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

I rise to speak to the Copyright Amendment Bill 2006. The bill is comprised of a number of schedules—12 in fact—and yet only one of them is required to be passed before 1 January 2007 in order for Australia to fulfil its obligations under the Australia-US free trade agreement. I will speak in some detail to the flaws in schedule 12, which is the schedule relating to these obligations, but first I would like to turn to a range of other changes that, if not amended, will see the rights of consumers take a turn for the worse and, in some cases, allow the innocent activities of kids to become criminal offences, potentially resulting in thousands of dollars of on-the-spot fines.

The government has stated that the purpose of this bill was to protect consumers by making a range of real exceptions to copyright protection that reflect current practice in the home and normal private use. This it was claimed would update our laws and provide impunity to consumers using content, be it music, movies or software that they had purchased for their own private use in a way that did not breach copyright. But that is not what has emerged. With the government choosing not to adopt a general fair use exception for private use, an option open to them under the provisions of the free trade agreement, they have preferred to persist with a string of exceptions that have added complexity by virtue of their specificity about what can and cannot be done with respect to copyright. And they did not get this right. The exceptions were poorly drafted and did not reflect the basic normal practices of established technologies such as digital music players. They do not address saving podcasts and playing them later and other downloadable content. The Australian Consumers Association says in a letter that it forwarded to, I think, all parliamentarians, certainly to all senators:

Behaviour which many if not most Australians think is acceptable will be a criminal offence. Worse, it makes those offences ‘strict liability’—this means a person can be found guilty even if they did not know they were breaching copyright.

And that it allows police to issue ‘on the spot fines’ for each offence, and potentially turns possession of ordinary consumer items such as an iPod or a computer into an offence with a $65, 000 fine.

This is because it would include multiple offences to use it. The bill does not reflect sensible time shifting and format shifting of content in this way. In other words, the bill has failed in the minister’s primary claim. The Senate committee inquiry into this matter heard a lot of evidence about these problems and received submissions articulating frightening scenario after frightening scenario of the misapplication of the exceptions that were drafted, and exposed the obvious gaps of reasonable places for exceptions that were ignored by the government.

Schedule 1 of the bill relates to a new regime of strict liability fines for consumers who breach copyright. In other words, if a specific activity of a consumer were not protected by an exception, these massive fines would be imposed—regardless of the intent of the consumer. Such a strict liability regime is unprecedented in the world and, I think, represents a massive win for the large corporations that have been lobbying the Howard government to legislate to protect their interests.

The strict liability regime means that, where a consumer is believed by the authorities to be in breach of copyright, the authorities may issue an on-the-spot fine of $6,600 and record a criminal offence. The strict liability scheme means that even kids who are doing things they thought were legal will be hit with massive fines. The bizarre thing is that those organisations which have successfully influenced the Howard government to impose such a punitive regime say that it is all about stopping piracy of CDs and DVDs. Where I think their case falls apart is that this strict liability penalty system is clearly aimed at humble consumers. It is not aimed at pirates who profit commercially from the mass production of illegal material. No-one supports piracy; Labor certainly does not, and we certainly want to see laws that are strong enough to stop those who profit from it.

Unfortunately, the agenda here was to put the fear of a jail term or massive fines in the minds of consumers using new technologies. One can only assume that this was to progress their agenda of protecting future business models of downloading digital content and to try to insert a culture of fear and concern around the use of new technologies rather than one of exploration and exciting new inventions.

Evidence to back this assertion came following some discussion in the Senate inquiry about whether or not the strict liability regime was aimed at people seeking to make a commercial gain from breaching copyright. Even a suggestion put forward by academic Kim Weatherall, an expert in the intellectual property area, to codify the strict liability towards just commercial activities was rejected. I also note that the government has foreshadowed some amendments in this area, and we will be pleased to see if any remediation can be made of this strict liability scheme. Labor is concerned about the government’s choice to proceed down the exceptions path instead of a general fair use regime for consumers. Labor is also concerned about the unprecedented nature of the strict liability regime. But what we are particularly alarmed about, and we will be moving amendments to try to resolve this, is the intersection of these two problems.

I want to turn to a reasonably clear example of how vulnerable children will be to this strict liability regime if they are not protected properly by an exception. I was flipping through a Dolly magazine belonging to one of my daughters and I came across an article titled, ‘How to be a virtual celebrity’. It said:

Websites like YouTube and MySpace have started the virtual star revolution, which means all it takes for you to become an instant cyber celebrity is a little webcam and a big idea.

