Fair Use Left Out of Trade Agreement: Government Action Requested Urgently

The Australian Digital Alliance (ADA) and the Australian Libraries Copyright Committee today called on the Government to urgently amend the Copyright Act 1968 (Cth) to recognise an open ended defence of fair use.

The ADA and ALCC stated that such reforms are necessary in light of the deleterious impact of the US Free Trade Agreement Implementation Act 2004 (Cth) upon libraries, universities, cultural institutions, and software developers.

Whilst the Government outlined the benefits of harmonisation of intellectual property laws between Australia and the US throughout AUSFTA negotiations, the ADA and ALCC stated their concerns and disappointment that harmonisation has not been effected across the board in the implementation bill, but only selectively, at the expense of users of copyrighted material.

A broader fair use style doctrine, such as exists in the US in order to balance the strong owner-protective provisions of the US Copyright legislation, has not been incorporated into Australian law. The law in relation to copyright which is currently scheduled to take effect on or about January 2005, harmonises only those aspects of US law which favour copyright owners.

Rather than aligning the US and Australian copyright law through the harmonisation process, the result with respect to fair use provisions will put Australians at a significant disadvantage to US citizens.

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 non-commercial 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 ADA and ALCC endorsed recommendations of the Copyright Law Review Committee, the Joint Standing Committee on Treaties, and the Senate Select Committee on the AUSFTA, saying that “without appropriate amendments, the changes envisaged by the FTA will tip the copyright balance unacceptably in favour of copyright owners “. All three Committees have at various times called for implementation of broader protective legislation for copyright users, both prior to and in response to the AUSFTA.

The Implementation Bill has now passed through the Senate, and amendments which extend the rights of copyright owners may be enshrined in law as early as January 2005.

This media release is made on behalf of the Australian Libraries’ Copyright Committee (ALCC) and the Australian Digital Alliance (ADA). The ADA is a coalition of public and private sector interests formed to promote balanced copyright law. ADA members include universities, software companies, libraries, schools, museums, galleries and individuals. The ALCC is a cross-sectoral committee formed to consider the impact of copyright law reform on Australian libraries The ADA and the ALCC are united by the idea that copyright law must balance a fair return to creators with a reasonable level of access to knowledge for the public.

The Submission to Government can be found on the ADA (www.digital.org.au) and ALCC (www.digital.org.au/alcc) websites.