Advance Australia Fair? The Copyright Reform Process

Advance Australia Fair? The Copyright

Reform Process

Catherine Bond, Abi Paramaguru and Graham GreenleafUniversity of New South Wales

Since the start of the millennium, the Australian federal government has engaged in repeated

reforms of the nation’s copyright laws as part of a broader response to the national and

international challenges created by the advent of the internet and the wider digital revolution.

This reform process has at times been both chaotic and confusing. Substantial amendments

enacted in only 2001 to bring Australian copyright law into the digital age were changed

substantially in response to the Australia–United States Free Trade Agreement (AUSFTA)

of 2004. Concurrent to meeting the obligations created by the AUSFTA, the Australian

government also conducted several reviews with a view to introducing new user-based

exceptions to copyright infringement in an attempt to balance Australia’s increasingly

copyright-owner-focused legislation. These changes were enacted as part of the Copyright

Amendment Act 2006 (Cth). However, any benefit that these new exceptions created for

copyright users and consumers has arguably been outweighed by the implementation of

stronger technological protection measures and digital rights management protection and

criminal sanctions that have been accompanied by few exceptions for legitimate use. Now, at

the end of an often rushed and inadequately debated reform process, few parties are

expressing satisfaction with the resulting amendments.

Keywords copyright; reform; freetrade

The digital revolution has made copyright law a contentious issue in many

countries. At the turn of the twenty-first century, Australia had what could be

described from a content-user perspective as a one-sided regime. The Copyright Act

1968 (Cth) contained very limited exceptions for reproducing copyright materials,

and the first few years of the new millennium witnessed a further strengthening of

copyright owners’ rights, with a new communication right and technological

protection measures (TPMs) and digital rights management (DRM) provisions

introduced. The Australia–United States Free Trade Agreement (AUSFTA)1

signed in May 2004 placed further obligations on the Australian federal government

to tighten protection for copyright works. The reforms produced by the AUSFTA

have attracted controversy from many commentators questioning the merit of its

implementation (Senate Select Committee, 2004b, p. 84).

This article discusses the copyright reform process brought about by the

AUSFTA. First, we discuss selected provisions in the Copyright Act before

amendment, in order to illustrate the previous Australian copyright landscape.

Second, we address the AUSFTA process and the final copyright provisions

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included in it. Third, we discuss the provisions proposed by the Copyright Amend-

ment Bill 2006 (Cth) and the criticisms lodged against them that helped shape the

reforms. Fourth, we analyse some of the key provisions included in the Copyright

Amendment Act 2006 (Cth) as passed. Finally, we address additional issues with the

reforms, including their possible impact on the Australian public domain.

Given the sheer breadth of the Copyright Amendment Act and the plethora of

provisions that it introduced, we focus on a number of the changes required under

the AUSFTA, particularly the provisions concerning TPMs and the criminal

liability sections, in addition to the amendments to the user exceptions that

occurred separately to the AUSFTA. While it is not our purpose to undertake a

lengthy critique of these individual provisions, in many cases criticisms of the initial

drafting, and government responses to them, shaped the outcome of the Copyright

Amendment Act 2006. Therefore, where necessary, details of the provisions and the

criticisms of these sections will be discussed. Further, it is the aim of this article to

describe the resulting changes under the AUSFTA and the copyright reform process

in Australia rather than undertake any significant analysis of these amendments. A

full analysis will appear in a later article on these issues.

The reform process, as we discuss in this article, is interesting for a number of

reasons. First, from an Australian perspective, it signals a significant shift from the

laws of the United Kingdom influencing Australian legislation to the laws of

another jurisdiction, the United States, taking this place. Second, the overall reform

process—from negotiating the details of the free trade agreement, to how the

Australian government implemented its obligations—is also interesting as it has

become apparent that the United States will only continue to seek to enter into free

trade agreements—possibly both bilateral and multilateral—with other nations.

The surge in bilateral free trade agreements with numerous countries including

Singapore, Chile and Oman entering into similar agreements over the past 5 years is

testimony to such a proposition. In terms of intellectual property and copyright law,

the pre-AUSFTA system was not lacking in its strength of protection for copyright

owners and their rights. However, Australia was forced to make many national

sacrifices in accepting the agreed intellectual property chapter as part of the

AUSFTA. For countries that commence negotiations in the future to enter into

a free trade agreement with the United States, the lessons from the Australian

process may shape how these countries address their own intellectual property

systems and any changes required under such an agreement. It should also be

noted that, even after the AUSFTA had been signed and the relevant obligations

were being adopted, the Howard government faced significant dissent on the part

of commentators, user groups, academics and politicians. No national govern-

ment should expect that their country will willingly accept all obligations imposed

upon it under a free trade agreement and the Australian experience provides

an interesting example of this overall process, given the public criticism that

accompanied its introduction. The broader copyright reform process in Australia

is also indicative of this.

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The Copyright Reform Process Catherine Bond, Abi Paramaguru and Graham Greenleaf

The Digital Agenda Reforms

Before the commencement of AUSFTA negotiations in 2003, the Australian

government had only recently amended the Copyright Act with the implementation

of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) (the Digital Agenda

Act) in March 2001. The Digital Agenda Act came into effect as ‘‘part of the

government’s strategic framework for the development of the information economy

in Australia’’.2 These reforms claimed to ‘‘align’’ Australian copyright legislation

with the World Intellectual Property Organization (WIPO) Copyright Treaty and

the WIPO Performances and Phonograms Treaty.3 It has been suggested that, while

the Digital Agenda Act purported to implement a balance between the rights of

copyright owners and copyright users, it instead masked a shift in the balance

towards copyright owners (McLean and Flahvin, 2001).

The most radical provisions in the 2001 amendments were those that provided

legal protection against circumvention of TPMs. The amendments drew substantially

on the then-proposed ECDirective4 (Greenleaf, 2002) as well as the WIPO Copyright

Treaty. A new section 116A applied when a work was protected by a TPM,

prohibiting, among other things, the making, selling, distributing and importing of

devices that circumvented a TPM.5 The section did not prohibit the actual use of

circumvention devices (Greenleaf, 2002; Lim, 2002, p. 425), only making or commer-

cially dealing with such devices. This approach was adopted because the government

‘‘saw the most significant threat to copyright owners’ rights as lying in preparatory

acts for circumvention’’ (Phillips Fox, 2004, p. 54). This approach differed from that

adopted in the United States Digital Millennium Copyright Act (DMCA), where

individuals could be held liable for circumvention (HRSCLCA, 2006, [2.68]–[2.69]).

Definitions of ‘‘circumvention device’’ and ‘‘technological protection measure’’

were included. Section 10(1) of the Copyright Act was amended to define a

circumvention device as a ‘‘‘‘device’’ (including a computer program) having only

a limited commercially significant purpose or use, or no such purpose or use, other

than the circumvention, or facilitating the circumvention, of an effective technolo-

gical protection measure’’. Further, a ‘‘technological protection measure’’ was

defined to mean a ‘‘device or product, or a component incorporated into a process,

that is designed, in the ordinary course of its operation, to prevent or inhibit the

infringement of copyright in a work or other subject-matter’’ either through access

protection or ‘‘a copy control mechanism’’.

The circumvention provisions were subject to various ‘‘permitted purposes’’,

which included the creation of interoperable products, library copying and statu-

tory licences for the purposes of education (McLean and Flahvin, 2001). However,

these permitted purposes did not include provisions allowing fair dealing, raising

questions concerning the utility of fair dealing rights where there is no reciprocal

right of access to a work (McLean and Flahvin, 2001).

The TPM provisions were subject to other criticisms, including the lack of

sufficient connection between the concept of circumvention and infringement

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The Copyright Reform ProcessCatherine Bond, Abi Paramaguru and Graham Greenleaf

of copyright, how the scope of devices covered had become broad and ill-

defined between the Digital Agenda Bill 1999 and the Digital Agenda Act, the

difficulty of interpreting the exception for devices with other commercially sig-

nificant purposes and the implications of both the TPM and rights management

information provisions for privacy in the absence of a ‘‘privacy defence’’ such as in

the DMCA (Greenleaf, 2002; see Kerr, Maurushat and Tacit, 2002 for other

criticisms).