The article goes on to say that readers can check out a range of ideas, including ‘lip-syncing your favourite song’. It all seems pretty innocent. I should add that Dolly also published some stern warnings about internet safety, which was good to see.

Under this bill, such innocent advice from a teenage girls magazine, such as Dolly, to do the ‘virtual lip-synching instant celebrity’ stunt may get them into a whole lot of trouble if this bill passes in its current form. As was stated in an article in Tuesday’s Financial Review, Professor Brian Fitzgerald from the Queensland University of Technology submitted to the Senate inquiry on this bill that such lip-synching online was a technical breach of copyright of the song. The Australian Consumers Association noted that this could represent an on-the-spot fine of $6,600. I do not know too many teenage or pre-teen kids who can afford that kind of fine—and I am sure their parents would not be at all happy.

The bottom line is that it is outrageous to even suggest that this kind of innocent behaviour—promoted in the mainstream media, no less—should be considered illegal; yet it is, under the current wording of this bill, and the Howard government have drafted this bill so as to nail children for it. That said, the government have circulated amendments that appear to modify some of these strict liability penalties for consumers. I will be very interested to see the detail of these amendments. I think that if they do address this specific problem it is real progress. But, with the specificity of exceptions, the challenge is almost to determine every scenario that could be considered to be innocent and normal use and put that in the bill to provide that protection; hence Labor’s view that the combination of using a model that has specific exceptions and strict liability fines is too complex and confusing and leaves consumers vulnerable. The bill fails to achieve the stated objective of the minister that the bill will protect consumers from prosecution under copyright law for normal private use.

I acknowledge that there is progress, because there are many activities which technically are illegal as they stand now. This whole bill is about progressing in such a way that some of those activities are codified and protected for legitimate use, but the model makes it very difficult to catch everything and to protect consumers in a wholehearted way. From Labor’s perspective, a general fair use exception is a plausible alternative that the government ought to have considered—and I think they probably did consider it and made a policy decision to proceed along the exception path. I also want to note that it is permissible under the Australia-US Free Trade Agreement to adopt a general use private exception model, but that is an option that the Howard government have not chosen to take up.

There is no place for strict liability without genuine protections for fair use under copyright by consumers and for fair dealing by libraries and educational institutions. The bottom line is that it would be much more difficult to have a general fair use regime coexist with a strict liability penalty scheme anyway, particularly one that relates to consumers. It is only the specificity of the exceptions approach that would enable the strict liability scheme to be implemented. So it is a double whammy against consumers in this regard. That is why in the committee stage Labor will be moving amendments to delete those strict liability offences. We are concerned that the government has chosen to go down this path of convoluted exceptions for consumers.

In the absence of the fair use approach, Labor believes it is essential to remove that strict liability regime, and that that is the only way to really protect consumers from uncertainty and the potential for the unfair application of fines, to the tune of $660,000 for individual offences, which could obviously bank up through various innocent activities. These are not the sorts of provisions that target law-breaking copyright pirates; they are laws to hound kids. I urge the Howard government to heed the advice of their own backbench, who have urged further consideration of the strict liability regime in their own recommendations in the Senate committee report. We know from the evidence given to the Senate committee that the police, who will be responsible for the fines and the infringement notices, have not even considered the administration of the scheme in any great detail.

I now turn to schedule 12, which I mentioned at the start of my speech. This must pass in some form by 1 January 2007 in order to meet our outstanding obligations under the Australia-United States Free Trade Agreement. It relates to technological protection measures. Under the terms of the free trade agreement, the federal government has to determine and legislate a regime that renders actual circumvention of technological protection measures, or TPMs, illegal, given that previously it was the manufacture and distribution of devices used to circumvent TPMs that was illegal. Schedule 12 addresses the definition of TPMs and what additional exceptions, if any, ought to apply to permit circumvention of a TPM and in what circumstances. It is quite a technical area of the bill, but one I feel is worthwhile extrapolating to explain the serious point it sits within.

The FTA has already determined some of those exceptions, and since then part of the responsibility of the Howard government has been to determine if there were to be any more. Since that time, there has been a House of Representatives Standing Committee on Legal and Constitutional Affairs inquiry report entitled Review of technological protection measures exceptions. The committee recommended a number of additional exceptions, some of which have been picked up in this bill and some of which have not. The committee also made an important recommendation in respect of the definition of a technological protection measure.

