Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

In terms of the Copyright Amendment Bill 2006, we have seen an extraordinarily short Senate process. As manager—I would like to put on that hat for a moment—this demonstrates a flawed process in respect of this bill. The government has brought a bill forward to deal with copyright. It has had copyright issues for some time now. It has looked at digital review and it has looked at the copyright issue over the last couple of years. It has looked at the USFTA issue and what copyright changes were needed for that. It has also continued them. But it has produced what you could only describe as an omnibus bill very late in this sitting and put together a very short process for the Senate—and even the House of Representatives—to consider.

The Senate committee to which this bill was referred produced, I think, a good report in a very short space of time. But you only have to look at that process: it produced a wide range of views and many submissions in respect of this issue. By and large, they are divergent views. You normally find a theme running through many of the submissions about opposing sections or supporting others; in this process there were many complex submissions on a wide variety of issues which provided different views about different issues within different clauses.

Even after the committee had had a hearing and finalised its deliberations, submissions were still coming in and people were still lobbying by sending in additional issues about this or that. It was quite surprising because it demonstrates that this government failed to adequately consult and drive this agenda forward properly. I think it was a case of this government finding it all too hard. It threw its hands up in the air and said: ‘This is actually too hard, so we’ll put forward the Copyright Amendment Bill 2006. We’ll throw these provisions together. It should satisfy some, not all. It might fix up parts but not everything, and we’ll see if we can get it out of the way before Christmas.’ That seems to be what this government’s agenda has been.

The committee process was useful though because it flushed out some of the problems and demonstrated the very rushed nature of this, and it identified the really hard issues and how to handle them. It also provided a list of recommendations that would go a long way to making this bill a better bill. We are pleased—although I use that term guardedly—that the government are picking up some of the major recommendations, particularly those relating to strict liability, but I do not think they have gone quite far enough.

We are disappointed that the government have indicated they will not support all the amendments. During the committee stage we will be moving amendments to pick up some of the matters and recommendations that this government failed to adequately address in the bill, which arose out the committee process. They should have done that, quite frankly, if they were a real government with a real agenda to improve copyright reform, especially in the areas of strict liability and the TPM. Our amendments are consistent with the Senate committee. We have not gone into as much detail as we would have if we had had sufficient time. Because of this rushed process there will be limited opportunity.

Although Labor decided to improve the bill, we are not entirely convinced that it is the best way forward, because if this government were serious about copyright reform they would have gone back to the drawing board and talked far more with the constituents. Not only do they have their own concerns but there are consumer concerns and stakeholder concerns about how this bill will operate not only in the market but also in private institutions, in libraries, in educational institutions—all the way through.

But, given the current law, the government has an option to stick with what is effectively an exceptions regime rather than look at the fair use options. This bill still has some important components. It seeks to address some of what you would say are the hard issues, some of the niggling yet substantial problems. The bill will fix a range of issues that confront ordinary consumers. It may not fix them in the way everyone would want, but it certainly goes some way to address the concerns that ordinary consumers might have, particularly libraries and educational institutions. In that, it is a good thing, because the submissions that the Senate committee had in that area demonstrated their concerns about how this bill would actually operate; that it would have a negative impact upon their operations.

There are two real major issues which seem to come through this bill: if we can fix the issue of format shifting and time shifting then everyone is fine. Unfortunately, because of the nature of this omnibus bill, that is not enough, and the government should have taken a leaf out of Mr Hockey’s book. When faced with quite a difficult decision with a families bill, he decided to go back to the drawing board and have another look. Whereas with this Mr Ruddock is clearly of the view that he will drive forward because those two major issues are important. Ultimately we agree that they are important and that they need to be dealt with.

Through the amendments, the bill also significantly tidies up many of the provisions that the original drafters missed, left out, could not see in the first place or simply made mistakes about. It is a technical area—there is no argument about that—but the drafters, the people driving this bill, have in part let the standard drop a little in how they arrived at the original bill. When you look at all the different submissions that were brought forward, they either had not engaged adequately with them or ignored them. I foreshadow I will be moving a second reading amendment to this bill.

