Internet freedom threatened: the Copyright Legislation Amendment Bill 2004

Government curbs debate on trade deal bill - Internet freedom threatened

Press Release
Kerry Nettle
Senator for NSW (Greens)
6th December 2004

Greens Senator Kerry Nettle has condemned a government decision to curb debate on legislation implementing further negotiations on the US free trade agreement.

A government motion to allow the Copyright Legislation Amendment Bill 2004 to be passed this week was forced through the Senate today.

The Greens share industry concerns that the bill will have a big impact on freedom of speech and media diversity on the internet.

"This bill will have a big impact on the Australian IT industry and ordinary internet users", said Senator Nettle.

"We are hearing concerns from a wide range of the community interests, including Australian companies such as OPTUS, universities and libraries as well as internet users."

"The bill will mean internet companies will be forced to take down websites and hosting services merely on the basis of a claim they are infringing copyright. This has caused big problems in the US."

"Such claims should have to be tested in the courts; otherwise we open up Australia's internet companies to thousands of untested claims that inevitably lead to a reduction in internet diversity and freedoms."

"This bill will have an impact on anyone who uses the internet and should be given proper scrutiny and debate in Parliament and not rushed through before Christmas."

The Parliament is due to begin debate on the bill at 12.30 pm on Tuesday, December 7.

From Senator Kerry Nettle's website

Speech by Kerry Nettle
From SENATE HANSARD

Senator NETTLE (New South Wales) (7.46 p.m.)-- The US-Australia free trade agreement is a disaster for Australia's economy, culture and society. The impact of the agreement is even clearer with this Copyright Legislation Amendment Bill 2004, which will further transform Australia's intellectual property law to align it with the worst aspects of the US copyright law. It was clear from the beginning of the negotiations that, despite government claims, any agreement reached on the trade agreement would benefit US corporations at the expense of Australian industry, workers and consumers. The final deal was a dud for Australian agriculture and manufacturing industry and traded away important regulation of access to cheap medicines and intellectual property.

Earlier this year the government, with the support of the opposition, rammed through the implementing legislation for the deal, despite widespread public opposition to the agreement. We now know that even the weak amendments passed by the Senate regarding the evergreening of pharmaceutical patents are likely to be challenged by the United States. US Trade Ambassador Zoellick, in his recent letter to the Minister for Trade, Mark Vaile, released by the government last week, states: If subsequent practice reveals problems with the full exercise of US rights I have discussed above, Australia should expect that we will take appropriate remedial action.

This is exactly the danger the Greens and other critics of the trade agreement warned of. The US will use the agreement as a stick with which to break open the Pharmaceutical Benefits Scheme, undermine generics and force up the price of medicines for sick Australians --all this so that big US pharmaceutical corporations can boost their profits.

While there has been a lot of debate about the PBS and the cultural components of the free trade agreement, in many ways some of the key issues in the agreement have not been properly explored yet. While the government claims the agreement is about free trade, this intellectual property component of the trade agreement--the harmonising of our laws with the US intellectual property laws--means less free trade and more government enforcement of private monopoly rights. Chapter 17 of the free trade agreement covers trademarks, patents and copyright. Most of the clauses on intellectual property reproduce those in the United States Digital Millennium Copyright Act 1998 and those in the Singapore and Chile free trade agreements.

They are part of an ongoing agenda of the United States to push through bilateral trade agreements that enhance the control and ownership of US corporations in the IT and entertainment industry.

The US wanted these changes, because according to a new book by trade experts Linda Weiss, Elizabeth Thurbon and John Mattews: The intellectual property protected sector is now by some accounts the largest sector of the entire US economy. Everything from life forms to movies is covered in this sector. Its exports now exceed the exports of automobile, automobile parts, agricultural and aircraft industries combined. This is the real reason for the US concern to extend and strengthen IP rights. The copyright-protected sector on its own-- covering films, TV programs, home video, digital videodiscs, business and entertainment software--was estimated to be worth 5.2 per cent of US GDP in 2001, US$535 billion. In the same year, this sector achieved foreign sales of US$89 billion, making it the leading export sector in the United States ... Thus in the area of intellectual property, the US has a very definite agenda backed by very real economic interests.

The US Free Trade Agreement Implementation Act

2004 implemented this agenda in Australian law: for example, extending the life of copyright from 50 to 70 years, the so-called 'Disney' clause. The Greens opposed this legislation and the IP component of this legislation not only because it increased the powers of US corporations but also because it did not even include some of the few protections that do exist in the United States for users and consumers in the form of fair use and the free speech provisions that exist in the US constitution.