We are dealing in schedule 12 with an expansion of the technological protection regime, both in the form of exceptions and in some changes to the definition. We have new criminal offences relating to the use of circumvention devices. We also have exemptions that give a picture of some balance to the changes in protection for consumers relating to a couple of issues which I will come to shortly. On the surface, it appears that the government has addressed a major area of concern for consumers. It has outlawed TPMs that enable regional coding and prevents third-party spare parts and exploitation of those markets. This is welcome and it addresses two of the best-known anticompetitive abuses of the use of TPMs.

However, there is far more going on in the detail and definitions used in schedule 12 that gives me great cause for concern. There are three main areas of concern that I have. The first concern is the complaint that the specific exceptions as they are currently worded are confusing and misleading. I note that the government is making some effort through its amendments. I will be following up and checking this to try and resolve some of that confusion. The second concern is that there ought to be additional exceptions, particularly in relation to the needs of software and data interoperability. Again, I think some of this has been addressed and some of it has not. Labor will try and fill those gaps with amendments.

The third and very serious concern is the actual definition of technological protection measures in the bill itself. I will discuss that briefly and will be able to expand further during the committee stage of this bill. We all agree with the principle that copyright owners have a right to protect their work for a period that permits them to be rewarded for their creative efforts and ensures adequate economic incentive exists to encourage innovation and creation of new content, works of art and so on. It is general premise. As new distribution methods and technologies develop and threaten the holders of copyright’s ability to receive their rewards and provide incentive to invest, new ways have been developed to protect these rights.

TPMs are one way that can be used to protect copyright in the technological digital environment—not just on the internet but also for a whole range of devices. For example, a TPM of high-level encryption on software code or content is designed to prevent it from being copied without the permission of the copyright owner. This permission might be made available under specific circumstances through a password, which is like a key to unlock that content or code. Nonetheless, there have always been people who have created new tools and ways to unlock these technological locks and, in the language used in the bill, circumvent the TPMs. There are right reasons for this circumvention and there are wrong reasons for it.

This bill has the responsibility and role of determining what the right reasons and the wrong reasons are. This bill creates a series of exceptions for the right reasons. What are the right reasons to permit circumvention? Once they are identified, exceptions are created to allow it to happen in those circumstances. There are wrong reasons as well. Those wrong reasons include pirating—people profiting from ripping off other people’s content or using it in a way that breaches copyright. The bill creates new criminal offences that go beyond the existing illegality of manufacturers and distributors of tools and devices used to circumvent and extends them to people actually using these tools and devices. The purpose of this law is to prevent this circumvention where it results in a deliberate copyright infringement. We all agree that circumvention for a deliberate breach of copyright is for the wrong reason and ought to be illegal.

New criminal offences applying to the use of circumvention for those wrong reasons also satisfy Australia’s obligations under the free trade agreement. But equally it is important to determine the right and wrong reasons for a TPM to be used in the first place and to be eligible for protection from circumvention. Contained in the definition of a TPM are the right and wrong reasons for which that they can be used in the first place. This is where I have a problem.

Predictably, business has found other uses for TPMs. We know that because there are already a couple of important exceptions, about regional coding and third-party spare parts markets et cetera. These wrong purposes, if you like, are market segmentation, price gouging consumers by locking up markets, prevention of reverse engineering for the purposes of creating interoperable products, perpetuation of unfair monopolies and so forth. In other words, TPMs are used to protect old and new business models and markets.

All of these purposes are anticompetitive practice and anti innovation in nature. They do not deserve the sanction of the law. Already the ACCC has seen fit to specifically criticise the use of TPMs in relation to market segmentation, and, in the Stevens v Sony High Court decision, the necessity of the link between TPM use and the protection of infringement of copyright was reinforced.

While the bill purports to close off the more obvious example of abuse of a TPM that is not designed to prevent infringement of copyright by creating a new exception to prevent market segmentation and third-party spare parts markets, in a typically sneaky way—and I think it is quite unforgivable—the Howard government is determined to remove from the definition the link between TPMs and the protection of infringement to copyright— (Time expired)

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

As a member of the Senate Standing Committee on Legal and Constitutional Affairs, I was involved in the committee’s inquiry into the Copyright Amendment Bill 2006. This bill introduces major reforms to Australia’s Copyright Act. Many of the proposed changes reflect the government’s numerous copyright law reviews of recent years, including the digital agenda review and the fair use review. Most of the provisions have been released as exposure drafts, but only the exposure draft on the technological protection measures was the subject of widespread consultation. As a result, the TPMs are generally considered satisfactory to most of the parties—consumer groups, copyright owners and collectors—although the Senate committee that I was involved in, in the inquiry we had, uncovered further concerns from academics and consumers. However, other provisions in the bill, such as some of the fair use changes, are the subject of widespread concern. Interested groups have highlighted significant drafting problems in addition to what they consider a number of unworkable policy positions. These groups all submitted to the Senate inquiry, and I understand they are continuing to liaise with the Attorney-General’s Department about proposed amendments.