By 2005, the Australian circumvention provisions had been analysed by the

High Court of Australia in Stevens v Kabushiki Kaisha Sony Computer Entertain-

ment (Sony).6 Defendant Eddie Stevens, a technician for computer game-playing

devices and their games, was sued by Sony under section 116A of the Copyright Act

(Fitzgerald, 2005, pp. 86–7) and other provisions not relevant here. Sony alleged

that Stevens sold and supplied ‘‘mod chips’’, which they claimed constituted a

circumvention device under the TPM provisions (Fitzgerald, 2005, p. 86). Sony

further claimed that its regional access coding (RAC), which limited the games that

could be played on certain PlayStations, was a TPM and that the mod chips were

‘‘alleged to have the purpose of circumventing RAC’’ (Fitzgerald, 2005, pp. 86–7).

Each CD-ROM containing PlayStation software contained:

An access code (an encrypted string of characters) created by burning

the access code on the CD-ROM as a sector of data that cannot be

copied by conventional copying devices. The string must be read by the

Boot ROM located within a PlayStation console and recognised as the

appropriate access code for that particular game. Access codes are also

different for different areas of the world, so that consoles sold in

Australia require an access code for a particular game sold in

Australia which is different from the access code required for the

same game as sold in the United States. The access code therefore has

two functions, ensuring that both unauthorised copies of games

(without any access code) and games purchased in another region

(with a different region’s access code) will not play on consoles. The

defendant sold ‘‘mod chips’’ or ‘‘converter chips’’ which, when installed

in a console, overrode the PlayStation’s operating system to allow the

console to load unauthorised games of either form (Greenleaf, 2003).

At first instance,7 Sackville J found in favour of Stevens (who represented

himself), stating that the RAC could not be protected as a TPM under law ‘‘if the

only way in which they inhibit infringement of copyright in PlayStation games is by

discouraging people from copying these games as a prelude to playing them on

PlayStation consoles’’.8 However, on appeal the Full Federal Court of Australia9

overturned the finding of Sackville J, deciding that the RAC was a TPM and thus

the sale and distribution of the mod chips in question did constitute an infringement

of section 116A (Fitzgerald, 2005, p. 89).



The hearing before the High Court of Australia may be the only time that the

PlayStation game ‘‘Grand Turismo’’ will ever be played there, observed by an

amused bench (Rimmer, 2006). Sony lost the legal contest, however, as the court

overturned the decision of the Full Federal Court, reinstating the reasoning of

Sackville J.10 The six sitting Justices agreed that the device in question was not a

‘‘technological protection measure’’ for the purposes of the anti-circumvention

provisions of the Copyright Act because it did not act to prevent copyright

infringement, but simply inhibited infringement (Rimmer, 2006).

An approach similar to that of Sackville J was also adopted in the Philips Fox

review, a review of the Digital Agenda Act in 2004 commissioned by the Attorney

General’s Department. It even proposed that the definition of what constituted a

‘‘technological protection measure’’ be altered to ensure that the TPM is designed to

prevent and inhibit copyright infringement, rather than merely act as a deterrent

(Phillips Fox, 2004, p. 107). These proposed changes were overtaken by the

amendments that followed the AUSFTA.

In addition to the TPM provisions, the Digital Agenda Act also included

sections relating to ‘‘electronic rights management information’’ (RMI), defined as

‘‘information’’ attached to copyright material identifying the work, its owner or any

conditions of use, or ‘‘numbers or codes’’ representing this information in electronic

form. A new section 116B was introduced, preventing the removal and alteration of

RMI. In turn, section 116C prohibited any commercial dealings of works that had

RMI removed or changed without authorization.

Enforcement provisions were also introduced for these new digitally tailored

TPM and RMI provisions. Section 116D implemented civil remedies for breaches of

sections 116A, 116B and 116C. According to the Revised Explanatory Memor-

andum, section 116D was drafted with a view to providing copyright owners and

licencees with an ‘‘effective means of enforcing their rights in the online environ-

ment whilst simultaneously allowing for the operation of some exceptions to the

exclusive rights of copyright owners’’.11

Section 132(5A) also introduced criminal provisions relating to circumvention

devices and RMI. This section was considered in the Sony case, where, as Rimmer

noted, the High Court ‘‘expressed wariness about the growing criminalization of

copyright law’’ (Rimmer, 2006). As we discuss later, the proposed inclusion of strict

liability offences in the Copyright Amendment Bill indicated that the federal

government did not share such reservations.

The Digital Agenda Act incorporated other significant reforms, including the

introduction of rights relating to communicating and ‘‘making available’’ works, and

various provisions relevant to reproductions of works, but these have not been changed

by the more recent reforms following the AUSFTA, and so are not discussed here.

The Digital Agenda Act reforms left untouched a number of areas of copyright

law that were to become an important part of later legislative changes, including the

length of copyright protection and the limited ‘‘fair dealing’’ exceptions. The

‘‘digital agenda’’ had not been exhausted.



The copyright term in Australia had remained little changed since 1968.

Pursuant to section 33(2), copyright subsisted in literary, dramatic or musical

works for the life of the author plus 50 years, as required by the Berne Convention.

This period differed from the current term offered by the United States and Europe,

but was consistent with other Commonwealth countries, including New Zealand

and Canada. Since the change in length by both the European Union and the

United States, extending the copyright term a further 20 years, the copyright term

had become a contentious issue. In Australia, a report released by the Intellectual

Property and Competition Review Committee in 2000 concluded that there was no

evidence justifying the extension of the copyright term and recommended no change

(IPCRC, 2000, p. 84). In its response to this review, the government agreed, but

lobbying for a lengthier period in Australia continued. The Allens Consulting

Group was commissioned by the Motion Picture Association,12 supported by the

Australasian Performing Rights Association (APRA), Copyright Agency Limited

(CAL) and Screenrights, to investigate the advantages and disadvantages of a term

extension and recommended that Australia enact a longer term (Allens Consulting

Group, 2003, p. 40).

The fair dealing exceptions were somewhat different from their equivalents in

many other countries. The Copyright Act contained four fair dealing exceptions,

permitting fair dealing for research or study (sections 40 and 103C); criticism or

review (sections 41 and 103A); reporting of news (sections 42 and 103B); and fair

dealing for the purposes of judicial proceedings or giving professional legal advice

(sections 43 and 104). These sections were very narrowly drafted and not nearly as

permissive as equivalent provisions in the copyright legislation in many other

countries.13

As a result of judicial interpretation, the fair dealing exceptions had also been

further narrowed in scope (CLRC, 2002, [3.27]). These developments led one

copyright scholar to note that ‘‘fixing the holes in fair dealing law is clearly a

matter outside the functions of the courts’’ (de Zwart, 2005, p. 256). While the

Digital Agenda Act aimed to extend fair dealing in Australia by introducing several

new exceptions to the exclusive rights of the copyright owner (IPCRC, 2000, p. 86),

the existing limited exceptions accounted for the majority of public rights to use

copyright materials. It should be noted that recording a television programme to

view at a later time (‘‘time-shifting’’) and transferring a song to an iPod from a CD

(‘‘format-shifting’’) were still prohibited under Australian copyright law (Attorney-

General’s Department, 2005, pp. 25–7). Australian copyright law has never con-

tained an equivalent to the general US ‘‘fair use’’ exception.

The copyright landscape preceding the AUSFTA involved protection of TPMs

and RMI that had been limited by the courts, a shorter term of copyright protection

and narrowly defined fair dealing exceptions. The copyright provisions discussed

have one feature in common—they have all been changed by Australian legislation

over the previous 3 years as part of further moves to accommodate digital

technologies. The copyright term has since been extended, radical new TPM



provisions introduced and fair dealing expanded (if only slightly). The focus of this

article will now turn to the AUSFTA negotiations, the catalyst for these further

changes.

The Free Trade Agreement Process

Few were surprised when it was announced in late 2002 that the United States and

Australia were finally entering into a bilateral trade agreement. The possibility of

such an agreement had been examined and deferred numerous times since the early

1980s (Garnaut, 2002, p. 123).14

A few years later, in 1992, President George Bush (Snr) launched a campaign

theme entitled ‘‘Agenda for American Renewal’’, with the aim of this campaign

being to demonstrate that the future of America was dependent upon free trade

agreements with countries including Australia (Hywood, 2003). This theme was the

initiative of ‘‘free trade guru’’ Robert Zoellick, who ‘‘was convinced that an array of

bilateral agreements was the best way to lock in progress on the multilateral front’’

(Hywood, 2003). Zoellick was to play an integral part in the evolution of the

AUSFTA. Rumours of a free trade agreement with the United States finally

appeared to be warranted when, in March 2001, Zoellick indicated that the United

States was interested in negotiating a trade agreement with Australia (Centenera,

2001). By September 2002, the United States finally ended speculation and officially

committed itself to negotiating such an agreement (Beach, 2002). One month later,

on 14 November 2002, a formal announcement was made (Hartcher, 2002).