The Australian Libraries Copyright Committee explained at the time: The detrimental consequences of this will be felt broadly amongst educational, consumer, cultural and research institutions. Without expansion of the fair dealing provisions to balance the stronger copyright owner rights, institutions functioning for the benefit of the public, will bear the burden of a longer copyright term, more stringent copyright owner rights, and tougher penalties for incidental, minor and noncommercial breaches of Copyright. This will expose institutions to greater costs and greater risks. Ultimately this will adversely affect the end users of these institutions, who will not be able to access the same level of knowledge via copyrighted material.

The agreement in the legislation also went well beyond what Australia had even signed on to in the highly criticised WTO agreement on trade related aspects of intellectual property rights, known as TRIPS. Australia and Australians will not benefit from these laws if they come into force on 1 July next year. Australia already has a balance of payments deficit when it comes to intellectual property. We are a net importer of ideas and technology and our payments of royalties to foreign companies exceed our income in 2002 by more than $A1 billion. Thanks to the Howard government we now have some of the most unbalanced and restrictive intellectual property laws in the world, with holders or owners of copyright--that is, primarily big business-- holding all of the cards at the expense of users and consumers such as libraries, universities, Australian industry and ordinary consumers.

But post the election in United States the US has come back for more. The Minister for Trade, Mark Vaile, has caved in yet again, agreeing to changes to Australia's intellectual property law that go even further than international agreements and even further than the US law in protecting the US corporate owners of intellectual property at the expense of users and consumers. Why? The US are going to do whatever they can get away with in terms of furthering their own agenda, and it seems that the Howard government are all too willing to cooperate. The clauses contained in the bill--and the US has managed to get the Australian government to agree to them--will go far further than international agreements. They will set a new benchmark for the United States when it comes to their negotiations either with bilateral agreements or with multilateral agreements.

The government claim that the changes contained in this bill are merely technical or minor. But that is not what the industry groups or consumer groups are saying. Groups as diverse as Optus, Telstra, libraries, universities and the Australian Consumers Association are all very concerned by the proposals put forward in this legislation. In particular, changes which will effectively remove the safe harbour provisions that were introduced in the earlier legislation, the implementing bill, mean that diversity on the Internet will be threatened. The bill includes provisions which will do a range of different things. They will broaden the scope of offences to which criminal provisions apply to commercial piracy that does not occur in a trade context and strengthen the criminal regime for business end-user piracy, increase the obligation of copyright users to go behind the person or corporation named on the item to find out if there are additional copyright owners, narrow the scope of the incidental copies exception to temporary copies made as a necessary part of using a copy of the work and limit the transition period in which copyright users can claim compensation due to the extension of copyright from 50 to 70 years. But the provisions that the Greens and community groups are particularly concerned about regard the liabilities of Internet service providers, and these are complainants whom we believe can have the greatest impact. However, other industry groups have been pointing out concerns about other parts of this legislation as well.

Changes to copyright law forced by the US free trade agreement made earlier in the year imported from the US the so-called safe harbour scheme for Internet service providers. This scheme meant that ISPs, the Internet service providers, that operated within the guidelines and the requirements of the safe harbour would not be subject to liability for infringing copyright from materials through the hosting of a user's web sites or services. This included the transmission of infringing material, the caching of material, the hosting of web sites with infringing material and the linking to infringing material.

Internet service providers under the existing legislation must still remove infringing material if they have actual knowledge of an infringement, but they are not required to monitor their web sites and servers for infringing material. For example, if they receive a court order requiring them take down material, they need to comply. But they do not need to go looking for that material on their sites. However, items 11 and 13 contained in this bill will mean that the safe harbour provisions will go out the window. Item 11 and item 13 of the bill will have a significant and detrimental effect on the Australian IT industry and, more importantly, on ordinary consumers and users of the Internet. Item 11, which is the same as item 13, states: The carriage service provider must act expeditiously to remove or disable access to a reference residing on its system or network if the carriage service provider:

(a) becomes aware that the copyright material to which it refers is infringing; or --and this is particularly concerning--

(b) becomes aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing.

Similar clauses in the Digital Millennium Copyright Act 1998 in the United States have led to a burgeoning industry of take-down notices and claims which have meant that Internet service providers are forced into taking off line web sites and services rather than risking potential legal action.

The key problem with these items is that they force ISPs to take action regardless of the substance of the claim, or risk legal action. Claims can be spurious and unfounded yet, because they are not tested in a court prior to the ISP needing to take action, they are wide open to abuse. Some ISPs have been served with tens of thousands of take-down notices. Often these notices are automatically generated by software, which searches the Internet for potential infringements. According to the Internet Industry Association, which represents a range of industry players including Optus and Telstra through to the smaller IT companies, this bill will cause huge problems. They say, 'Internet service providers will be caught between a "rock and a hard place"--liable to copyright owners if we don't act, liable to customers if we do.' The careful balance of the rights of copyright owners, users and ISPs is severely undermined.