The Senate Standing Committee on Legal and Constitutional Affairs conducted a short review of the legislation and made a number of unanimous recommendations, with additional comments from Labor senators, which I will go to in a few minutes. At the outset, I want to impress on people that there are major concerns regarding the adequacy of the inquiry, given the technical nature of the bill and the short time frame allocated. In fact, in the supplementary comments that the Labor senators provided to the Senate report, we made note of that:

… Labor Senators are of the view that the majority report does not place adequate emphasis on a number of significant matters.

The first and foremost of those was the short time frame set by the government for this inquiry. All the lobby groups and organisations that came to see me in a private capacity during the course of this inquiry—as they probably saw a number of senators, either from the opposition or the government side—absolutely stressed that there was not enough time for them to consider the detail of this legislation and its implications. They also made comments that they had seen an exposure draft but that the draft of this bill did not in any way replicate or transfer any of the clauses that were in the exposure draft. Many people made a comment to me that they felt they were starting from scratch.

In the Labor senators’ supplementary comments to the Senate committee report, we also said:

The Bill proposes major amendments to copyright law in Australia and raises many complex issues. Further, and predictably, the committee received a large volume of detailed and lengthy submissions. Labor Senators consider that the complex nature of the issues, coupled with the extremely short timeframe set by the Government for the inquiry, has seriously hampered the committee in its efforts to comprehensively consider, and report on, all the evidence before it.

It really does public policy in this country no benefit, with such a complex matter, for the Senate committee to have a very short time frame in which to conduct an inquiry and to be forced to pick and choose which groups would appear before us. We were so pressed for time that a number of groups had to appear together—three or four groups at a time in a one-hour time slot. It provided them with very little opportunity to present their case and it provided us with even less opportunity to quiz these people and get maximum benefit out of them in order to translate this legislation into something that is workable and achievable.

There are, of course, provisions in this bill that relate to the implementation of the Australia-United States Free Trade Agreement, and some would suggest that they are considered urgent. I think the time line for that introduction is around January. Ideally, consideration of several aspects of the bill should have been deferred until proper analysis and deliberation had taken place by all interested parties and by this parliament. At the outset, my view was that, if there are urgent provisions of this bill that need to be put through to comply with the Australia-US Free Trade Agreement, let us go ahead and do that, but we really should put the brakes on the rest of the consideration of this bill so that people have adequate time to look at it.

The bill attempts to keep pace with the needs of Australian copyright creators and copyright consumers and to address the new challenges and opportunities arising from digital and other new technologies. The government have presented this bill as a package of balanced and practical reforms, they would say, to address copyright piracy while also ensuring that ordinary consumers are not infringing the law through everyday use of copyright products that they have legitimately purchased.

The explanatory memorandum suggests that reforms in the bill have been guided by the following principle: the need for copyright to keep pace with developments in technology and rapidly changing consumer behaviour. Any of us who have teenagers will know that that is the case. Just as an aside, in a Senate committee I gave an example about using a vinyl record. When I got home, one of my kids said to me, ‘Mum, what on earth were you talking about?’ We talk about iPods and MP3 players now; we do not talk about records. We do not even talk about cassettes, to be honest. It will not be very long before we will not be talking about CDs.

The reforms also recognise reasonable consumer use of technology to enjoy copyright material. Australian consumers should not be in a significantly worse position than consumers in similar countries. The reforms should not unreasonably harm or discourage the development of new digital markets by copyright owners. Australia has a unique regime that should be maintained. Copyright laws should not be brought into disrepute with technical and out-of-date provisions. Copyright piracy is certainly becoming easier. We know that just through the invention of creations like eBay. The law needs to be constantly updated to tackle piracy. Copyright industries are important, but they need to be supported.

It is already questionable whether the bill has actually lived up to these aims. The Senate inquiry has made clear that in some parts it does not live up to the claims made in the explanatory memorandum, especially in keeping pace with technology, keeping Australia’s unique regime and ensuring that copyright is not brought into disrepute by technical and out-of-date provisions. The bill introduces several new exceptions to copyright in response to the digital agenda review and the government’s fair use and other copyright exemptions review that were announced in May 2005. I will not go through all the fair use exemptions and changes introduced by the bill. I just want to highlight some of the major issues to date to do with that.