The key Australian objectives for the proposed free trade agreement included

the improvement of Australia’s competitive position in the United States, improved

market access to the United States and stimulation of economic growth (DFAT,

2003, p. 37). These objectives may not be the same as those in a context of

multilateral treaty making.

When the Agreement on Trade Related Aspects of Intellectual Property Rights

(TRIPS) was being negotiated between 1986 and 1993, ‘‘there were suggestions that

if developing countries agreed to TRIPS, the United States would ease off

negotiating intellectual standards bilaterally’’ (Drahos, 2003, p. 6). However,

bilateral trade activity of the United States may have actually increased over the

1990s (Drahos, 2003, p. 7). Mercurio explains that ‘‘when the US is unable to gain

concessions through multilateral negotiations due to, among other reasons, con-

sensus-decision making, it simply shifts the parameters and sidesteps multilateral

impediments (and the ‘‘won’t do’’ countries) through bilateral/regional trade

agreements with those ‘‘can do’’ countries willing to make concessions in order to

secure a potentially lucrative agreement to many, the most important market in the

world’’ (Mercurio, 2006, p. 220). ‘‘Forum shifting’’ between multilateral and

bilateral forums (Drahos and Braithwaite, 2002, pp. 112 and 195) has led to what

Drahos describes as a ‘‘global regulatory ratchet for intellectual property’’. By

negotiating this free trade agreement, Australia was set to become one of several



regional examples of the introduction of intellectual property standards closely

resembling that of the United States (Drahos, 2003, pp. 7–9). The relevant United

States standards are primarily those found in the DMCA.

Throughout 2003 and the beginning of 2004, five rounds of formal negotiations

took place (JSCOT, 2004, p. 1). On 8 February 2004, both Zoellick and the

Australian Minister for Trade, Mark Vaile, announced that the negotiations had

been completed (Senate Select Committee, 2004b, p. 1). There was understandable

caution surrounding the agreement in the course of negotiations, especially with

regard to intellectual property. Zoellick believed that the Digital Agenda Act

implemented inadequate copyright protection in the electronic sphere and the

recent amendments were insufficient to comply with Australia’s obligations under

international treaties (Rimmer, 2006). The United States thus pushed for broader

protection of TPMs and RMI in addition to a copyright term extension, plus

stronger enforcement of copyright protection (Rimmer, 2006).

In Australia, many were opposed to such changes, with users and innovators

arguing against the implementation of DMCA-style provisions (Riley, 2004).

Commentators noted that one of the most problematic aspects of the potential

implementation was the fact that Australia planned to import only selective features

of the DMCA (Rimmer, 2006). This possibility re-opened debate about existing

provisions, as well as possible AUSFTA-inspired changes. As we show below, to a

large extent these criticisms appear to have fallen on deaf ears.

There was concern about exploitation of copyright for the purpose of ‘‘market

advantage’’ (Senate Select Committee, 2004b, p. 84) through region coding to

achieve geographic market segmentation of DVDs and other electronic products,

which would result in considerable disadvantage to Australian consumers. Further,

such exploitation would weaken Australia’s policies, favouring competition exem-

plified by Australian legislation permitting parallel importation (Senate Select

Committee, 2004b, p. 85). This would also, in effect, nullify the result of the High

Court’s decision in Sony v Stevens. However, when the TPM provisions were

introduced as part of the Copyright Amendment Bill, it became clear that the

Australian government did not intend to allow region coding and expressly sought

to exclude it from the scope of the new TPM sections.

The US demand for copyright term extension also triggered substantial debate.

Given that Australia is and is likely to remain a net importer of intellectual

property, term extension would arguably come at a cost to the Australian economy.

Some local commentators argued that there was evidence supporting the view that

the Copyright Term Extension Act 1998 (US) should not be followed in Australia

(Rimmer, 2004, p. 12). The Centre for International Economics released a report

finding that the economic impact of term extension would be minimal (CIE, 2004,

p. 39), although this finding has been criticized (Rimmer, 2006). The fact that the

United States had a ‘‘disproportionately high share of IP rights’’ was considered by

a Senate Committee (Senate Select Committee, 2004b, [3.20]) to indicate that a

copyright term extension would inevitably be included in AUSFTA. Australia



eventually conceded on copyright term despite earlier assurances, and evidence

published by a number of parliamentary committees investigating AUSFTA

provisions (Davis, 2003).

Suggestions that the implementation of a free trade agreement was necessary to

harmonize Australia’s intellectual property law with international standards were

queried by some commentators, who argued that only ‘‘selective harmonization’’

was being proposed (Rimmer, 2006). They noted that the Australian copyright

regime has a number of inherently different characteristics that were not being

addressed as part of the AUSFTA, including a different standard of ‘‘originality’’

for the purposes of subsistence of copyright, and the limited ‘‘fair dealing’’

exceptions rather than the broad US-style ‘‘fair use’’ exception (Senate Select

Committee, 2004a, p. 26). Neither issue was addressed in AUSFTA.15 Furthermore,

‘‘harmonization’’ would not be achieved with some of Australia’s Asian neighbours

and close trading partners, who provide copyright protection for the life of the

author plus 50 years (Davis, 2004).

On 18 May 2004, the free trade agreement was formally signed in Washington

by Zoellick and Vaile (Manwaring, 2005, p. 61), but would only come into effect

after Australia and the United States completed any domestic approval process that

was required, passed any enabling legislation and agreed on a date of commence-

ment (JSCOT, 2004, p. 27). The AUSFTA had been tabled in the Australian

parliament on 8 March, although not put to a vote (JSCOT, 2004, p. 1).

A number of inquiries took place after the agreement was signed to assist in the

process of implementation. The Joint Standing Committee on Treaties’ Inquiry into

the Free Trade Agreement Between Australia and the US tabled its final report on

23 June 2004, shortly after the agreement had been signed. The purpose of the

Committee was to review treaty actions proposed by the government, and to ensure

that such actions were in the national interest (JSCOT, 2004, p. 2). The inquiry

received an unprecedented number of submissions (JSCOT, 2004, p. 2). The report

expressed concerns with the intellectual property chapter (JSCOT, 2004, p. 240).

One recommendation urged the government to adopt a fair-use-style provision,

echoing criticisms that the AUSFTA imported problematic aspects of US copyright

law (from a user’s perspective) without corresponding ‘‘balancing’’ aspects such

as the doctrine of fair use. This has been described as a ‘‘notable omission’’

(Rimmer, 2006).

The Senate Select Committee on the Free Trade Agreement between Australia

and the USA also conducted a review into the implementing legislation, tabling its

final report in August 2004. While the report ultimately recommended the enact-

ment of implementing legislation, it noted a number of concerns regarding the

intellectual property chapter, and recommended several amendments (Senate Select

Committee, 2004b). The report also criticized the negotiation and reform process

for its lack of transparency, and particularly the fact that parliament was not given

an opportunity to review the AUSFTA until after it was signed (Senate Select

Committee, 2004b, p. xviii):



This after-the-fact involvement of the parliament not only impedes

sound public policy and law-making. It denies the parliament an

opportunity to inform itself, and to guide public opinion, about the

complex considerations at play. It encourages an adversarial approach

to the Agreement rather than an analytical approach. The national

interest is splintered, wedged and variously assaulted as the Agreement’s

nits are picked, and important complex issues are given short shrift

(Senate Select Committee, 2004b, [2.3]).

The review also claimed that state and territory governments played an

‘‘insufficient’’ role in the negotiation process. Coupled with concerns that corporate

interests dominated the process at the price of other interest groups (Rimmer, 2006),

and other issues with the consultation process generally,16 this Senate disquiet raises

questions about the adequacy of the reform process.

