Copyright Amendment Legislatio Essay, Research Paper

Unlike much copyright law which struggles to inspire the imagination, this legislation is of particular interest and significance as it aims to set the ground rules, the rights, for our emerging knowledge economy, a central tenet of current political discourse and, I hope, a common vision for Australia. It is the potential of these rights, coupled with the ubiquity of the application of these new rights with technological innovations, which has captured the attention of so many interests. Of course, it was only recently that digital issues were debated in this place in the form of the digital television debate. It was a quite hotly contested debate. I am happy to be speaking about digital issues again today in the chamber but, I guess, rather in the general electronic sense of the word rather than comparing two analog spectrums and, say, the possibilities of multi channelling.

The bill’s central aim is to ensure that copyright law continues to promote creative endeavour while allowing reasonable access to copyright material on the Internet and through new communication technologies. The bill introduces a new right of communication to replace the broadcasting right of the 1968 act. This right is intended to be technologically neutral, thereby providing copyright to all interactive transmissions datacasting, Internet services and similar emerging technologies as well as technologies with which we are more familiar, such as standard broadcasting technologies. The bill introduces three new enforcement measures. These concern the manufacture of and dealing in devices for the circumvention of technological projection measures, that is in certain cases; the intentional removal or alteration of electronic rights management information, like digital watermarks; and the manufacture of and dealing in devices for the unauthorised reception of encoded subscription broadcasts, like decoders, to allow the unauthorised reception of pay TV signals.

The bill’s objects reflect the aim of trying to strike a balance between access and copyright protection. The Australian Democrats, as they have said a number of times in the parliament, support a strong and enforceable intellectual property scheme which encourages creativity and innovation. However, we also recognise that a balance between encouraging creativity and the commercialisation of that creativity is required. This means that in every circumstance the benefits to the creator and the broader community must be weighted for the benefit of all Australians. We believe that individual, community and broader Australian interests should be examined and exclusive rights granted where they will benefit. The Democrats support the pursuit of such a balance under this scheme, though the extent to which this balance has been appropriately struck can only be assessed comprehensively after the system has been in operation for a period of time. This bill has undergone a long gestation and drafting process I do not think anyone would disagree with that. Its inception was under the last Labor government, though the need to extend copyright to the digital age was also recognised after the formation of the coalition government. I am not sure if I am being too kind to you, Senator Kemp, but feel free to interject at any stage. From these beginnings the Copyright Amendment (Digital Agenda) Bill was drafted and, of course, made its gradual progression to the Senate. I also acknowledge the extensive revision of the bill since it was released as an exposure draft for public comment back in February last year.

The Democrats also recognise the need for balanced copyright legislation for the emerging digital age and the pace at which digital technologies are developing and being applied. As all contributors to this debate have emphasised so far, it is a complex debate, but it is obviously an important one and a reasonably interesting one. As we know, Australians are great users of technology; we take on and we adopt technology at a greater pace than almost any other nation. Australians love the potential of the digital age, and I believe that our legislation should reflect this and incorporate the flexibility and balance that this technological change requires. For these reasons, the Democrats support the speedy passage of this legislation through the Senate.

The Democrats recognise that, while this process has produced a bill with sufficient middle ground among interested parties, it has also skewed the focus of interest in this bill, which should really be about the recognition and the promotion of creative endeavour foremostly, Australian creative endeavour. Whether you are a creator, a communicator, a collecting society or a user of copyright material, creative endeavour is of common interest and value to all. Innovative endeavour is a commodity recognised in both the `knowledge nation’ statements and we have heard a bit about those again today and the `can-do country’ outlook, so I think both old parties have some recognition of innovative endeavour. This bill sets out the rights surrounding this commodity, though its significance has been somewhat camouflaged in the bill’s negotiation processes.

Some of these concepts were debated and highlighted at the National Innovation Summit this year. I was fortunate to attend that summit in February, and I have put on record a number of times that the Democrats were grateful for the invitation from Senator Minchin. However, we do believe that invitations to those kinds of forums should be cross-party invitations. At the innovation summit, the interrelation of commercial and basic research was emphasised. Libraries play an integral role in this process and must facilitate the connection between those two areas of growth for Australia’s knowledge economy. Australia’s copyright deficit is a pressing concern. The Australian Libraries Copyright Committee estimates that three out of every four dollars made by copyright in Australia goes directly overseas. Additionally, 95 per cent of the software that Australia uses is from overseas. While it is true that Australia’s economy should specialise and should not necessarily excel in too many emerging markets, we must focus on those areas where we hold a natural advantage and international expertise. Once we have the rights in place, we must put promotion of Australian copyright at the top of the priority list. Whether it is software applications for bioinformatics applications or copyright for Australian music, we must undertake a multifaceted approach to legislation, with, of course, industry cooperation. I hope that once this bill is passed the interested parties and the government will focus on the issue of Australia’s copyright deficit and will work towards promoting more Australian content and work.