Popular attention on one aspect of format shifting for iPod users has overlooked the real question of whether the format-shifting provisions generally work adequately for consumers. For example, you can have one copy on an MP3 player but not one to store on the computer. There are odd inconsistencies that allow copying from one format—say, VHS to DVD—but not between others, such as DVD and DVD, that do not seem to have any logic and indicate a lack of understanding of current and emerging technology. Nevertheless, copyright owners are very nervous about the extent of flexibility given to an individual consumer and how multiple copies may be abused.

There is confusion over the way the rules will apply for schools, and the difficulty for users in interpreting the new test is also still being discussed. I had a terrific meeting in my office with the people who are part of the copyright section of MCEETYA. They put to me quite succinctly the three or four main areas in which they have concerns in relation to this. There is a particularly strong argument here about the fair-dealing exception proposed for research and study. The new section 40(5) will be more restrictive than the current arrangements and does not seem necessary. There is permission now for only 10 per cent or one chapter to be copied, irrespective of other issues, such as availability. This will now become much more restricted and probably, in some cases, unusable under this new legislation.

The new insubstantial copying rules in schedule 8 may also hit schools very hard. Further clarification is still being sought that the communication right to ensure proxy caching and child protection caching by schools would not be an infringing use, but this appears to have been adequately dealt with. Perhaps we might see further changes. The new three-step test is also undergoing serious scrutiny to assess whether it is necessary and workable, as is the new parody and satire exception. It seems to add another unnecessary level of complications for little consumer benefit.

The Senate committee report is there for people to see and read. In the short time that we had to look at the legislation, the committee tried to put down some recommendations that will make some improvements. The committee proposed, for example, that section 111(1) be redrafted to make absolutely clear that individual consumers are not restricted to watching and listening to broadcast recordings in their own homes. The committee recommended that schedule 6 of the bill be amended with respect to format shifting to specifically recognise and render legitimate the ordinary use by consumers of digital music players such as iPods and MP3 players and other similar devices.

The committee recommended that the proposed amendments to the fair dealing exception for research and study in schedule 6 of the bill be clarified to make it clear that only reproductions deemed to be fair dealings will be restricted and that the scope of the provision allowing any other amounts of reproduction will not be affected if they are considered to be fair. The committee also recommended that schedule 6 of the bill be clarified to make it absolutely clear that libraries, archives and cultural institutions, for example, are able to make sufficient copies for the purposes of preservation. The committee recommended that the scope of the exception for key cultural institutions in schedule 6 of the bill be clarified to specifically include the ABC, SBS, the Australian Film Commission, universities, research institutions and other like institutions which hold significant historical and cultural material.

There was also a suggestion that schedule 8 of the bill be clarified to ensure that caching for efficiency purposes—proxy caching—does not infringe copyright and to ensure that there is no doubt that a reproduction must be removed after the end of the particular educational course for which it was made.

What I am trying to highlight is that the Senate committee went through this bill in the short time frame that it had available, with limited ability to question those who I thought were very expert people in this field, and has already come up with some major changes about redrafting. It really begs the question: if the Senate committee had much longer to actually inquire into and report on this bill, would we have come out with a piece of legislation that could be better redrafted and rewritten to provide better clarity for both consumers and users in this area?

I want to make some comments about the Labor senators’ additional report. Our comments were a little bit stronger. We recommend that the time-shifting and format-shifting provisions of schedule 6 to the bill be amended to recognise all current and legitimate uses of technology, including format shifting from podcasts and webcasts. We recommend that the time-shifting and format-shifting provisions of schedule 6 be amended to enable copying for personal and domestic use to occur in places other than domestic premises, including legitimate places of business. Also in relation to section 6, we recommend clarification that the time-shifting and format-shifting exceptions permit sufficient copies to be made and stored for reasonable use of legitimate products and that this section be amended to remove proposed changes to the exception relating to fair dealing for research and study so that the existing section 40 of the Copyright Act 1968 is retained in its entirety. Finally, we suggest that the bill be amended to remove the commercial availability test from the exception relating to official copying of library and archived material.

