The Weekend Australian
Big FTA stoush brewing on copyright
29 June 2004
A FULL-SCALE political stoush is brewing over intellectual property provisions in the Australia-US free trade agreement following the passage of enabling legislation last week.
Information on the FTA has been tightly controlled by the Howard Government since a draft was released after year-long negotiations, and interest groups are champing at the bit to push their views.
The open source movement in Australia is leaving nothing to chance in making sure its opposition to the FTA is heard loud and clear in Canberra.
Linux Australia is funding a flying visit to Australia by US constitutional lawyer and intellectual property guru Lawrence Lessig, who will make an 11th-hour appearance before the Senate committee considering the matter.
Professor Lessig is an outspoken critic of the US system of patents, of copyright extension, and of the Digital Millennium Copyright Act.
He argues that an FTA that seeks to "harmonise" Australia’s IP laws with those of the US is poor public policy because the US has an inferior system.
Professor Lessig is scheduled to appear before the Senate committee at the end of July.
He is a long-time campaigner for copyright and patent reform in the US, who famously argued against the 1998 Sonny Bono Copyright Term Extension Act in a court challenge that went all the way to the Supreme Court.
He is nothing if not committed to the cause.
Such is his schedule, Professor Lessig will fly from the Law Faculty at Stamford University in California and spend less than 24 hours in Australia before flying back. In the realm of intellectual property governance, Professor Lessig is a very big hitter.
The open source community wants him to take a very big stick to the IP provisions in Chapter 17 of the FTA.
The strength of Lessig’s voice in the debate is twofold. Firstly, as the author of several best-sellers on the impact of new technologies, he enjoys a high profile in elite, policy-making circles.
Secondly, his background in constitutional law - where he helped draft legal frameworks for fledgling democracies across eastern Europe - has earned a reputation that means both sides of politics listen to him.
"He’s acceptable to many in the US, so I thought it would be a good idea to get him to talk to some Australian politicians, who really haven’t twigged to just how much these changes to IP law are going to cost," said corporate IT consultant Dan Shearer, an active participant in the open source community.
Professor Lessig will address the full range of hot-button issues in the FTA’s Chapter 17
IP provisions. Specifically, he will point to a review in the US that is may change part of the US Digital Copyright Millennium Act.
He argues it is illogical to harmonise Australia’s system with the US Act - because the Congressional review of the Act has found it has serious flaws.
"That would mean we’re effectively signing up to something that’s yesterday’s baggage," Mr Shearer said.
Political observers point to the Pharmaceutical Benefits Scheme as the make-or-break issue in the FTA, with intellectual property a close second.
Many in the IT industry are concerned that the Government does not understand how much changes to IP will cost Australia.
So far, the Opposition is hedging its bets, insisting it will not take specific positions on the FTA until the Labor-chaired Senate committee tables its report on August 12.
Labor allowed the enabling legislation to pass the House of Representatives last week, but has not committed to supporting the FTA in the Senate.
Last week, the Coalition-chaired Joint Standing Committee on Treaties tabled a largely supportive report on the FTA, along with a dissenting report from the committee’s Labor members.
However, the Labor-chaired Senate select committee released an interim report with very different conclusions.
The IP-related issues in the FTA are so complex that consultants have arrived at vastly different conclusions.
The Centre for International Economics (CIE) says extending the copyright term from 50 years to 70 years will have a neutral impact, but ANU economics professor Philippa Dee complains the CIE used inappropriate modelling and says a copyright term extension will cost Australia up to $88 million a year and $700 million in the future. Some estimates of the economic impact of the changes to IP regulations are so varied that many observers consider them meaningless.
Shadow IT minister Kate Lundy pointed to the Senate committee interim report on the FTA, criticising the Government for not releasing more detail about the administrative mechanisms behind it.
"One of the things that is clear from the interim report is that there are so many things that we don’t know," Senator Lundy said.
"One of Labor’s biggest criticisms has been that it is so difficult to gauge the FTA’s impact, whether it’s short-term, medium-term or long-term," she said.
Senator Lundy also complained that reports from the US last week suggested the US Congress was planning to amend the FTA before ratifying the document, even though it had been "sold" in Australia as a take-it-or-leave-it deal.
"Why are we getting so tangled up in this take-it-or-leave stuff?" Lundy said.
"We need a better understanding of the economic impact this agreement will have before we can give it proper consideration."