Chapter 3 - Intellectual Property
A major concern of Labor Senators is that Australia entered into the Intellectual Property (IP) obligations of the Agreement in a manner that cut across established processes for copyright law reform and which did not appear to be part of a strategic vision of intellectual property.
Labor Senators were also concerned that it was difficult to get a comprehensive explanation from Government officials on many of the implications of the FTA on Australia's IP regime,
These concerns and more specific issues raised in the main report are addressed by the following recommendations:
Recommendation 6
Labor Senators recommend that the Senate establish a Select Committee on Intellectual Property to comprehensively investigate and make recommendations for an appropriate IP regime for Australia in light of the significant changes required to Australian IP law by the AUSFTA.
Recommendation 7
Labor Senators recommend that the Commonwealth Government enshrine in the Copyright Act 1968 the rights of universities, libraries, educational and research institutions to readily and cost effectively access material for academic, research and related purposes. Labor Senators further recommend that the issue of such use of copyright material should be referred to the Senate Select Committee on Intellectual Property to investigate whether universities, libraries, educational and research institutions should be exempt from paying royalties after 50 years.
Recommendation 8
Labor Senators recommend that the Senate Select Committee on Intellectual Property investigate options for possible amendments to the Copyright Act 1968 to expand the fair dealing exceptions to more closely reflect the 'fair use' doctrine that exists in the United States and to address the anomalies of 'time shifting' and 'space shifting' in Australia.
Recommendation 9
Labor Senators recommend that the Senate Select Committee on IP review the standard of originality applied in Australia in relation to copyright material with a view to raising the threshold to a standard such as that in the United States.
Recommendation 10
Labor Senators recommend that the Senate Select Committee on Intellectual Property should investigate the possibility of establishing in Australia a similar regime to that set out in the Public Domain Enhancement Bill 2004 (US), with a view to addressing some of the impacts of the extension of the term of copyright, in particular the problems relating to 'orphaned' works.
Recommendation 11
Labor Senators recommend that the Senate Select Committee on Intellectual Property investigate amendments to Copyright Act 1968 to provide that a contract that purports to exclude or modify exceptions to copyright infringement such as fair dealing is not enforceable.
Recommendation 12
Labor Senators recommend that the Commonwealth Government use the two year implementation period applying to effective technological protection measures to ensure exceptions will be available to provide for fair dealing including temporary copies, research and study and the legitimate private use and application of all legally purchased or acquired audio, video, DVD and software items on components, equipment and hardware, regardless of the place of acquisition.
Recommendation 13
Labor Senators recommend that the Commonwealth Government use the two year implementation period applying to effective technological protection measures to ensure exceptions will be available to provide for the sale and distribution of legitimate audio, video, DVD and software items, as well as related components, equipment and hardware, regardless of the place of acquisition.
Recommendation 14
Labor Senators recommend that the Commonwealth Government ensure that specific exceptions will be available in the implementation of Australia's obligations in relation to Technological Protection Measures (TPMs) to provide for the manufacture of interoperable software products.
Recommendation 15
Labor Senators recommend that the Commonwealth Government implement Recommendations 15 and 16 of the Digital Agenda Review report prepared by Phillips Fox to ensure that temporary reproductions and caching are explicitly protected under Australian law.
Recommendation 16
Labor Senators recommend that any notice and take-down scheme introduced by regulations should balance the interests of copyright owners while appropriately protecting the personal information of Internet users_ Regulations should ensure that carriage service providers are not required to disclose personal information about their customers unless compelled to do so by a court order.
Recommendation 17
Labor Senators recommend that the reasonable costs to Internet service providers of complying with a notice and take-down procedure should be met by the issuer of the notice.
Recommendation 18
Labor Senators recognise that assessing whether a copyright infringement has occurred Is a complex Issue, appropriately determined by a court. Any notice and take-down scheme should not require a carriage service provider to assess whether a copyright infringement has occurred, or the relative seriousness of any infringement.