The US Congress assented to the AUSFTA by passing the United States–Aus-

tralia Free Trade Implementation Act on 3 August 2004.17

The Australian government required the support of the Labour Opposition or

minor parties in the Senate to implement the general enabling legislation for the

agreement. Labour was under pressure from the government to pass the implement-

ing legislation but were waiting for the release of the Senate Committee’s final

report, above (ABC, 2004). During this period, the federal government grew

increasingly impatient (Shanahan, 2004, p. 11). Prime Minister Howard accused

then opposition leader Mark Latham of ‘‘poor leadership’’ and a ‘‘disregard of the

Australian national interest’’ (Fabro, 2004, p. 19). On 13 August 2004, the

legislation was passed after the government agreed to two Labour amendments:

about media local content rules and the ‘‘evergreening’’ of pharmaceutical drug

patents (Rimmer, 2006). The minor parties such as the Australian Democrats did

not support the implementing legislation, considering the agreement unfair for

Australia (ABC, 2004).

Despite objections throughout the reform process, the Australian government

accepted the copyright provisions proposed for the AUSFTA. The decision to

concede on these intellectual property issues appeared to be unrelated to copyright,

according to a Canadian commentator:

Developed countries such as Australia may recognise the importance

of a balanced copyright policy to both their cultural and economic

policies, but they are increasingly willing to treat intellectual property

as little more than a bargaining chip as part of broader negotia-

tion. Since most trade deals are judged by an analysis of the bottom-

line, economic benefits that result from the agreement, and since

quantifying the negative impact of excessive copyright controls is

difficult, the policy implications of including copyright within trade

agreements is often dismissed as inconsequential (Geist, 2003, p. 2; see

Willis, 2003, p. 55).



With such a statement in mind, we will now turn to the copyright provisions

contained in the final agreement, before considering their implementation in

Australian law as part of the copyright reform process.

The Final AUSFTA and the Copyright Provisions

Copyright was not the only intellectual property regime changed by Chapter 17 of

the AUSFTA, the intellectual property section, which also covered trademarks

(plus domain names), patents and designs. It has been described as notable for ‘‘its

sheer complexity: at 29 closely typed pages . . . breathtakingly long, detailed and

opaque’’ (Weatherall, 2004/2005, p. 19), and by a parliamentary committee as the

largest part of the AUSFTA, ‘‘in both ‘context and substance’’’ (Manwaring, 2005,

p. 60).18 Weatherall concludes that it represents ‘‘a decisive—and unfortunate—

move in Australian IP policy’’ (Weatherall, 2004/2005, p. 18).

The majority of the copyright provisions of the agreement are contained in

article 17.4. Article 17.4.4 requires ‘‘each party’’ to provide a certain length of

protection for copyright works, performances and phonograms. For a ‘‘natural

person’’, a term no less than the life of the author plus 70 years is required.19 Where

the term was not calculated on the life of a ‘‘natural person’’, it must be 70 years

from the end of the year of first publication, or if the work has not been published

within 50 years of first creation, then the term of protection was to be 70 years from

first creation.20

Article 17.4.7 obliges both parties to implement provisions concerning TPMs.

The provisions were already law in the United States under the Digital Millennium

Copyright Act, and so the effect was that Australia was obliged to move to DMCA-

like provisions (Weatherall, 2004/2005, p. 23). Given the criticism of aspects of the

DMCA that emerged in both Australia and the United States, it is not surprising

that few Australian copyright commentators were enthusiastic about the prospect

of introducing these contentious provisions. Industry groups, however, were

pleased by the change, with CAL, in its submission to the Senate Select Committee,

supporting the changes on the basis that these provisions would provide a greater

incentive for content creators to work with digital technology (Fraser, 2004,

pp. 8–9).

Article 17.4.7(a) sets out the types of actions that would incur liability under the

new TPM provisions. Article 17.4.7(a)(i) provided that any party who ‘‘knowingly,

or having reasonable grounds to know, circumvents without authority any effective

technological measure that controls access to a protected work, performance, or

phonogram, or other subject matter’’ would be liable for civil and criminal penalties

in a number of cases.21 This provision would catch individuals who circumvent an

effective TPM, which was not previously the case in Australian law.

Article 17.4.7(a)(ii) dealt more broadly with the manufacture, importation and

distribution of devices or services that were promoted or advertised for the purpose

of circumventing an effective TPM, provided this device or service had limited



commercial significance beyond the use for circumvention, or was primarily

designed or produced for the purpose of enabling or facilitating the circumvention

of an effective TPM.22

The term ‘‘effective technological protection measure’’ was defined in section

17.4.7(b) to mean ‘‘any technology, device, or component that, in the normal course

of its operation, controls access to a protected work, performance, phonogram, or

protected subject matter, or protects any copyright’’.

Article 17.4.7(e) sets out the types of exceptions that would be permitted.

Similar to those contained in the DMCA, such exceptions allowed for reverse

engineering; encryption research; restricting minors from accessing inappropriate

content; non-infringing ‘‘good faith activities’’ authorized by the owner of a

computer, system or network; privacy; national security; and libraries, archives

or educational institutions for the ‘‘sole purpose of making acquisition decisions’’.23

However, the AUSFTA did contain one more provision on exceptions. It allowed

exceptions to be created for ‘‘non-infringing uses’’ of copyright material ‘‘when an

actual or likely adverse impact’’ of those uses ‘‘is credibly demonstrated in a

legislative or administrative review or proceeding’’,24 such proceedings to occur at

least once every 4 years. This created some leeway for Australia to introduce

AUSFTA-compliant provisions not based on those contained in the DMCA

(Weatherall, 2004/2005, p. 24).

The AUSFTA also included new provisions on ‘‘rights management informa-

tion’’, although these provisions attracted less attention than the TPM sections or

copyright term extension. ‘‘Rights management information’’ was defined to mean

electronic information identifying the work, its author, producer or owner; terms

and conditions of use of the material; or electronic numbers or codes representing

such information when it was attached to the copyright material or appeared in

connection with it.25

Article 17.4.10 obliged Australia and the United States, in relation to the

copyright provisions contained in articles 17.4, 17.5 and 17.6, to limit any excep-

tions to the exclusive rights of the owner ‘‘to certain special cases that do not

conflict with the normal expectation of the work, performance or phonogram . . .

[and do not] unreasonably prejudice the legitimate interests of the rights holder’’.

This language directly echoes the ‘‘three-step test’’ for exceptions in article 9(2) of

the Berne Convention, article 13 of the TRIPS and article 10 of the WIPO

Copyright Treaty (Gervais, 2005; Ginsburg, 2001; Ricketson, 2002). When the

provision to meet this obligation was introduced under the Copyright Amendment

Bill, the Australian government chose to use this exact wording, rather than develop

exceptions based on this language. As a result, it is a shame that the Attorney

General’s Department did not go further to address how this could be introduced

into and interpreted under Australia’s unique copyright law, rather than just merely

accepting this obligation as it was. However, the reluctance of the Attorney

General’s Department to introduce any new language was arguably based on the

fact that implementing the three-step test will mean that the Australian government



cannot be accused of any breach of treaty obligations, and the burden of

interpretation will fall on the Australian judiciary. In that sense, implementing

the test as it appeared in the AUSFTA appeared to be more politically sound than

developing any different expression of the obligation.

Upon signing the final agreement and following the consultation process

discussed above, the Australian government moved to implement amendments that

met its copyright obligations. The copyright term extension was included in the US

Free Trade Agreement Implementation Act 2004 (Cth), which came into effect on

1 January 2005 (Dakin, 2005, p. 47).

The copyright term extension did not revive copyright in any unprotected

materials or apply retrospectively, but applies only to materials still protected by

copyright at 1 January 2005 or those created after that time (Dakin, 2005, p. 46).

While the term extension applies to most works, it does not apply to works

protected under the Crown copyright provisions contained in Part VII of the

Copyright Act, or to published editions (Dakin, 2005, p. 47).

The agreement itself also came into force on 1 January 2005. The government

initiated a number of amendments based on the AUSFTA in the Copyright

Amendment Act 2004 (Cth) and Copyright Amendment Regulations 2004 (No

1), although these will not be discussed here. The Australian federal government,

however, delayed enacting the TPM provisions. Under the AUSFTA, it was given

until 1 January 2007 to introduce the required amendments to the Copyright Act

(Attorney-General’s Department, 2006).

