to the word ‘data’. I think that is a quite reasonable expansion of that exception. My interpretation of what the government said is that data would in fact be rolled into their definition anyway, so I think they are just being pig-headed about not supporting this amendment—perhaps because they did not think of it. I think that is highly unfortunate as well. I will leave it there.

Finally, I want to stress that the minister’s assertion that there was substantial consultation on this point was absolutely false, particularly because the exposure draft contained the link. That was heralded by everyone except, obviously, AFACT and US interests. There was not substantial consultation on the current wording of the bill. They snuck it out with the final bill, and many people did not see it until the bill hit the deck in this place. That is not substantial consultation. It is basically being sneaky, and I think that is unforgivable, particularly in this circumstance.

I will close my comments by reminding senators that the purposes of copyright law in the first instance are to protect the interests of the creators of new works in such a way that there is a financial incentive for them to keep creating and a return on their own investment in time and effort to make it all worth while. I think there are many aspects of this bill where that has probably been lost sight of, but this particular definition is a complete departure. That is an unwelcome precedent with respect to copyright law that I think will undermine the integrity of these laws in Australia.