In truth, that sums up what I have been saying. But the general comment I want to emphasise is that we are trying to work with the government to improve this bill, notwithstanding what I have said and notwithstanding the botched process this government has engaged in. I am confident—maybe not that confident—that the government has taken a big picture approach in dealing with this. It is one of those areas where you might say the government is trying to be tricky because almost no-one with a vested interest in the debate comes away feeling satisfied that issues have been aired, fully considered and dealt with in a considered way by this government. That should be a disappointment to the government; it is certainly a disappointment to me.

Our desire though is driven by a couple of issues. Firstly, it is designed to protect ordinary consumers and educational institutions. That is our first priority, and it is a reasonable priority to adopt. Secondly, it is designed to ensure that creators of copyright material or innovators of technology can get proper remuneration and have sufficient control of their material, but through use that allows more innovation. That is one of the overriding issues this government has not looked at seriously enough.

But dealing with some of the schedules—schedule 1, criminal law and strict liability—the committee recommended that the government really should go away and have another look at that area. I do not think that there was sufficient evidence or a convincing argument presented by the government to maintain strict liability. They have removed it for consumers and I am not convinced that it will not have unintended consequences for the remaining strict liability provisions. There are many strict liability provisions in this bill with far-reaching consequences and they provide significant changes. In terms of consumer impact, it might be that the worst consequences have now been removed, but there are still the unintended consequences of how the others will operate in the marketplace, and the Australian Federal Police especially, those people charged with enforcing the law, really reserved their view about it because they had not been—as I think the record shows—consulted sufficiently to ensure that there is a working model of how the government will use its powers to enforce copyright. The Senate committee came to a similar view and will be moving amendments in the committee stage to bring the committee recommendation forward.

The government does have time. It is not linked to the Australia-US Free Trade Agreement and does not need to be proceeded with at this point. The government can come back with a model that will benefit consumers, stakeholders and owners of copyright with a proper enforcement regime, and a proper way of ensuring that they get compliance especially with the balance for consumers and the ability to use exceptions to utilise the regime. Ultimately that is what you need to be able to achieve out of this legislation. The exceptions to infringement of copyright in this area of the government’s latest amendment are a vast improvement. But still tinkering with a regime that makes our laws inevitably more complex rather than easier and clearer still remains a concern to Labor.

In terms of clear provisions, support for format shifting is a no-brainer. There should be clear unambiguous provisions for the use of this technology. It is aimed for time shifting but I think even in that area the drafters have not grasped all of the issues that surround that. I guess in time shifting there still remains the anomaly where the copy must be made in domestic premises. I think this misses the reality of what the daily lives of people entail. There may be instances where people will copy a tape at work and not have that objected to by the business or the person, and it would be difficult to prove that an offence has taken place. But ultimately that in itself creates a distraction, because there should be clarity. If you are going to bring in law that allows consumers to do (a), (b) or (c), then there should be clarity about how they do it. You should not simply try to confine it to an area which even of itself becomes a little bit difficult to single out and where consumers might find it hard to understand. Good laws are ones which are clear and easily understood and where consumers know whether they are on the right side or the wrong side, and they can then act accordingly.

As for copying for preservation purposes and going to three copies instead of one, that is sensible. But I wonder why you did not pick up on UNESCO which said four copies. Was it a matter of splitting the difference and picking three? It does not make sense, quite frankly. Maybe during the committee stage you will be able to explain where you got the three from and why you say it makes perfect sense. We will have an opportunity to do that then.

In the matter of the definition of key cultural institutions using regulation power, yes, it does allow flexibility. I cannot always be confident that regulations are the right way of dealing with these things, but if you ensure that the ABC, the SBS and the AFC and institutions like that are dealt with appropriately and fairly in the regulations, good. If you squib on it, bad. It is about ensuring that the regulations allow flexibility so that the debate is not about which institution should or should not be in; it is about ensuring that key cultural institutions are included. It would have been preferable to see it in legislation so that we could then test that. In this instance we will have to wait for the regulations and then we will get an opportunity to comment on that at that time as well.