In the remaining time that I have I want to talk about a number of additional issues that go to the Copyright Tribunal. I am picking up on this because I am not sure that some of my other colleagues have done so. The bill implements the government’s response to the Copyright Law Review Committee’s report Jurisdiction and procedures of the Copyright Tribunal to enhance the jurisdiction and procedures of the Copyright Tribunal. During consultations we were alerted to the likely adverse impact of proposed provisions that would permit the Copyright Tribunal to impose an expensive burden on educational institutions in relation to their so-called record notices. The bill contains a repeal of the provisions which give effect to a prescribed record keeping system. The Australian Vice-Chancellors Committee have submitted that, if that were implemented, an institution issuing a records notice would be required to reach agreement with the collecting society regarding the form of record keeping system or, failing that, apply to the Copyright Tribunal for determination. We actually agree with the Australian Vice-Chancellors Committee assertion that this will have enormous cost consequences for the education sector and that there appears to be no reason to impose this burden when there is no evidence that the current records option is not working. Consequently, we have recommended that schedule 11 of the bill be amended to remove the paragraphs in relation to records notices.

The Senate committee made additional recommendations that the federal government conduct a public awareness campaign and undertake a public review of the impact of the changes made to the Copyright Act after a period of two years of operation of the provisions. In fact, the committee recommended that the federal government develop a plain-English consumer guide on the meaning and effect of the amendments contained in the bill in order to assist people to understand their copyright rights and obligations under the Copyright Act. As I said, we also recommended that the federal government undertake a public review of the impact of the changes of this bill after a period of two years. With regard to the proposed review of the impact of the changes, Labor senators noted in the report that this represents a second-best and belated approach to counteract the inherent inadequacy of this package of reforms.

Just for the record, I reiterate some of the aspects that were contained in the second reading amendment that was moved by Senator Ludwig. As I said, there are probably about four or five areas that I have not had a chance to touch on. My colleague Senator Lundy has gone to some of them, particularly the fair use and strict liability provisions. Of course, time is inadequate to be able to critically analyse in depth what this is going to mean out there in the world of use or misuse of copyright.

As I said, we want to make note of the rushed and inadequate processes for the drafting of this bill. The numerous amendments that are now before us allow little time for detailed analysis of provisions by industry experts and, of course, consumers. We note the government’s decision to not adopt a general fair use provision, thereby focusing debate on the detailed exceptions and necessitating a stifling policy decision which limits format shifting to current but not emerging technologies. For me, that is quite a pity really, given how fast technology moves, not only in the world but also in this country. I think we will be left behind. I am not sure that two years is adequate time in which to review this bill. Perhaps it should be sooner.

The initial far-reaching, strict liability provisions that my colleagues have talked about, and which the government has itself recognised, I think need to be dropped. That flags concerns that other unintended consequences may unfairly penalise consumers. I do not believe that these have been adequately considered or thought through by the government. We note the concerns of the internet industry about unintended consequences of this bill; the need for a strong public education campaign about copyright laws—I have made some comments about that; and the government’s failure to include the recommended two-year review in the legislation. I really think that needs to be reconsidered, given emerging and new technologies. You just have to look at the new Telstra Next G network to actually see how quickly those technologies emerge in this country. We express grave reservations, despite a number of positive aspects of the bill, that the overall package is cumbersome, complex and confusing. In closing, if there is a need to push through some of this before 1 January to comply with the Australian-US Free Trade Agreement, let us do it, but let us put the others off for another time. (Time expired)

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

At the outset I thank senators from all sides of the chamber who have participated in the debate—Senators Ludwig, Bartlett, Crossin and Lundy. As well, I also thank the Senate Standing Committee on Legal and Constitutional Affairs for its valuable report on the bill and the recommendations which were made on a number of key issues.

As Senator Bartlett recognised, the bill is the result of substantial consultation over a number of years. It delivers on outcomes from a number of recent important copyright reviews. I think that flies in the face of one aspect of the second reading amendment which claims that there has not been sufficient consultation. Certainly, I agree with Senator Bartlett that there has been extensive consultation in this process. The reforms that we are dealing with here seek to maintain the balance of copyright law by providing new and innovative exceptions for the use of copyright material while providing greater security for copyright owners to distribute their copyright material in this digital age.

The government has closely examined the Senate committee’s report on the bill. The government has accepted eight of the 12 specific amendments to the bill recommended by the committee. It is responding to the key issues raised during the Senate committee process by proposing a number of government amendments to ensure that the bill achieves the government’s stated policy objectives and to clarify drafting in some areas. The government will also move amendments in response to some of the recommendations by the Labor senators of the Senate committee. I think that, in view of the second reading amendment, it should be borne in mind that not only have we had this extensive consultation period but also, what is more, the government has closely examined the Senate committee’s report and taken on board many of the suggestions. It has been considered very carefully.