With a view to enacting these amendments, the Attorney General instructed the

Federal House of Representatives Legal and Constitutional Affairs (LACA)

Committee to undertake an inquiry into possible TPM exceptions—including

permissive provisions for libraries, educational institutions, region coding and open

source software developers (HRSCLCA, 2006, p. xiii.) The Committee had been

considering the issue for several months when the High Court of Australia handed

down its decision in Stevens v Kabushiki Kaisha Sony Computer Entertainment

(Sony) in October 2005 (Rimmer, 2006). Six months later, in March 2006, the

House of Representatives LACA Committee released its final report making a total

of 37 recommendations on possible exceptions (HRSCLCA, 2006, pp. xvii–xxv). It

would only be a few more months before the Australian public saw how the

government proposed to implement the new TPM provisions.

From Draft to Bill to Act by Christmas

These changes signify one of the biggest overhauls of copyright law that

we have seen for many years. Unfortunately, much of the change has

also heralded quite unworkable complexity and, in some instances, quite

bizarre consequences.

(The Hon. Nicola Roxon, MP)26



The Australian federal government benefits from the fact that, since 2004, it holds

the majority of seats in both the Senate and the House of Representatives, and so it

was therefore likely to experience few difficulties in obtaining passage of the

Copyright Amendment Bill. However, it probably did not expect vocal opposition

from both user rights advocates and industry groups, and this eventually had an

impact on the amendments. In this section, we discuss these developments before

addressing a number of the specific provisions.

Before introducing the Bill as a whole into parliament, the Attorney General’s

Department issued several exposure drafts (see Attorney General’s Department

(2006), Copyright Amendment Bill). The department only called for public submis-

sions on the exposure draft concerning the TPM provisions, and then amalgamated

its (revised) provisions into the Copyright Amendment Bill shortly after it intro-

duced the Bill into parliament. In addition to submissions on the exposure draft, the

Attorney General’s Department also sought public recommendations on possible

further exceptions to the TPM provisions, and public comments on the Copyright

Amendment Regulations (TPM) 2006, which contained additional exceptions.

A number of other exposure drafts of provisions outside Australia’s AUSFTA

obligations were released. One was the Copyright Amendment (Enforcement

Provisions) Bill 2006 exposure draft containing a number of strict liability,

indictable and summary offences for various acts of copyright infringement.

According to the Explanatory Memorandum, these strict liability provisions were

aimed at giving ‘‘police and prosecutors . . . a wider range of penalty options to

pursue against suspected offenders depending on the seriousness of the conduct’’.27

However, their inclusion confused many involved in the reform process. A Senate

Committee had difficulty ascertaining why these changes were proposed.28 They

were not required by the AUSFTA, and many other countries, including the United

States and the United Kingdom, do not have strict liability offences for copyright

infringement (SSCLCA, 2006, [3.16]).

Another exposure draft drew even more attention from user advocacy and

industry groups: the Copyright Amendment (Exceptions and Other Digital Review

Measures) Bill 2006, which included a number of new copyright provisions. The

proposed section 111, then-titled ‘‘Recording broadcasts for replaying at a more

convenient time’’ and sections 43C, 47J, 109A and 110AA, which collectively

comprised the new ‘‘format-shifting’’ provisions, were introduced following the

report of a government-appointed review, Fair Use and Other Copyright Excep-

tions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the

Digital Age (Fair Use), which commenced in May 2005. This review was part of an

election promise made by the government in 2004 (Costelloe, 2005, p. 16). The Fair

Use review was lauded by the government as being a major step for user rights, with

its aim being to address whether Australia should introduce a broad, US-style fair

use provision, or whether specific exceptions for a number of ‘‘common consumer

practices’’29 should be introduced. These ‘‘common consumer practices’’ included

videotaping shows off the television for later viewing and copying a song from a CD



onto an Apple iPod, both of which still technically constituted an infringement of

copyright under Australian law (Costelloe, 2005, p. 16.)

By early 2006, it became apparent that a broad ‘‘fair use’’ provision was not

consistent with the government’s position on copyright law, and the Attorney

General announced that a number of new but specific exceptions would be

introduced. These were included in the Copyright Amendment Bill. Arguably, the

most important were section 111, the ‘‘time-shifting’’ provision introduced to cover

television recordings, and section 109A, which would permit the copying of music

for personal use. The Attorney General’s Department did not seek public submis-

sions on this exposure draft. If the Attorney General’s Department had sought

public submissions on these particular provisions, many of the issues that were

eventually identified would have been resolved before their inclusion in the Copy-

right Amendment Bill and its introduction into parliament. The Attorney General

himself admitted, in his speech introducing the bill into the House of Representa-

tives, that there were particular issues with the musical format-shifting section that

were currently being addressed.30 Seeking public consultation on the provisions

before their introduction to parliament would have saved the government and the

Attorney General’s Department from significant criticism.

The Copyright Amendment Bill was introduced into parliament on 19 October

2006, and immediately referred to the Senate Standing Committee on LACA for

review. The Committee made a call for public submissions by 30 October, and

scheduled a public hearing on 7 November. Its report was required by the Senate by

13 November. The time allowed for preparation of public submissions, hearings,

consideration of submissions and preparation of a report to the Senate was slightly

over 3 weeks, and this may have exacerbated the problems inherent in the Bill. This

limited period for review and discussion was because the government had to enact

the TPM provisions by 1 January 2007, or else risk breaching the AUSFTA.

However, there were calls, both inside and outside parliament, for the bulk of

the legislation—any provision that did not have to be passed by 1 January 2007—to

be carried over into the New Year for further debate.31 The government disagreed,

preferring to pass ‘‘one major copyright reform bill and get it all through this

year’’.32 This haste was despite the number of other copyright issues that awaited

legislation.

The Committee received over 70 submissions on the Bill,33 and despite the

limited time available, its report identified a number of problems with the Bill, and

made sixteen recommendations. The fact that the proposed ‘‘format-shifting’’

exception did not cover the legitimate use of devices such as the Apple iPod, or

that under the proposed ‘‘time-shifting’’ exception a television programme could

not be taped at premises that were not a home, were particularly perplexing to the

Committee, and recommendations were made on both these issues. Several Com-

mittee members required clarification of current laws regarding ownership of

copyright, and owning a compact disc featuring copyrighted music,34 illustrating

that even they had difficulties comprehending existing copyright law and the



proposed amendments. Their recommendations also recognized the serious impli-

cations for consumers arising from the strict liability provisions, and dangers in

limiting the scope of the ‘‘research and study’’ fair dealing provision. The TPM

provisions were also subject to several recommendations.

As 2006 drew to a close, opposition to the Bill continued to grow. The length

and complexity of both the Bill and individual provisions were of concern to both

commentators and parliamentarians. A Bill to amend an already complex Copy-

right Act was never going to be brief or simple, but at 220 pages, plus a 250-page

Explanatory Memorandum, this Bill was subject to particular criticism. It was

ironic that, less than a decade earlier, there was a Copyright Law Review

Committee inquiry into simplification of the Copyright Act (CLRC, 1998; CLRC,

1999). Duncan Kerr, MP, argued that ‘‘this legislation will do nothing to improve

the clarity, the ease of access or the capacity to understand copyright legislation . . .

[It is now] impossible to understand, dense and impenetrable’’.35 Academics

considered that the new exceptions would ‘‘not be easily understood by anyone

other than copyright lawyers’’ (Fitzgerald, 2006; also Weatherall, 2004/2005, p. 19).

Because the purpose of many amendments was to legalize a number of long-

standing consumer practices that formerly infringed copyright, it seemed perverse

to introduce permissions that users would not understand.

Despite fears that the government would pass the Bill regardless, changes were

made during its passage as the government adopted some recommendations of the

Senate LACA Committee. Labour and Australian Democrat Senators also pro-

posed amendments, but these predictably failed. December had almost arrived, time

for parliamentary business was running out and the Bill passed the senate on 30

November 2006. Everyone could adjourn for Christmas drinks.

