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

I move opposition amendment (29) on sheet 5133 revised:

(29)  Schedule 12, item 1, page 184 (line 15), omit subparagraph (a)(ii) of the definition of access control technological protection measure, substitute:

                  (ii)    prevents, inhibits or restricts the doing of an act comprised in copyright; and”.

                  (ii)    prevents, inhibits or restricts the doing of an act comprised in copyright; and”.

This is a very important amendment; it seeks to change the definition of a technological protection measure to ensure that TPMs, as they are known for the purposes of this bill, are linked to the protection from copyright infringement. I want to pick up my comments on TPMs where I left off in my speech in the second reading debate. As I was saying, the bill purports to close off some of the more obvious examples of TPMs that are not designed to prevent infringement of copyright but, indeed, designed to exploit market power. New exceptions have been created to prevent market segmentation and abuse of spare parts markets. Both of those exceptions are welcomed.

However, I think it is in a pretty sneaky and unforgivable way that the Howard government has determined to remove the link between the use of TPMs and the protection of infringement of copyright in the definition of a TPM in a bill. The definition of a TPM proposed in this bill has the effect of giving corporations who own copyright the ability to use that power under the Copyright Act to protect business models—not copyright. No link to copyright protection will be required. I think this represents an anti-free-trade and anti-open-market position. I am very disappointed that there has not been more of an explanation from the government about why they have taken this position. To me, and to a lot of commentators and observers, this seems to be about protecting incumbent operators in the market at the expense of new market entrants, and it is therefore anticompetitive.

To say what we are debating here has significant ramifications is an understatement. This is a substantial power shift in favour of copyright holders—but only those that are big and powerful enough to pursue a comprehensive TPM strategy. Technological protection measures are not simple things and they require a lot of resources. We are not talking about copyright owners who are creators or artists; it is the companies that have the global distribution rights of the copyrighted material. Unfortunately, this is part of a pattern of the Howard government. This government is very happy to do these things at the behest of the big end of town. It is a form of patronage that we are now seeing reflected in this aspect of this bill, and it is further evidence of a whittling away of the capacity of smaller innovators and technologists to come up with new technology solutions and new innovations.

It is interesting to note that the exposure draft of this bill did not have this deficient definition. In fact, it contained a definition that kept the link between the use of TPMs and protection from copyright infringement. It is worth noting that the government majority House of Representatives review of technological protection measures—they had a whole review of it in the House—came up with the following recommendation:

The Committee recommends that, in the legislation implementing Article 17.4.7 of the Australia-United States Free Trade Agreement, the definition of technological protection measure/effective technological measure clearly require a direct link between access control and copyright protection.

That was the House committee. I think, to their serious credit, government senators on the Senate Standing Committee on Legal and Constitutional Affairs also recommend a return to this original definition. Two parliamentary committees and one exposure draft agree with Labor’s amendment.

This issue attracted a lot of attention at the disgracefully brief Senate inquiry, and we heard conflicting evidence of legal opinions—some said that the definition of the TPM in the bill we are debating was required to satisfy the free trade agreement requirements, and we heard evidence and legal opinions that in fact the exposure draft definition was required to satisfy our obligations under the free trade agreement. So we got it from all sides. Labor and Liberal senators on the committee were both convinced that the intent of the free trade agreement and its rather vague wording permits the definition that contains the link and that such a definition adequately fulfils our obligations.

I cannot speak for the Liberal senators’ reasoning, but Labor has been convinced of the need for the link to exist, on the basis of maintaining the integrity of the purpose of the laws: to protect copyright. In addition, we heard advice that, in fact, that definition was the only definition that would satisfy the free trade agreement.

We asked at the Senate committee hearing whether the department had received advice in the time between the exposure draft and the bill, and the department informed the committee that they had received advice that led them to unlink the TPM definition and the protection from copyright infringement. The Senate committee requested and received, I presume, at least some of this advice—and key aspects of it confirmed Labor’s fears that this push to change the definition was indeed to protect future business models of incumbent players.

It is important to note that this advice was provided to the committee on the condition that it was kept in confidence, and this was claimed because of the commercial sensitivity of the advice—because it was all about business models! I think it is obvious that the government has been got at, and it is fair for me to ask the minister on what specific basis they changed their minds. I would also like to ask whether they received any representations from US interests or, indeed, the US embassy.