Schedule 8 deals with the response to the digital agenda review. If you look at the communications in the course of educational instructions and caching, we are aware of a compromise position negotiated between the CAG and screenwriters, and I am not sure whether that has been finalised yet or whether that is still ongoing. This is the problem and I think it is the sharp end of where this government has failed to ensure that its bill is watertight, logical and coherent, and has the support of industry to move forward. Mistakes in this will cause costs to be unfairly distributed, and that is a point that you cannot lose sight of in this legislation. Mistakes that you make will cause costs to be generated in business, in industry and in educational institutions as people try to litigate to find out what the intention was—and that should be avoided at all cost.

Schedule 11 deals with the copyright tribunal and record keeping for educational institutions. It appears that we have got to a compromise with a regime which is workable, but I still worry whether the AVCC have had an opportunity to raise their issues and to ensure that the schedule will meet the needs of the AVCC and others in the industry. Looking at schedule 12, the TPMs, the technological protection measures, you still have not followed the original advice and have departed from it again. There is a concern that in doing that you really have made it much broader than what was originally intended. If you look at the recommendations by the House committee and now the Senate committee, I think it is important to keep the distinction between TPMs and copyright, otherwise you can and will have unintended consequences and there will be litigation, and you will be imposing costs on the litigants. Unequal bargaining positions will arise and people will use these unintended consequences to give them an advantage and countermeasures will be brought in by business. We will then have a new round, I think, all created by the unintended consequences. I could be wrong about that—I hope I am—because business wants certainty in this area. This seems to be a late change that really failed to get full support, which is a shame.

There are of course some Democrat amendments, which we will deal with in the committee stage, so I will not deal with them in this second reading debate. Overall, I think the tone of this debate and this bill match. I think the government have done a lot of work on getting it right. What we are worried about is that you still have not taken up all the committee recommendations to improve the bill, to make it as good as it should be. We will be moving an amendment to give you another opportunity to look at them in the clear light of day, to see if you can be persuaded to adopt those recommendations which will improve the bill overall. On the whole, though, in terms of ensuring consumer protection, the government get a tick; in dealing with all the broader issues, you get a cross. (Time expired)

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Ludwig, just to clarify: have you moved, or would you like to move, your amendment?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I thought I had.

The Acting Deputy President:

You foreshadowed it. I thought I would draw it to your attention.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I move:

At the end of the motion, add  “but the Senate:

(a)

notes:

(i)

the rushed and inadequate process for drafting this bill and its numerous amendments, allowing little time for detailed analysis of its provisions by industry, experts and consumers;

(ii)

notes the Government’s decision to not adopt a general “fair use” provision, thereby focussing debate on the detailed exceptions and necessitating a stifling policy decision which limits format shifting to current, but not emerging technologies;

(iii)

notes the initial far reaching strict liability provisions (which the Government has itself recognised needed to be dropped) but flags concerns that other unintended consequences may unfairly penalise consumers;

(iv)

notes the concerns of the internet industry about unintended consequences of this bill;

(v)

notes the need for a strong public education campaign about copyright laws;

(vi)

notes the Government’s failure to include the recommended two year review in the legislation; and

(b)

expresses grave reservations, despite a number of positive aspects of the bill, that the overall package it cumbersome, complex and confusing”.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Can I say at the outset that the Democrats will support the second reading stage of the Copyright Amendment Bill 2006, but we do believe it needs significant amendment before it should be passed into law. I note that the government yesterday circulated 12 pages of amendments, a total of 63 amendments, and a supplementary explanatory memorandum that goes some way to addressing the many and varied concerns that were raised during the extremely brief investigation by the Senate Standing Committee on Legal and Constitutional Affairs into this legislation. The Democrats have also circulated one or two amendments; I will go to those shortly.