As I stated in my opening comments, the bill establishes the rights which will set the foundation for transactions in our knowledge economy of the future. I do not believe we can expect to get it 100 per cent right the first time; translating the copyright system for the demands of the emerging digital economy is, of course, a large task. I commend the recognition of this by both the old parties and their commitments regarding it. Both parties have given an undertaking to review this copyright regime in the case of Labor, after about 12 months if they are in office; and three years after the introduction of this bill under a coalition government.

While the Democrats acknowledge that the task of extending copyright to the digital age involves balancing numerous public interests in specific areas of copyright, which has been attempted by striving towards what has been touted as a technologically neutral system that focuses on generalist rights, the Democrats also acknowledge that some communities require specific reference and perhaps specific assistance. My concern has been raised regarding the treatment of indigenous cultural and intellectual property under the bill. There is no doubt that the digital communication medium increases access exponentially I think that is something that Senator Lundy was referring to in her address. This is not a problem; access should be promoted, and I do not think that anyone denies that. However, it must be noted that this increased access does have a specific impact on certain communities and could exacerbate current inequalities in some cases if it is not properly addressed. One such community, of course, is our indigenous population in relation to their cultural and intellectual property. The appropriation of traditional cultural and intellectual property by non owner-users over the last 200 years of Australia’s history has meant eroded indigenous management and control of intellectual property and sensitive cultural information. This situation will be exacerbated with the extension of digitalisation, as holders and non owner-users of such resources may make available such material without the knowledge, let alone the permission, of the indigenous owners. Approval or disapproval of the use of copying or digitalisation of indigenous IP whether it be genealogical data, ethnographic data, biological intellectual property, recordings or other types of knowledge and information should be at the discretion of the appropriate individuals, communities, custodians and organisations, and they should have the discretion to apply laws and cultural protocols which are determined by customary law and practice.

The Democrats are not pursuing specific amendments to the Copyright Amendment Act to address these issues. However, we do recommend that these issues are comprehensively dealt with in the near future in close negotiations with indigenous communities to make sure that we address their very deep and long-standing concerns regarding cultural appropriation. I would also stress that the operation of the copyright bill must be monitored to assess what impact it is having on the protection of indigenous cultural and intellectual property rights. The integrity of these fundamental rights must form a fundamental part of the review process that the old parties have pledged to undertake, under varying time lines, after the introduction of the bill. The Democrats will be looking to address these issues in upcoming copyright legislation.

On balance, this bill is a first step in the establishment of true e-commerce. To harness the full economic capacity of new interactive communications and to move beyond simple Net catalogue shopping, we must establish the basic currency for digital knowledge transactions. This bill is a step towards appropriate recognition of the source of such works and appropriate remuneration for such endeavours. While questions still remain regarding the enforcement of copyright on the Net, policing of the new digital environment and the effectiveness of translating some traditional products and transactions directly onto the Net, it is generally believed that this legislation is needed now and will provide an effective framework in the new digital environment, which of course will continue to expand over the coming years. I would suggest that, while this bill does deal with works of traditional authors and I think Senator Cooney referred to the author Charles Dickens I believe the real potential of this legislation is in aiding the redefinition of how knowledge is packaged and marketed in the digital environment.

Finally, I note Senator Bolkus’s comments in relation to his party’s pursuit of an amendment dealing with retransmission rights for directors. As he knows, the Democrats are very keen to pursue that issue as well. We are sympathetic for what the Labor Party’s amendment would have achieved and would have quite happily voted for the amendment they pursued in the lower house except that there were clearly defects in that amendment which would not have resulted in what we believe would have been appropriate or good law. For that reason the Democrats have chosen to pursue the attainment of that issue through different means. I commend the minister, his office and other officers for pursuing this matter that has now been outlined.

I think it was perhaps a little cheeky of Senator Bolkus to suggest that, if it were not for the Labor Party pursuing this issue, we would not be investigating the issue through an inquiry and hopefully having some resolution to the issue of directors’ rights before the end of the year. Having said that, I do acknowledge that the Labor Party moved that amendment in the lower house. I do not believe it was necessarily the best amendment to achieve the ends that they hoped to achieve. Commendations to everyone who has been involved in that process. I am glad they were able to achieve an outcome that I think is more appropriate and satisfying.