It is also important to refute claims by AFACT, representing the Motion Picture Association and other copyright holders and distributors, that the exposure draft did not in fact comply with the free trade agreement. I would like to refer to evidence presented to the Senate inquiry from Professor Brian Fitzgerald et al in response to a direct question by Senator Ludwig. Senator Ludwig’s question was: what is your response to evidence from the department that the AUSTFA requires the TPM provisions to be drafted as they are currently drafted—that is, incorporating a linkage to copyright infringement would not meet the requirements of the free trade agreement? A summary of the answer provided by Professor Fitzgerald was that the incorporation of a link to preventing or inhibiting copyright infringement in the definition of TPM and access control TPM is supported by the text of the AUSTFA, the findings of the Office of International Law, the findings of the House of Representatives Standing Committee on Legal and Constitutional Affairs and US case law. Professor Fitzgerald expanded on this by asserting that:

The Attorney-General’s Department response to the committee is not an obstacle in this interpretation. In substance the article cited by the Attorney-General’s Department—that is, 17.4.7(d)—prevents Australia from requiring copyright owners to prove that an actual infringement has occurred; for example, that someone has actually copied the work to obtain protection under the TPM provisions. It does not limit the definition of TPM or prevent Australia from enacting laws that require a copyright owner to prove that a technology was designed to prevent or inhibit copyright infringement for it to be a TPM.

Finally, the professor cites two principal statements in the free trade agreement which prescribed the boundaries of the definitions of technological protection measures and access control technological protection measures under domestic law, and these are articles 17.4.7(a) and 17.4.7(b). Article 17.4.7(a) insists on a connection with the exercise of copyright owners’ rights. Article 7A says:

... in order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers and producers of phonograms using connection with the exercise of their rights—

that is the key phrase—

and that restrict unauthorised acts in respect of their works, performances and phonograms.

‘And’ is obviously a key word in that interpretation. Article 7(b) defines an effective TPM as including both devices that protect copyright and devices that control access to a work. It states:

An effective technological measure means any technology device or component that in the normal course of its operation controls access to a protected work, performance, phonogram or other protected subject matter or protects any copyright.

The key word in the phrase ‘or protects any copyright’ is ‘or’. But the opinion of Professor Fitzgerald and his colleague Mr Dale Clapperton submitted that in taking both 17.4.7(a) and (b) into account the correct interpretation of article 17.4.7 requires a direct link between any effective TPM and the prevention of copyright infringement. Labor agrees. The impact of the government’s definition is not only an abuse of copyright law; it also creates massive disincentives for software innovation. Combined with inadequate exceptions to permit the development of interoperable products, the threat of criminal offences is enough to prevent the development of such interoperable products.

I will speak briefly to Labor’s next amendment, which looks at inserting another inclusion into the definition of computer programs. Interoperable products allow consumers genuine options in their use of software and create alternative non-proprietary products. This is important to ensure that the perpetuation or emergence of monopolies is avoided. This is particularly important for innovators in the open source area.

We will be moving an amendment for an exception to permit the development of not just interoperable computer programs but the data as well. That is Labor’s next amendment. Without this exception data can be locked up and access denied without the use of proprietary products. Even if the data itself was not copyright protected, which is quite absurd, it defies archiving principles.

My colleague Senator Ludwig has just suggested that we move the two remaining opposition amendments together—that is, opposition amendments (30) and (31). I seek leave to do that.

Leave granted.

I move opposition amendments (30) and (31) on sheet 5133 revised:

202B Contractual evasion of technological protection measures

I turn now to opposition amendment (30). Including data in this definition and exception to allow computer interoperability as a legitimate reason to circumvent a technological protection measure overcomes a particular concern of experienced technologists in the area, whereby without the definition of data being included in that way it is quite possible for interoperable computer programs to be produced but the data to be unavailable because it is stored in a proprietary format. This is particularly true not when the data itself has any copyright protection but when in fact the format in which the data is stored becomes inaccessible if it is not available through that interoperability exception.

The issue of the interoperability of data is an important one, and I am familiar with the Commonwealth government’s archiving policies in this regard. A great deal of effort has been put in by the National Archives to promote the use of data formats and storage formats that are open sourced—that are accessible. The issue for them is very much that the Commonwealth ought not to be locked into licensing arrangements surrounding proprietary software and/or data standards to access that content in the future. Without those open standards or the ability to interoperate with both the programs and the data itself, serious commercial disadvantage and public policy disadvantage can be inflicted. (Time expired)