[d@DCC] [Random-bits] US/AU free trade and electronic commerce (fwd)

[Russell McOrmond]

  Interesting that the USA is using bilateral agreements to impose their
"Micky Mouse" laws.

(edited to remove some email addresses from message).
---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

---------- Forwarded message ----------
Date: Mon, 09 Feb 2004 18:15:33 -0500
From: James Love
To: random-bits at venice.essential.org
Subject: [Random-bits] US/AU free trade and electronic commerce


-------- Original Message --------
Subject: 	free trade and electronic commerce
Date: 	Mon, 09 Feb 2004 17:09:37 +1100
From: 	Matthew Rimmer

Dear Jamie Love,
Hi.  I am a legal academic at the Australian National University,
specialising in intellectual property.  I wonder whether you would mind
publicising an important development regarding the bilateral free trade
agreement between Australia and the US in your weblists:
http://www.dfat.gov.au/trade/negotiations/us.html

I am concerned that, as part of the Free Trade Agreement with the United
States of America, the Australian Federal Government has agreed to adopt
a version of the Sonny Bono Copyright Term Extension Act 1998 (US).  The
term of copyright protection in Australia will be extended from the life
of the author plus 50 years to life of the author plus 70 years.

The United States statute was literally a "Mickey Mouse" bill.  It had
been the result of intense lobbying by a group of powerful corporate
copyright holders, most notably Walt Disney, which faced the expiry of
its copyright on Mickey Mouse and other famous cartoon characters. The
original sponsor of the bill, Congressman and composer Sonny Bono, who
found fame working with Cher, wanted copyright to last forever.  The
legislation extended the term of copyright protection for copyright
works from the life of the author plus 50 years to the life of the
author plus 70 years, in line with the European Union.  It also extended
the term of copyright protection for works made for hire, and existing
works, to at least 95 years.

In the past, the Federal Government has rejected proposals to extend the
term of copyright protection.   The Intellectual Property Competition
Review Committee - lead by the redoubtable economist Henry Ergas and
intellectual property academic Jill McKeough - investigated whether the
copyright term should be extended, in accordance with the European Union
and the United States of America. It could find no empirical evidence
whatsoever to support such an extension of the copyright term.
Accordingly, the Committee recommended that there was no justification
to change the copyright term in the context of Australia.

In November 2003, a spokeswoman for the Minister for Communications, IT
and the Arts, Daryl Williams said that the Government "appreciates the
value of having material available in the public domain".   She said:
"The Government will consider any proposals for increased copyright
protection in light of the fact that Australia is a net importer of
content.  Australian copyright laws currently promote innovation and
investment in the content and cultural industries, while at the same
time providing Australian consumers, educators and researchers with
reasonable access to copyright material."

In December 2003, Trade Minister Mark Vaile pledged to defend the
copyright term in Australia:  "It is a very important issue,
particularly in terms of cost to libraries, educational institutions and
the like here in Australia," he told The Australian Financial Review.
"There is a whole constituency out there with a strong view against
copyright term extension and we are arguing that case."

Two months later, it seems that the Coalition Federal Government has
meekly capitulated to the demands of the United States of America.  A
key point of the new chapter on intellectual property in the Free Trade
Agreement promises "an increased term of protection for copyright material".

I am concerned that the extension of the copyright term will interfere
with the activities of libraries, cultural institutions, and electronic
publishers.  As Colette Ormond of the Australian Library and Information
Association has observed:

"Extension of the copyright term in the US benefited the publishing
conglomerates and film and record producers but disadvantaged copyright
users. Amateur musicians, for example, found that the licensed cost of a
music score for a one-night performance increased from $100 to $1000.
The worst result for copyright users was that authors and composers
whose work was out of copyright became protected again.  How was the
balance of interests in copyright served by this? It wasn't.  The
rewards to Australian copyright owners in extending the term of
protection are minimal because they don't have the huge product of major
European and US publishers and never will have."

There are serious economic implications for Australia.  Noble-prize
winning economist Milton Friedman testified in the Supreme Court case
that 'it is highly unlikely that the economic benefits from copyright
extension under the Copyright Term Extension Act outweigh the additional
costs'. He feared that the legislation would have a detrimental impact
upon the welfare of consumers.

Furthermore, it looks like Australia has adopted key features of the
Digital Millennium Copyright Act - the tighter technological protection
measures and strong regime regulating Internet Service Providers.  This
will undercut the Digital Agenda Act Review process.

I think that it is also important to emphasize that the agreement will
not harmonise IP laws between Australia and the United States.  It is a
very selective process.  Australia has adopted the harsher measures of
the Digital Millennium Copyright Act and the Copyright Term Extension
Act.  However, it has not accepted the higher standard of originality or
the open-ended fair use defence of the United States.
As a result, Australia will arguably have even higher standards of
copyright protection than the United States.

Cheers,
Dr Matthew Rimmer
Faculty of Law
The Australian National University
(02) 61254164
http://law.anu.edu.au/scripts/StaffDetails.asp?StaffID=238
Rimmer, M. "Free Mickey: The Copyright Term and the Public Domain",
Incite, March 2003, Vol. 24 (3), p. 12,
http://www.alia.org.au/incite/2003/03/mickey.html

Rimmer, M. "The Dead Poets Society: The Copyright Term and the Public
Domain", First Monday, June 2003, Vol. 8, No. 6, URL:
http://firstmonday.org/issues/issue8_6/rimmer/index.html

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