I think it does have to be put on the record how unsatisfactory this stage of the process is, as I unfortunately find myself saying far too often. The role of this chamber as a law-making body, as a legislature, is not being given due regard. I do not think it has ever really been given proper regard by the media or the general public. I think there is a lack of recognition of how important the law-making role of a house of parliament is. But that has deteriorated significantly since the government got control of the Senate. In most cases, though not all, I think it is seen as little more than an annoying, mildly irritating little process that we have to go through for form’s sake.

I do note that many components of this bill are the result of quite long periods of consultation. To be balanced, I congratulate the government on having conducted quite wide-ranging consultation—discussion papers, forums, exposure drafts and the like. But, having done all that, I think it makes it all the more unfortunate that when you get right to the pointy end, right to the crunch, we suddenly have this mad rush.

The simple fact is, as the evidence given by the department to the Senate committee inquiry showed, that there is no mad rush for the bulk of this legislation. The only components that do need to be put through before the end of the year are those that ensure compliance with the Australia-US Free Trade Agreement, and I will come back to that in a moment. But there are a range of other areas that are not linked to that and, from the point of view of getting it right—not having arguments about the policy intent but just getting the law right—we would all be much better served by it not being rushed. The entire Australian community and all of the many stakeholders in this law would be much better served if we could have scrutinised this properly to ensure that it was as close to right as possible before it became law. Whilst the key stakeholders are copyright holders in educational institutions, writers, performers, publishers, software companies and those sorts of groups, this law will affect in many ways the vast majority of the Australian community. This is complex copyright law, and in some ways it seems arcane copyright law, but it is not a matter that affects just a small percentage of people. It has a direct and significant impact on small but important sections of the community, including the education sector and a range of businesses. Its flow-on effects literally do affect the entire Australian community, so it is important that we get it right.

There is a growing indication, as increasingly shown in practice, that this government is more interested in getting things through than it is in getting things right. The Senate committee process that followed was derisory; it was little short of a disgrace. The people who contributed to the inquiry—the people in the community who have the expertise, who actually work with the law on a day-to-day basis, who know its practical implications—pretty much all said, without fail, that the process was seriously flawed in its failure to give adequate time to examine the legislation. So, whilst I think the Senate committee across-the-board, from all parties, did a very good job—as the legal and constitutional committee does almost without fail—it was still only able to look at the issues that were brought before it. I certainly have had people raise with me since then, as I imagine other senators have, issues that they did not get the opportunity to raise in full detail during the Senate inquiry process.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

It still hasn’t stopped.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

We are still getting representations today—that is, responses to the government’s amendments.

The government forced us to table that report more than a week before the legislation came on for debate, truncating the already brief time by an extra week, so that they would have enough time to assess the report and to draft amendments if they felt it necessary. That is understandable; that is good. I am pleased that they want to fully consider the recommendations, and I am pleased that amendments have come through. But then, once again, the Senate, the stakeholders and the wider community, those with expertise, have to rush to look at the 63 amendments in the space of a day or so. It seems that the upper hand is continually with the government, the executive, the department, and that the community and the parliament are the ones who are always having to scramble to check whether or not things are properly drafted, whether they have the impact the government says they will and, indeed, whether or that that impact will be good.

The fact is we are still getting representations from people about matters that were not able to be raised in the committee hearing. It was only a one-day hearing; it was also held when the Senate was sitting, from memory, so it had that extra flaw, which is a continuing practice that, I must say, I am finding more and more frustrating. Even when we do have public hearings into detailed legislation, we are holding them when the Senate is sitting, when the attention of some senators, and the media and others, is focused on the chamber—not that the media is usually focused on the chamber, let alone committees, but it makes it even less likely that attention will be paid to the issues and concerns raised.