Copyright reform is an important issue for this government and this bill demonstrates the Howard government’s commitment to ensuring that our copyright laws are effective and that they respond to continuing changes in the technical landscape. The government’s commitment to copyright law reform has been clear and consistent to make the law fairer for consumers and tougher on the real pirates.

Senator Ludwig talked about divergent views. He said there were lots of them in the Senate committee submissions. Of course, he is quite right. That is, after all, what you get when you are dealing with issues relating to copyright. There have been five discussion papers, various exposure drafts, consultations and meetings with stakeholders. Stakeholders have, understandably, formed their views based on what is in their best interests. More consultations will not change these views. There is no compromise that will make all stakeholders happy. This is an element of copyright policy process and that is the very point I just made in reference to Senator Ludwig’s observation as to the number of submissions. But the thing is this: at least this government is willing to make the hard decisions and not leave them in the too-hard basket as others would.

Senator Ludwig has questioned why the bill does not include a broad fair use exception. We had a review and there was limited support for a broad fair use right. People like Australia’s fair dealing regime. They like certainty of exceptions. They do not want a fine-line exception that tells them they can only do what a court tells them they can do. As Senator Ludwig reminds us, for consumers there should be clarity.

The bill introduces several new exceptions to copyright in response to the government’s fair use review. First, the reforms recognise that common consumer practices of time shifting of broadcasts and format shifting of some copyright material should be permissible. This bill will ensure that people can legally tape television or radio programs in order to play them at a more convenient time. It will also be legal to reproduce music, newspapers and books in different formats for private use. Importantly, people can transfer music from CDs they own onto their iPods and other music players. As a result of these changes, consumers will no longer be breaching the law when they record their favourite TV program or copy CDs they own onto another device.

The government is also ensuring that Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted by providing an exception for fair dealing for the purpose of satire and parody. In response to the views of the Senate committee, the government is moving amendments to the bill to ensure that time-shifting and format-shifting provisions achieve the government’s policy intent and recognise the reasonable use of technology.

A new flexible exception will also allow copyright material to be used for certain socially useful purposes where this does not significantly harm the interests of copyright owners. Cultural and educational institutions and certain individuals will be able to make use of copyright where those uses do not undermine the copyright owner’s normal market. Importantly, people with a disability that affects their capacity to access copyright material will now be able to make use of that material in order to better access it. This amendment has been welcomed by people with disabilities.

The bill provides for more effective technological protection measures. This, of course, provides for TPM protection to encourage distribution of copyright material online and increase the availability of music, film and games in digital form. This in turn will foster development of new business models and provide enhanced choice for consumers. The liability scheme established by the bill will target people who circumvent these technological protection measures in addition to those who manufacture or supply devices or services used for circumvention. The liability scheme also provides for specific exceptions in the bill and copyright regulations in accordance with the recommendations of the House of Representative Standing Committee on Legal and Constitutional Affairs.

In addition, the bill will create an exception for region coding devices and will allow Australian consumers to use multizone DVD players. This part of the bill is the product of an extensive consultation process. The government believes that it is a robust and fair scheme in line with our obligations under the Australia-United States Free Trade Agreement. The government will not be adopting the recommendations of the Senate committee in relation to TPMs for these reasons. The government, however, proposes to move minor technical amendments to the TPM provisions of the bill.

In the digital environment, the reality is that it has become increasingly easy to infringe copyright. The bill therefore introduces reforms aimed at tackling copyright piracy online and at our markets and borders. 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 and guidelines, to be developed in consultation with users and owners. This will give law enforcement officers a wider range of options depending on the seriousness of the relevant conduct, ranging from infringement notices for more minor offences to initiating criminal proceedings to strip copyright pirates of their profits in more serious cases. They are not aimed at ordinary people but at copyright pirates who profit at the expense of creators. In response to submissions and to the recommendations of the Senate committee, the government will move amendments to the bill to address any perceptions of possible overreach of the offences. The summary and indictable offences will remain intact for those activities to ensure that the law remains appropriately tough on pirates.

Other key enforcement measures include new offences to tackle unauthorised access and use of pay TV services. The government will move amendments regarding the definition of ‘broadcaster’ in the schedule of the bill to ensure that this scheme fully achieves its objectives. The bill enhances the jurisdiction and procedures of the Copyright Tribunal. Many amendments implement the government’s response to the Copyright Law Review Committee’s report Jurisdiction and procedures of the Copyright Tribunal.