Despite the plethora of non-AUSFTA changes to be made by the Copyright

Amendment Bill, the government did not propose to make any amendments to the

Crown copyright provisions of the Copyright Act, even though in April 2005,

before the government commenced its Fair Use inquiry, the now-defunct Copyright

Law Review Committee (CLRC) had released its final report on these provisions

(CLRC, 2005). Currently, pursuant to certain sections in Part VII of the Copyright

Act, copyright subsists in works produced ‘‘under the direction or control’’ of the

Commonwealth or a state. The CLRC proposed the repeal of a number of Crown-

specific copyright provisions, including the release of primary legal materials into

the public domain (Atkinson, 2005). One month later, the government disbanded

the CLRC, and nearly 2 years later is still to respond to its recommendations.

‘‘Provisions Only A Copyright Lawyer Will Understand’’

In this section, we examine some key amendments in the Copyright Amend-

ment Act, and how criticisms shaped both the reform and their drafting: the

TPM provisions; the new criminal offences; changes to ‘‘fair dealing’’; and new

exceptions.



TPMs

By releasing the exposure draft of the TPM provisions to the public for submissions,

the Attorney General’s Department was able to identify and rectify a number of

issues with these sections before including them in the Copyright Amendment Bill.

These public submissions had an obvious impact on the re-drafting of the provi-

sions, although there is division in the copyright community as to whether the

exposure draft or the Copyright Amendment Bill contained preferable provisions.

In the exposure draft, a two-tier system was created for TPMs, differentiating

two types of TPM. The first, an ‘‘access control technological protection measure’’,

was defined to mean a device, product or computer that is used by or with the

permission of the copyright owner and designed, in the normal course of their

operation, to prevent or inhibit the doing of an act comprised in the copyright that

would infringe the copyright. The access control TPM must prevent those who do

not have the permission of the copyright owner from gaining access to the copyright

material.

The second definition was ‘‘technological protection measure’’, covering de-

vices, products or computer programs used by the copyright owner that were

designed, in the normal course of their operation, to prevent an act comprised in the

copyright and that would infringe copyright. The definition of a TPM was drafted

broadly to include an access control TPM. Unlike both the AUSFTA and the

DMCA, the term ‘‘effective’’ was not included in these definitions, apparently

extending their scope to include measures that did not work.

Civil and criminal provisions were included in the exposure draft for three types

of ‘‘actions in relation to technological protection measures’’. First, sections

116AK(1) and 132APA(1) provided civil and criminal sanctions, respectively, for

circumventing an access control TPM. Second, sections 116AL(1) and 132APB(1)

contained civil and criminal provisions for manufacturing, importing, distributing,

offering, providing or communicating a circumvention device for a TPM to another

person. Third, sections 116AM(1) and 132APC(1) covered the provision of a

circumvention service for a TPM. There were some differences between the wording

of the civil and criminal provisions; for example, under the criminal provisions,

there had to be a commercial aspect to the action.36

For the civil provisions, exceptions were included in certain cases for permis-

sion, interoperability, encryption research, computer security testing, online priv-

acy, law enforcement and national security, libraries, etc. and prescribed acts. The

most exceptions were in relation to section 116AK, regarding circumventing an

access control TPM. More limited exceptions applied for manufacturing, importing

or distributing a circumvention device, and providing a circumvention service.

Under the criminal provisions, a number of defences were included for

permission, interoperability, encryption research, computer security testing, online

privacy, law enforcement and national security, libraries and prescribed acts. Again,

the provision for circumventing an access control TPM, section 132APA, attracted

the widest range of defences. Many user groups argued in submissions that these



exceptions and defences did not go far enough (Cyberspace Law and Policy Centre,

2006; Fitzgerald et al., 2006); industry groups, however, argued the opposite, some

claiming that the exceptions were broader than the AUSFTA (Fraser, 2006).

Public submissions led the Attorney General’s Department to change the TPM

provisions before their inclusion in the Bill. Again, only 3 weeks were allowed for

submissions, and the Bill was introduced into parliament less than a month later.

Most notably, the definitions of ‘‘access control technological protection

measure’’ and ‘‘technological protection measure’’ were altered. An access control

TPM was now defined to include a device, product, technology or component that

is used ‘‘in connection with the exercise of the copyright’’ and ‘‘in the normal course

of its operation, controls access to the work or other subject matter’’. A TPM was

now defined to include a device that ‘‘in the normal course of its operation,

prevents, inhibits, or restricts the doing of an act comprised in the copyright’’.

Opinion was divided as to the benefits of these changes. Fitzgerald argued that

the definition included in the exposure draft preserved the Sony decision, but the

changes meant that ‘‘in three short weeks the Stevens v Sony principle has gone from

pedestal to garbage dump’’ (Fitzgerald, 2006). Other commentators were not so

sure. Weatherall argued that whether the provision would have such a detrimental

effect would depend on a court interpretation of the term ‘‘in connection with the

exercise of the copyright’’ (Weatherall, 2006).

Criminal Offences

The Copyright Amendment Bill contained over 30 ‘‘strict liability’’ offences,

under which a person could be convicted of an offence regardless of intent

(Fitzgerald, 2006), and where the individual genuinely did not know what he or

she was doing was against the law (Moses, 2006a). These proposed strict liability

offences provoked considerable attention from academia, the media and the wider

community.

The strict liability offences were divided into several divisions in schedule 1.

Most referred to commercial dealings, distribution or importation. A number of

offences dealt with making, selling or hiring, offering for sale or hire, importing or

distributing infringing copies of copyright material. It is important to note that such

dealings have always violated Australian law, under a civil regime. However,

section 132AL(9) was an exception: a person committed an offence if they possessed

a device that was to be used for copying copyright material that would, in turn, be

an infringing copy of that material. It did not take long for many to realize that

iPods and CD burners were ‘‘devices’’ that could be caught under this provision and

expose the possessor to criminal liability. The penalty for this offence, as with the

majority of the other proposed strict liability provisions, was 60 penalty units,

approximately $6,600—an enormous price to pay in addition to the purchase of an

iPod (Moses, 2006a).

In addition to these provisions, the Copyright Amendment Bill also included

strict liability offences for dealing with electronic rights management information,



unauthorized recordings of performances and other unauthorized sound record-

ings. The latter provisions gathered attention when the rock group U2 performed a

number of concerts in Australia amid a sea of mobile phones recording the concert

(Murray, 2006). The media quickly noted the fact that, under the Copyright

Amendment Bill, this action could leave a person open to criminal liability and a

hefty fine (Murray, 2006). Newspapers began to note the warnings of Australian

copyright experts that strict liability provisions could expose iPod, VCR or CD

burner owners to considerable fines under the new provisions (Moses, 2006a;

Murray, 2006). The government denied that it intended to use these provisions

on the general community. Senator Santoro, in his Second Reading Speech to the

Copyright Amendment Bill, stated that these new provisions were ‘‘not aimed at

ordinary people, but at copyright pirates who profit at the expense of our

creators’’.37 Unfortunately, the legislation did not make that distinction, leading

to fears that, without additional safeguards, the new offences could be used against

ordinary Australians.

When these provisions began to attract popular attention, consumer advocacy

groups including the consumer association CHOICE and the Internet Industry

Association also became further involved in submissions on the Bill (CHOICE,

2006; Internet Industry Association, 2006). Given this public outcry, a number of

the strict liability provisions were removed from the Bill before it was passed,

although a significant number remain in the Act. Section 132AL(9), the strict

liability offence discussed earlier, was removed.

New Exceptions

Schedule 6 of the Bill titled ‘‘Exceptions to Infringement of Copyright’’ contained

several provisions stemming from the 2005 Fair Use review, plus others. The

problems that many commentators and the Senate LACA Committee identified

with the time-shifting and format-shifting provisions as introduced ultimately acted

as the catalyst for a re-drafting of these sections. Given that Attorney General

Ruddock had repeatedly referred to making iPod use legal in Australia, and taping

TV shows to watch at a later time (see, e.g., Attorney General Mr Philip Ruddock,

‘‘Major Copyright Reforms Strike Balance’’), these sections were redrafted in

accordance with these references. Despite re-drafting, the language is still somewhat

problematic, leading some to suggest again that it may have been preferable to

include a broader ‘‘fair use’’-style provision rather than these ultra-specific indivi-

dual exceptions. Industry groups such as CAL argued to the contrary that the

limited exceptions contained in the Bill were still too broad (Nethercote, 2006).

The Copyright Amendment Act introduced a new definition of ‘‘private

and domestic use’’ to be inserted into section 10(1) of the Copyright Act. ‘‘Private

and domestic use’’ is now defined as ‘‘private and domestic use on or off

domestic premises’’. This definition will impact upon the interpretation of both

the time-shifting and format-shifting exceptions, and will arguably broaden their

application.