As I have said repeatedly, but it cannot be said often enough, time for adequate scrutiny is not just about senators being able to satisfy themselves that what is being put forward is good or bad and properly drafted and workable; it is also about ensuring wider community awareness, input and debate into issues so that things are not pushed through quickly without people being aware of what is happening and without the opportunity for issues that we might not have thought of to be put before us. There is a fair bit of talent in this Senate, in particular on the Senate Standing Committee on Legal and Constitutional Affairs, but we are not the font of all wisdom, particularly in an area as complex as copyright law. We need to have the time to hear from and cogitate upon the varying views.

In this area in particular, as we all know, there are a lot of stakeholders with competing interests, and you have to balance those up. In saying that, I appreciate that that reality makes life difficult for the government—in this area perhaps more than a lot of others. You really do have a lot of competing interests, and it is a matter of balancing all those interests—balancing the interests of the consumer with the interests of the copyright holder, the interests of the users and the institutions with those that sell product. That is always going to be a balancing act.

It is always going to mean some people are unhappy with the outcome. But when everybody is unhappy with the outcome, as they were in some areas of this legislation, I would suggest that if you upset everybody a little bit it does not mean—as the minister suggested—that you have probably got the balance right. I think it could just as easily mean if you upset everybody about it they all recognise that it is not workable for anybody. That was certainly the message that came through in the Senate committee inquiry.

Having said that, the government has produced a number of amendments that do go, to some extent, to the concerns raised. I acknowledge that, and I congratulate the minister for listening to at least some of the concerns that were raised. I will just quickly go through the bill, which has 12 main schedules, some of which contain stand-alone issues. A range of the amendments address copyright piracy. This is a difficult issue. It is very important to prevent what is theft from occurring. But you also do not want to structure the law in a way that people who are not seeking to profit inappropriately from using material get caught up in the laws. There are areas relating to criminal law, evidential presumptions, various technological definitions, civil remedies and commercial-scale online infringement with Customs seizure of imported infringing copies. All of these areas need reform, and we will look at the amendments that touch on them when we get to the committee stage.

Schedule 6 is very significant. It deals with exceptions to infringement of copyright. This includes areas like format shifting and time shifting and also so-called fair use provisions: the using of copyright material for various purposes by educational institutions, in particular—libraries, schools, archives and museums; so for non-commercial uses. It also covers use by people with a disability and use for comedy and satire. These are all areas that require some fine judgement. There are certainly some areas where the bulk of the evidence suggested that the government got it wrong. I think we have greater reason for concern particularly regarding issues that come to light late in the piece that had not been raised previously throughout all of the prolonged consultation periods.

Schedule 7 deals with clarifying who is the maker of communications. Schedule 8 contains some responses to the digital agenda review, which also follows on from quite a long consultation process and covers a range of different areas. There is another schedule dealing with unauthorised access to encoded broadcasts and another couple of schedules dealing with Copyright Tribunal amendments. Schedule 12 predominantly deals with the free trade agreement. There are amendments to implement measures relating to technological protection measures. As an aside, whilst we are now basically required to become compliant with the Australia-US Free Trade Agreement by the end of this year, the concerns that were raised about the technological protection measures changes went partly to their workability and the way they are framed but also partly to problems in the free trade agreement itself.

I am very disappointed that the area of the free trade agreement to do with intellectual property and copyright issues did not get the sort of scrutiny that I believed it merited. It is a complex area, but I thought that particular area of the free trade agreement demonstrated that the free trade agreement was not terribly accurately named, because in some aspects in this area it does not free up trade between Australia and the US. It actually constrains trade and competition and, in this area, it constrains it in favour of US corporations, which I think is unnecessary and unfortunate. The US is not necessarily world’s best practice when it comes to copyright, and I think it was very unfortunate that we locked ourselves into some of the measures that the US wanted. They are not world’s best practice but they are obviously a major player, and I do not think it helps to be required to align ourselves to some of their practices in some of those areas. That is quite a broad topic, so I will not go into it beyond that.