The Electronic Frontiers Foundation, EFF, a leading advocate for organising Internet rights and freedoms, have compiled a list of examples of some of the abuses that have occurred under similar provisions in the US Digital Millennium Copyright Act. This has meant that information in the public domain has been taken down. For example, Wal-Mart have used take-down provisions to stop web sites occurring that compare their prices to the prices of their competitors, the Church of Scientology have served take-downs on web sites that host articles critical of the Church of Scientology and the owners of trade marks have tried to use take-downs against their competitors.

The number of notices served on one company can often, as I said before, number in the thousands or, indeed, the tens of thousands. A conference was held at the University of New South Wales in April this year, at which a woman called Sarah Deutsch, who is from Verizon, a major American ISP, told the symposium: A US ISP received from January to today-- that is, from January until the end of April this year-- over 30,000 notices, only two of them actually related to materials that were on its system of network. So these were all non-compliant notices and in the past 12 months the same ISP-- which received 30,000 notices from January to April-- received over 90,000 notices.

So this is the number of notices that we are talking about being automatically or otherwise--but predominantly automatically--generated. The Australian Consumers Association has described this proposed regime as a 'recipe for disaster'. They say it 'turns Internet service providers into a policeman of other people's copyright, solely based on some sort of assertion of ownership'. The Australian Digital Alliance, which represents libraries and universities, say that a scheme such as that contained in this bill 'has to address the potential for owners to send out spurious take-down notices without reasonable claim to a copyright breach', and they have called for these clauses to be removed--something that the Greens will address in amendments.

The problem, of course, is that ISPs have no real way of testing the claims of take-down notices and will always err on the side of caution and immediately remove material subject to notification. They will always do this regardless of the rights or wrongs of the claim, because they do not want to risk the big legal battles that we have seen recently in cases such as the music industry's pursuit of Kazaa, the Internet file-sharing software company. Of course, such take-down notices could also be used politically with, for example, a takedown notice being served on the ISP of a political opponent's web site. The result, even if only temporary, could mean that the web site would be off line for weeks. It could, for example, be at a crucial or important point in an election campaign. The effect is a reduction in diversity and freedom of speech on the Internet and a huge impost on Australian IT's small and large business.

The Greens' amendments will remove from the bill the provisions which would effectively shut down the safe harbour for Internet service providers in Australia. Those are items 11 and 13 of the bill. The effect of removing these items will not prevent the enactment of alternative provisions in the future, so the government would be able to do so by regulation, as was originally envisaged in the legislation--certainly in the consultations that occurred with the industry. Hopefully, it means that government will consult further with industry and address the problems these items will cause. This legislation is unnecessary and unwelcome. It will take us even further down the path of the US monopoly copyright law without the protections. In the cases I am talking about, it will be worse than the US law. It is not about protecting Australian consumers and the IT industry but everything about helping giant US media and IT corporations. The Greens opposed the US free trade agreement implementing legislation, and we will also be opposing this bill today as well as moving the amendments I have outlined and others that are yet to be circulated. We will continue to campaign in support of genuine fair trade rather than free trade. We will also campaign for a better deal for Australian industry and ordinary people who are affected by such agreements, not just in the IP component of the legislation that we are talking about today but also more generally.

Democrats: Our Internet Industry Sold Out

Press Release, Senator Aden Ridgeway
Democrats Senator for New South Wales
08 December 2004

Copyright and USFTA - Our Internet Industry Sold Out

The Australian Democrats have condemned the ALP's support for the Copyright Legislation Amendment Bill 2004, which passed the Senate last night.

"This bill not only goes far beyond what is required by the FTA, but also goes far beyond the USA's own copyright system and makes internet service providers in Australia liable for material hosted on their network," said Democrats Trade spokesperson, Senator Aden Ridgeway.

"The Government were desperate to tie up all loose ends associated with the Free Trade Agreement and applied intense pressure to the Senate to pass the bill quickly.

"The text of the bill was released only last week; regulations that will explain how the system will work in practice have not yet been drafted; and a hastily convened two hour Senate Inquiry was held for two hours on Monday evening.

"At the inquiry, I questioned representatives from the internet industry and heard their grave concerns with the bill.

"Irrespective of the commitments our Executive may or may not have entered into with the USA regarding the Free Trade Agreement, we have an obligation to ensure Australian industry's interests are protected.

"The ALP allowed themselves to be bullied into passing this seriously flawed and potentially devastating piece of legislation," concluded Senator Ridgeway.

Source: http://www.democrats.org.au/news/index.htm?press_id=4302

See also Electronic Frontiers Australia | Creative Commons