The government has responded to the recommendations of the Senate committee and to the need to ensure that cultural institutions are able to fulfil their cultural mandate in preserving their collections. In response to several other Senate committee recommendations, the government will also be moving amendments to ensure that the needs of our educational institutions are appropriately catered for by moving amendments to ensure that new provisions in the bill relating to educational communications and to the location of educational material for efficiency purposes more clearly meet the government’s policy objectives.

In relation to educational institutions, the government also looked carefully at the Senate committee’s recommendation 11, which proposed that ‘insubstantial’ copying of works in electronic form need not be ‘continuous’. On balance, the government has decided to retain the bill in its current form, which preserves the technology neutrality of the act in this area between hard copies and electronic copies.

Senator Bartlett asked why the removal of the one per cent cap on licence fees involving the broadcast of sound recordings is not contained in the bill. The government agrees that this is an important issue and it has consulted and come to a decision on it, as Senator Bartlett indicated. A number of submissions from affected stakeholders in recent months have meant that further work is required. This could not be completed in time for the introduction of this bill. The government has therefore not made a decision about the timing of this reform.

I also advise the Senate that the government has noted some of the media and other commentary on the bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms. I think some commentators are throwing the baby out with the bathwater, and this undermines public confidence in copyright.

I take this opportunity to address some concerns raised by the Internet Industry Association that internet service providers may be criminally liable for the actions of third parties who use the ISP network to communicate infringing copies. The government has reviewed the relevant distribution offences and is satisfied that the amendments do not alter the current position for ISPs under the Copyright Act and that no further clarifying amendments are necessary. None of the relevant distribution offences in the Copyright Act capture authorisation of criminal infringement. To commit an offence, a person or entity must directly commit all the elements of the offence themselves. Further, under the Copyright Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication. In the vast majority of cases, a person other than the ISP would have generated the online content.

The government amendments that will be moved to the bill demonstrate that the government has listened to and addressed the concerns raised during the course of the Senate inquiry and in the Senate committee’s recommendations. It is inevitable, in making any amendments to the Copyright Act, which is a complex law, that there will be areas of disagreement between stakeholders. This was particularly evident from the divergent views expressed to the Senate committee. Clearly, not all amendments will be well received by copyright owners, and not all amendments will be well received by copyright users. Copyright law is an exercise in the balancing of rights in the public interest. The government believes, however, that the final bill, together with its amendments, which are the result of significant consultation and scrutiny by a parliamentary committee, has got the balance right. We believe in getting on with business and making the necessary changes.

Before I conclude, I turn to a couple of matters raised by Senator Ludwig. Senator Ludwig raised the issue—and I think Senator Crossin did too—of whether the government would conduct a public review of all the changes made by the bill after two years, as recommended by the Senate committee. In response, I would note that the government has already indicated that it will review the scope of the format shifting exception in two years to possibly include film in digital form. Given the range of reforms across a number of aspects of the act, a review in two years may be both premature and unnecessary. It is not clear why a review of the amendments relating to the jurisdiction of the Copyright Tribunal or encoded broadcasts would be necessary. Clearly, however, if the need to review a particular reform arises, the government will act at the relevant time to address the issue, as we have always done in this area.

Another area that Senator Ludwig raised relates to the number of preservation copies that libraries and archives may make and why this is not four, rather than three. In response, I note that the government amendments to the bill ensure that copying for preservation purposes will be improved by making it three copies rather than the single copy as contained in the provisions of the bill. Some institutions may complain that making three copies for preservation purposes is insufficient. Additional copies, however, may also be made in some circumstances under section 51 of the act and under new section 200AB inserted by the bill.

An officer of a key cultural institution is not required by new sections 51B, 110BA and 112AA to wait for the material to deteriorate or to have been lost or stolen before making a preservation copy or copies. An authorised officer of the institution may make an assessment of the need for a preservation copy at any time. These reforms will clearly enable institutions to meet the UNESCO guidelines for best practice preservation. That is an important issue.

There are a range of other amendments the government will be moving in the committee stage. They will be extensive, and I understand that others have amendments as well. In conclusion, this bill introduces significant reforms to the Copyright Act 1968 demonstrating this government’s ongoing commitment to an effective world-class and up-to-date copyright regime. The government amendments to the bill will ensure that the legislation addresses the key concerns raised in the Senate committee process. Once again, I thank that committee for its work and I commend the bill to the Senate.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the second reading amendment moved by Senator Ludwig be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.

Ordered that consideration of the bill in Committee of the Whole be made an order of the day for the next day of sitting.