Two international trade agreements on the cards for Australia will limit the copyright reform that the government can undertake as part of its upcoming copyright review, according to a New York Law School professor.
The Australian Law Reform Commission (ALRC), under the guidance of commissioner Jill McKeough, has been tasked with reviewing the Copyright Act to make sure that exemptions are still relevant, given the massive technological advancements since the legislation was last updated in 2004. In particular, Attorney-General Nicola Roxon wants the ALRC to examine the provisions that allow individuals to record broadcasts for playing back at a later time, in light of the recent copyright battle between Optus and the Australian Football League (AFL).
At the same time, Australia is in talks on two separate agreements that will have an impact on copyright reform: the Trans-Pacific Partnership Agreement (TPP) and the Anti-Counterfeiting Trade Agreement (ACTA).
TPP is an agreement between Australia, the United States, Vietnam, Malaysia, Brunei Darussalam, Chile, New Zealand and Singapore, aimed at making trade between the various nations easier. According to the Department of Foreign Affairs in a recent Budget Estimates hearing, the TPP agreement is going to be near 1000 pages long when it is completed later in the year, and will include a significant chapter relating to intellectual property rights between the signatory nations. A draft of this chapter was leaked in February last year (PDF). The parties hope to finalise the text sometime later this year. After the treaty is completed, individual countries will have to sign and ratify it.
ACTA, meanwhile, will introduce a legal framework for 37 countries on copyright protection. It aims to curb the flow of counterfeit goods across the globe, and hinder the digital copyright infringement of music and films. Australia and 29 other nations have already signed the agreement, although no country has yet ratified the proposal, and it has been met with strong opposition by members of the European Parliament.
The Department of Foreign Affairs has repeatedly asserted that ratifying both agreements would not require any change in intellectual property law in Australia as it stands today. This is a view shared by expatriate New York Law School professor Dan Hunter, who told an Intellectual Property Institute of Australia briefing in Sydney last night that Australian law is mostly compatible with the agreements — for now.
"Australia has been — well, I don't want to say a servile lapdog of the United States — but it's been one of the countries which has the highest levels of protection of intellectual property for whatever reason, so it's not like that much needs to be changed," he said.
But he said that if Australia ratifies both treaties, any recommendations from the copyright review — which is due to report at the end of 2013 — would be unlikely to be adopted by government, unless the recommendations conform with those treaties.
He said that in negotiating with the US, Australian negotiators will likely try to seek the best deal for areas like agriculture and mining, while the "digital future of Australia will inevitably be sold down the river for other interests that have more clout".
"It turns out that because Australia at the moment is living within the resources boom, that's the thing that matters more than anything else. What that means is that the opportunities for expanding the scope for indigenous Australian production of sorts of content that might infringe American intellectual property is basically going to go away, because we're going to trade that off."
He said the United States, on the other hand, will have an intense focus on protecting the intellectual property rights of the film industry, the music industry and the pharmaceutical industry, and would use mining and agriculture trade-offs to expand protected IP rights.
Yet, despite his cynicism, Hunter said that he believes the copyright review could achieve much better results for reform in Australia than it would in the United States.
"The process of having law reform in copyright is much more capable of being attuned to the public interests [in Australia], listening to the theory and the academic activist community that presents arguments in relation to that," he said. "It's actually hard to get any traction within the United States for that particular movement, so I think Australia is much better placed than America is to balance out those interests."
In light of the European rejection of ACTA, ZDNet Australia has asked for comment on Australia's position on whether it still intends to ratify ACTA, but so far the Department of Foreign Affairs has not responded to these requests.