Section 111, the new time-shifting provision, was altered in response to

criticisms that recordings could not be made outside an individual’s domestic

premises, or could only be watched at an individual’s main domestic premises.

Section 109A, the musical format-shifting exception, was also redrafted to ensure

that normal iPod and other MP3 player use would be covered.

In addition to these exceptions resulting from the Fair Use review, the

government also introduced a number of other exceptions, and amended section

40, the ‘‘research or study’’ fair dealing provision. Section 200AB introduced four

new exceptions to copyright infringement.

Section 200AB(1) permits certain uses of works where the circumstances of the

use amount to a special case, and the use is covered by one of the proceeding

subsections. Further, the use must also not conflict with a normal exploitation of

the work or other subject matter and, finally, must not ‘‘unreasonably prejudice the

legitimate interests of the owner of copyright or a person licensed by the owner of

the copyright’’.

This drafting adopts both the Berne three-step test and article 17.4.10 of the

AUSFTA, and the difficulties with this language were recognized by Labour Party

Senators during the Senate Committee inquiry into the provisions of the Bill. In a

supplementary report, they argued that ‘‘the particular way the Government has

chosen to embody the three-step test in the bill is problematic . . . not only will

judges be required to interpret the three-step test, but so will users to which the

exceptions apply’’ (SSCLCA, 2006, p. 45).

Under section 200AB, the four cases where infringement would be permitted

were use by a body administering a library or archives; use by a body administering

an educational institution; use by or for a person with a disability; and use for

parody or satire. The inclusion here of the ‘‘parody or satire’’ provision was most

surprising: not only was it not usually associated with the other exceptions included

in the section, many commentators were hoping that the government would

introduce a specific fair-dealing exception for parody and satire. At the end of

the process, however, this is precisely what happened: the parody and satire section

was removed from section 200AB and two new provisions, sections 41A and

103AA, introduced permitting fair dealing for the purposes of parody and satire.

Another fair-dealing provision was also amended. Under the Copyright

Amendment Bill, existing subsections 40(3) and (4) were removed and three new

subsections were introduced in their place. The proposed amendments, however,

had many commentators worrying that what the government was proposing to do

was place ‘‘an absolute 10 percent cap’’ on the fair dealing for research or study

provision—although, given the confusion that arose surrounding the provision, it is

unclear whether this is what was intended.38 According to evidence before the

Senate Committee hearing into the provisions of the Bill, the effect of the provision

would have meant that it was ‘‘impossible to copy 11 pages of a 100-page book’’.39

In its final report, the Senate Committee noted the problems with the drafting of the

provision and the surprise of many commentators that such changes were even



included in the Copyright Amendment Bill (SSCLCA, 2006, [3.8]). However, before

this, representatives from the Attorney General’s Department at the public hearing

of the Committee indicated that the proposed amendments were to be ‘‘clarified’’.40

The proposed subsections 40(3)–(5) were therefore also amended.

Further Issues with the Reform

After the passing of the Act, the Attorney General issued media releases announ-

cing a new age in Australian copyright law.41 The focus of these releases was on the

‘‘gift’’ that the government had given to consumers, and Australia was touted as

‘‘leading the way’’ in copyright reform. In a statement following the release of the

Gower’s Committee report in the United Kingdom, the Attorney General claimed

that the ‘‘British report follows Australia’s lead on copyright’’.42 Some of the

amendments were sugar coated: for example, one press release stated that the new

legislation would ‘‘facilitate the availability of more films, music and software

online with a more up-to-date technological protection measures regime’’.43 The

fact that any individual who circumvents a TPM could expose themselves to civil

and criminal penalties was overlooked, although it is arguably more important that

the government let the public know of this change to the law, rather than that there

might be more films online as a result of it. Perhaps, however, the Sydney Morning

Herald expressed the position more succinctly: ‘‘Backdown on draconian laws’’

(Moses, 2006b).

There are still a number of issues remaining with the amendments. One is the

impact that these changes will have on the Australian public domain and the

broader intellectual commons.

While this article will not go into detail on such issues, it is worth considering

briefly the potential impact that these new provisions may have, for example, on

‘‘orphan works’’, works that are still under copyright but have effectively been

abandoned by their owner. Given that it will often be impossible for a user to

contact the copyright owner to request permission to undertake a particular act in

relation to such a work that has, for instance, gone out of print or is otherwise no

longer available for purchase or licence, the work therefore lies dormant until it

enters the public domain. Unlike both the United Kingdom and United States, who

are seriously considering this issue, and despite submissions raising the issue, the

Australian government is yet to address either the problem of orphan works, or the

possible impact of the Copyright Act on these works.

In its final report on the 2005–2006 TPM inquiry, the House of Representatives

Standing Committee on Legal and Constitutional Affairs (HRSCLCA) noted the

orphan works issue. The Committee correctly stated that the government had

briefly noted the issue in its Fair Use and Other Exceptions Review issues paper,

although, as is now known, the Attorney General’s Department did not make

concrete recommendations on this issue in its final report to the Fair Use inquiry.

Further, the Committee also stated that it ‘‘believes that the use of ‘‘orphaned’’



works such as ‘‘abandonware’’ should not be an infringing use under the Act in the

future’’ (HRSCLCA, 2006, [4.73]) and would support any moves to deal with the

orphan works issue (HRSCLCA, 2006, p. xxi). The issue is therefore now back with

the government. The provisions in the Copyright Amendment Act, particularly the

TPM sections, will only serve to further exacerbate this problem in an Australian

legal context.

Conclusion

While many other countries are still either at the beginning or in the process of

reforming their copyright legislation, the Australian copyright landscape has

undergone a radical transformation over the last few years. The Australia–United

States Free Trade Agreement set in motion a process of reform that, although not

yet widely appreciated, will have significant impacts on the lives of many Austra-

lians. The ramifications of the intellectual property chapter of the AUSFTA will be

felt in Australian copyright practice and jurisprudence for many years to come.

Despite the many reports, hearings and amendments during the reform process,

it appears that few stakeholders would describe the Copyright Amendment Act as a

notable success. While the new time-shifting and format-shifting exceptions signal

the start of Australian law catching up to the digital age, and the introduction of a

fair dealing defence for ‘‘parody and satire’’ indicates that Australia has almost

caught up to the rest of the world, many issues remain unresolved, and although the

reform process was rushed, the federal government and Attorney General’s

Department must be given credit for listening to what was being said about the

Act and incorporating some changes in response. However, Australian Democrats

Senator Bartlett’s description of the result as ‘‘one congealed wobbling blob’’44 of

copyright law is as good as any.

About the Authors

Catherine Bond is a Ph.D. candidate on the ‘‘Unlocking IP’’ project at the University

of New South Wales Faculty of Law; e-mail: [email protected]

Abi Paramaguru is a research assistant on the ‘‘Unlocking IP’’ and ‘‘Interpreting

Privacy Principles’’ projects at the University of New South Wales Faculty of Law;

e-mail: [email protected]

Graham Greenleaf is a Professor of Law at the University of New South Wales,

co-director of the Cyberspace Law and Policy Centre and lead investigator of the

‘‘Unlocking IP’’ project; e-mail: [email protected]

Notes

Research for this article was carried out under an Australian Research Council Linkage

Project, ‘‘Unlocking IP’’, based at the Cyberspace Law and Policy Centre, University of New



South Wales Faculty of Law. We would like to thank Dr Matthew Rimmer, Bryan Mercurio,

David Vaile and Ben Bildstein (all of whom are involved in the ‘‘Unlocking IP’’ Project) and

Professor Nigel Bond for their invaluable comments on earlier drafts of this article. We are

also most gratefully indebted to Alana Maurushat for facilitating this article, her guidance on

its content and structure and its title. Finally, we would like to dedicate this article to the very

young Alexandre Maurushat, who, although he does not yet know about copyright or own an

iPod, will be affected by the provisions discussed above for many years to come.

1 For the text of the AUSFTA, see the website available at hhttp://www.dfat.gov.au/trade/negotiations/us.htmli [Accessed January 2007].

