Media Release

12 February 2004

EFA dismayed by IP Clauses of Free Trade Agreement

Electronic Frontiers Australia (EFA) today expressed dismay about the intellectual property clauses of the recently announced Free Trade Agreement with the United States of America, saying they would leave average Australians at the mercy of legal action from multinational media companies, and represent a massive step backwards for Australian Intellectual Property law.

"The United States has one of the worst systems of intellectual property laws in the world." said EFA board member Dale Clapperton. "Their Digital Millennium Copyright Act (DMCA) has been widely condemned by civil liberties and users groups throughout the world, and now the Howard government has committed itself to implementing its worst, most insidious provisions."

US copyright terms have been extended multiple times at the behest of lobbyists, and now extend to 120 years from publication, a period which has no purpose but to protect the vested interests of large corporate copyright holders. The 50 years (from the death of the author) afforded by Australian law are ample, promote the growth and reuse of public domain material, supporting ongoing innovation and development both in the arts and business, and are in line with Australia's commitments under the World Intellectual Property Organization treaty.

"Nothing published in the United States of America since 1923 has ever come into the public domain, thanks to lobbying from the music and motion picture industries to repeatedly extend the term of copyright. The public domain has ceased to grow, and unless these continual senseless extensions are stopped, it will never grow again."

There is nothing positive for Australia in these clauses. No additional usage rights are granted to Australians or Australian companies, and these provisions are a blatant sell-out to the interests of large US-based media companies.

Additionally, "harmonisation" of Australian patent law with the United States risks the creation of "software patents" in Australia. These types of patents have been regularly abused in the United States by major software companies who use them to intimidate and suppress competition and innovation. Litigation over the alleged infringement of "software patents" has become a lucrative business model in the United States, and is a path that Australia would be ill-advised to follow.

"The Howard government intends to sell out the Intellectual Property rights of average Australians to billion-dollar music and motion picture companies in the United States, who can use these new enforcement powers to prosecute Australians for trivial infractions of copyright, that would be legal under American law.

Australian copyright law recognises only very limited 'fair dealing' rights, typically for the purposes of scholarly study or review. In contrast, Americans enjoy wide-ranging 'fair use' rights, which Australians do not, such as the right to record TV programs for viewing at a later time, or to copy a legally purchased Compact Disk onto an audio cassette. Unless very specific and limited exemptions apply, Australians who perform these acts are breaking the law.

"If the Howard government couples the draconian enforcement and prosecution provisions of the DMCA with the already unbalanced Australian copyright law, it will place every Australian at the mercy of a lawsuit for breach of copyright", Clapperton continued. "It will turn the Australian Internet industry into a litigation mill, as well-funded US media groups launch waves of prosecutions against Internet users and Internet Service Providers themselves."

-- Ends --

(Note: It is intended that more comprehensive analysis of these provisions of the Free Trade Agreement will be made when the full text of the Agreement is released to the public.)

Below is:
- Background information
- Contact details for media

Background:

An agreed text for the Australia-United States Free Trade Agreement was reached on February 8. The agreed text must be approved by the US Congress, but does not require approval by the Australian Parliament. The Australian Government must then pass legislation to implement the provisions of the FTA to give them effect.

DFAT fact sheet on the Intellectual Property chapter of the FTA:
http://www.dfat.gov.au/trade/negotiations/us_fta/outcomes/08_intellectual_property.html

Electronic Frontiers Foundation coverage of the US Digital Millennium Copyright Act (DMCA):
http://www.eff.org/IP/DRM/DMCA/

Electronic Frontiers Foundation coverage of United States "software patent" issues:
http://www.eff.org/IP/

Details of instances in which Copyright, Patent and DMCA law have been abused in the United States to suppress freedom of speech:
http://www.chillingeffects.org/

Australian Copyright Council fact sheets on the legality of copying music and TV programs:
http://www.copyright.org.au/PDF/InfoSheets/G070.pdf
http://www.copyright.org.au/PDF/InfoSheets/G025.pdf

About EFA:

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.

Media Contacts:

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Electronic Frontiers Australia Inc -- http://www.efa.org.au/
URL of this release: http://www.efa.org.au/Publish/PR040212.html
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