I also want to comment on one thing which was not in the legislation and is particularly frustrating for me; that is, the government’s commitment to remove the licence fee cap for the playing of sound recordings on commercial radio. The legislation before us, as I have said, is the result of a long period of consultation on a range of areas—fair use consultations, digital agenda consultations and free trade agreements. Consultation was also undertaken at the same time regarding whether or not there should be the removal of the cap on what commercial radio has to pay to play sound recordings—basically, to play music. At the very same time that the Attorney-General announced back on 14 May this year that he would be implementing many of the changes that are before us now in this legislation, he also said:

... the Government has agreed to remove the legislative cap on copyright licence fees paid by radio broadcasters for playing sound recordings. The one per cent cap was adopted in 1968 to protect radio broadcasters because they faced special economic difficulties at that time. Sound recording owners (mainly record companies and artists) and radio broadcasters, who operate in a profitable and robust industry, should be able to negotiate a market rate without legislative extension. If they can’t agree on fees, they can put their case to the independent Copyright Tribunal, like any other copyright owners and users.

I completely agree with that statement by the Attorney-General. That statement is government policy and it was a government promise; there was a cabinet decision.

At the Senate committee inquiry into this legislation, it was made clear by the department that the reason the government wanted to get all this through before the end of the year, not just the free trade agreement measures, was that they wanted to get through all the reform measures to the Copyright Act in one package. I can understand that. As long as you get it right, it is efficient—do the lot once, get it all out of the way and then people can get on with it. So why is that one very simple, very discrete measure, which was announced at the same time—it was a cabinet decision—and which was clearly justifiable on the evidence, not in this reform package? If it is not in this reform package then I would suggest that there is a very strong risk that it will not be implemented before the next election—and what will happen after the next election nobody knows. So this is the key opportunity to ensure the government implements its promise, its commitment and its cabinet decision. The Democrats will be moving an amendment to keep the government honest with regard to their announcement back on 14 May of this year.

There is no reason for this exception to exist. The exception discriminates against and economically harms artists and performers, in particular, as well as record companies, to the benefit of that section of commercial radio which plays music. There is no reason that they should be the sole exception. In Australia, users of copyright material pay fees or rates set by agreement with copyright owners or, if there cannot be any agreement, with the Copyright Tribunal on a fair market basis as determined by the tribunal without any statutory restrictions. The only exception is the broadcast licence fee for commercial radio stations, where they only have to pay up to one per cent of their overall revenue. That is completely unjust. Whatever circumstances may have existed back in 1968 to justify it, they do not exist now. It is a profitable industry, particularly given—as was, once again, clearly stated in evidence before the Senate committee inquiry—that other changes in this area, particularly to do with fair use, are likely to lead to a drop in revenue at least in an immediate sense for performers and artists.

So we are making changes that will reduce their income in one area. This would clearly balance that out. It is a cap on income, a key revenue stream for performers, particularly non-composers. I might have a bit of a bias here, having been a drummer myself in a previous life. Drummers tend not to get the songwriting credits, which is a complete injustice but that is the way of the world. That revenue stream for non-songwriting performers is critical, yet there is a price cap on what they can earn. There is no other area in copyright or anywhere else where there is that cap put on what people can earn. I cannot see why this is not put forward. There was no reason given at the Senate committee hearings as to why it was not put forward, other than the government has decided not to proceed with it now. I do not think that is justified, frankly. If there is any time to put this in, it is now, and I will seek to do that on behalf of the Democrats when we get to the committee stage of the debate.

In conclusion, I do think this is very important law, because of its complexity. Unfortunately, it does not get the attention it deserves, although it does impact on a wide range of people across the Australian community. Everybody, pretty much, consumes or uses material that has copyright involved in some way, shape or form but usually we do so unknowingly. We want to make sure that there are no inadvertent breaches. But there are a lot of key, immediate stakeholders, revenue streams, incomes, profitability, business opportunities and business barriers that all need to be factored in as well, and we need to get it right. With the amendments that are in this bill, we have got a bit closer to getting it right, but I think it needs further scrutiny. I look forward to doing that in the committee stage of the debate.

Debate interrupted.