2 Copyright Amendment (Digital Agenda) Bill 1999, Revised Explanatory Memorandum

[online] at p. xv. Available at hhttp://parlinfoweb.aph.gov.au/piweb/Repository/Legis/

oldEms/Linked/03100000.pdfi [Accessed January 2007].

3 Revised Explanatory Memorandum, ibid., at p. 2.

4 Proposed European Commission (EC) Directive on the harmonization of certain aspects

of copyright and related rights in the Information Society—see articles 6 and 7—now

Directive 2001/29/EC.

5 See section 116A of the Copyright Amendment (Digital Agenda) Act 2000 (Cth). This

provision has now been removed from the Copyright Act, as amended by the Copyright

Amendment Act 2006 (Cth).

6 (2005) 221 ALR 448; [2005] HCA 58.

7 (2002) 200 ALR 55.

8 Ibid., at 82.

9 (2003) 200 ALR 96.

10 (2005) 221 ALR 448 at 461.

11 Revised Explanatory Memorandum, supra n. 2, at p. 62.

12 ‘‘The Motion Picture Association of America (MPAA) and its international

counterpart, the Motion Picture Association (MPA) serve as the voice and advocate

of the American motion picture, home video and television industries, domestically

through the MPAA and internationally through the MPA’’ [online]. Available at

hhttp://www.mpaa.org/AboutUs.aspi [Accessed January 2007].

13 For example, compare Australia’s fair dealing exception for research and study with

Canada and New Zealand; section 29 of the Copyright Act (R.S.C. 1985, c. C-42) or

section 43 of the Copyright Act (1994) NZ. Australia’s exception is more lengthy and

detailed and appears to be less permissive than these other jurisdictions.

14 For example, in 1986, the Australian federal government commissioned a study through

the Department of Trade and the Economic Planning Advisory Council to explore a

potential trade agreement with the United States (Rann, 2004, p. 199). Note that the

final report recommended that any trade liberalization should occur on a multilateral,

rather than bilateral, basis.

15 Note that Senator Aden Ridgeway unsuccessfully tried to introduce amendments

allowing for a defence of fair use in the Copyright Act. Senate Official Hansard

[online], No. 10 2004, Thursday 12 August 2004 at p. 26411. Available at hhttp://www.aph.gov.au/hansard/senate/dailys/ds120804.pdfi [Accessed January 2007].

16 Official Committee Hansard, Senate Select Committee on the Free Trade Agreement

between Australia and the United States of America [online], 4 May 2004 at 43.



Available at hhttp://www.aph.gov.au/hansard/senate/commttee/S7556.pdfi [Accessed

January 2007].

17 Remarks by the President Upon Signing of H.R. 4759, the United States–Australia Free

Trade Agreement Implementation Act, ‘‘President Bush Signs U.S.–Australia Free

Trade Agreement’’ [online], 3 August 2004. Available at hhttp://www.whitehouse.gov/news/releases/2004/08/20040803-1.htmli [Accessed January 2007].

18 This is especially evident when the AUSFTA is compared with the Singapore–Australia

Free Trade Agreement, which has an intellectual property chapter of three pages, and

the Thailand–Australia Free Trade Agreement, which has an intellectual property

chapter of two pages. For the full text of SAFTA, see website available at hhttp://www.dfat.gov.au/trade/negotiations/safta/index.htmli [Accessed January 2007] and for

the full text of TAFTA, see website available at hhttp://www.dfat.gov.au/trade/negotiations/aust-thai/tafta_toc.htmli [Accessed January 2007]. US free trade

agreements are quite varied in length (the majority are longer than 20 pages), with earlier

FTAs such as the US–Jordan FTA containing an intellectual property chapter of five

pages and later FTAs such as the US–Morocco FTA with an intellectual property

chapter of 37 pages. For the full text of the US–Jordan FTA, see website available at

hhttp://www.ustr.gov/assets/Trade_Agreements/Bilateral/Jordan/asset_upload_

file250_5112.pdfi [Accessed April 2007] and for the full text of the US–Morocco

FTA, IP section, see hhttp://www.ustr.gov/assets/Trade_Agreements/Bilateral/

Morocco_FTA/FInal_Text/asset_upload_file797_3849.pdfi [Accessed April 2007].

19 Australia–United States Free Trade Agreement, Article 17.4.4(a).

20 Ibid., Article 17.4.4(b).

21 Ibid., Article 17.4.7(a)(i).

22 Ibid., Article 17.4.7(a)(ii).

23 Ibid., Article 17.4.7(e)(i)–(vii).

24 Ibid., Article 17.4.7(e)(viii).

25 Ibid., Article 17.4.8(c)(i)–(iii).

26 The Hon. Nicola Roxon, House of Representatives Hansard, Second Reading Speech on

the Copyright Amendment Bill 2006, 1 November 2006, p. 28.

27 Explanatory Memorandum, Copyright Amendment Bill 2006, at [1.7].

28 Senate Standing Committee on Legal and Constitutional Affairs, Committee Hansard,

7 November 2006, at pp. 41–2.

29 The Hon. Philip Ruddock, Copyright Amendment Bill 2006, Second Reading Speech,

House of Representatives Hansard, 19 October 2006, p. 1.

30 Ibid.

31 See, for example, the Senate Standing Committee on Legal and Constitutional Affairs,

Committee Hansard, 7 November 2006, at p. 62.

32 Ms Helen Daniels, Senate Standing Committee on Legal and Constitutional Affairs,

Committee Hansard, 7 November 2006, p. 62.

33 See Submissions received by the Committee as of 10 November 2006 [online]. Available

at hhttp://www.aph.gov.au/Senate/committee/legcon_ctte/copyright06/submissions/

sublist.htmi [Accessed January 2007].

34 See the Senate Standing Committee on Legal and Constitutional Affairs, Committee

Hansard, 7 November 2006, at p. 9.



35 The Hon. Duncan Kerr, House of Representatives Hansard, Second Reading Speech on

the Copyright Amendment Bill 2006, 1 November 2006, p. 40.

36 See sections 132APA(1)(d), 132APB(1)(b) and 132APC(1)(b), Exposure Draft of the

Copyright Amendment (Technological Protection Measures) Bill 2006, 1 September

2006 [online]. Available at hhttp://www.ag.gov.au/www/agd/agd.nsf/Page/RWP82C5A0C70ED1A0F1CA2571EE0082AD42i [Accessed January 2007].

37 Senator the Hon. Santo Santoro, Second Reading Speech, Senate Hansard, 6 November

2006, at p. 137.

38 Kim Weatherall in Senate Standing Committee on Legal and Constitutional Affairs,

Committee Hansard, 7 November 2006, at p. 7.

39 Ibid.

40 Ms Helen Daniels, supra n. 32, at p. 61.

41 See Attorney General’s Department Media Release 225/2006 ‘‘Senate Passes Major

Copyright Reforms’’ [online], 1 December 2006. Available at hhttp://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Media_Releases_2006_Fourth_Quarter_

2252006_-_1_December_2006_-_Senate_Passes_Major_Copyright_Reformsi [Accessed

January 2007]; Media Release 227/2006 ‘‘Australia Leads the Way on Copyright

Reform’’ [online], 6 December 2006. Available at hhttp://www.ag.gov.au/agd/WWW/

MinisterRuddockHome.nsf/Page/Media_Releases_2006_Fourth_Quarter_2272006_-_

6_December_2006_-_Australia_leads_the_way_on_Copyright_Reformsi [Accessed

January 2007]; Media Release 236/2006 ‘‘Copyright Gift for Consumers’’ [online],

12 December 2006. Available at hhttp://www.ag.gov.au/agd/www/ministerruddockhome.

nsf/Page/Media_Releases_2006_Fourth_Quarter_2362006_-_12_December_2006_-_

Copyright_Gift_for_Consumersi [Accessed January 2007].

42 See Attorney General’s Department, Media Release 233/2006, ‘‘British Report Follows

Australia’s Lead on Copyright’’ [online], 10 December 2006. Available at hhttp://www.ag.gov.au/agd/www/ministerruddockhome.nsf/Page/Media_Releases_

2006_Fourth_Quarter_2332006_-_10_December_2006_-_British_report_follows_

Australia&aposi [Accessed January 2007].

43 See Media Release 236/2006, supra n. 41.

44 Senator Andrew Bartlett, Senate Hansard, 30 November 2006, p. 102.

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Advance Australia Fair? The Copyright Reform Process

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