When the US says jump, we say....

commentary It's back to the drawing board for Mark Vaile and Robert Zoellick this week. The Australian Trade Minister and the US Trade Representative breathed a sigh of relief after a free trade agreement (FTA) between the two countries was finally sealed but now comes the task of finalising the legal nuts and bolts -- a mission which could take several months.

commentary It's back to the drawing board for Mark Vaile and Robert Zoellick this week. The Australian Trade Minister and the US Trade Representative breathed a sigh of relief after a free trade agreement (FTA) between the two countries was finally sealed but now comes the task of finalising the legal nuts and bolts -- a mission which could take several months.

Although on the surface, the Agreement was hailed as a "landmark victory" by both camps, the public relations spin doctors were busy at work as evidenced from media coverage on both sides of the Pacific.

In order to get the real picture, one needs to examine the document with a fine-tooth comb or separate the wheat from the chaff, so to speak. Of particular interest is the issue of copyright and how Australia will have to model its laws after the US Millennium Copyright Act, widely known as the Digital Millennium Copyright Act (DMCA).

The DMCA was passed in 1998 and explicitly seeks to criminalise tools that "circumvent" encryption schemes and the act of "trafficking" in circumvention tools. In international trade circles, US negotiators are known to use the DMCA as a bargaining chip in exchange for terms more favourable to the American economy.

But not all Americans see the benefit of a world dominated by draconian laws which seems to favour the powerful few. Robin Gross, executive director of IP Justice, a non-profit group that opposes the DMCA, is one such person.

Clearly disturbed by the US-Australia FTA, she told ZDNet Australia: "I am very concerned about the US' policy to impose unbalanced intellectual property rules on foreign countries through trade agreements."

"This agreement is particularly troubling. It will force Australia to adopt the new "US-standard" extended term for copyright protection, criminalise small-scale non-commercial infringements, impose DMCA-like "anti-circumvention" measures, which are already shown to be a disaster in the US, and impose burdens on Internet Service Providers to disable their customers' use of the Internet.

"All of these provisions are well above internationally recognised standards, such as those found in the WTO/GATT (World Trade Organization/General Agreement on Tariffs and Trade) TRIPS (Trade-related Aspects of Intellectual Property Rights) Agreement," Gross said.

The most evident backer of the DMCA is the US entertainment industry, with the powerful Recording Industry Association of America (RIAA) positioned as it head cheerleader. This lobby group has its tentacles far and wide, and the recent raids on peer-to-peer companies Sharman Networks and Brilliant Digital Entertainment is a good case in point.

Last Friday, the Australian Recording Industry Association's Music Industry Piracy Investigations (MIPI) unit, armed with an Anton Piller order -- which allows a copyright holder to enter a premises to search for and seize material that allegedly breaches copyright without alerting the target through court proceedings -- also raided several ISPs and universities, along with the homes of key executives from both companies.

Peer-to-peer file-sharing companies have long been a bane to the music industry for its part -- preceived or otherwise -- in allegedly distributing copyright work for free. But as Gross warned, the US-Australia FTA marks a clear example of the American policy to continue to increase rights of major copyright holders at the expense of public interest.

This is a move to use foreign trade agreements as a means to force other nations to change their laws to best suit a particular US industry, Gross said. So while ministers Vaile and Zoellick urge the public to look at the broader picture, the Australian government must realise that any law modelled after the DMCA will have far-reaching ramifications and our interests have to come first -- in a real or virtual world.

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