14 September 2004
Key Points:
The FTA is already bringing longer terms, new rights, and new enforcement powers to Australian copyright owners.
Extensive changes to copyright law are being introduced by the Australia-United States Free Trade Agreement, some of which amendments are implemented in the US Free Trade Agreement Implementation Act 2004.
One very important change is the introduction of performers' rights as co-owners of the copyright in sound recordings, and increased performers' protections. New "moral rights", referred to as the "rights of performership" and very similar in all respects to the current moral rights of authors, will also be introduced by this Act. These changes are so significant and extensive that we will report on them separately in the next edition of Insights.
In this article we look at how the Act affects copyright terms, digital agenda rights, ISP liability, and copyright enforcement.
Extension of copyright protection
The FTA requires an extension of the general term of copyright from 50 years to "not less than" 70 years, which mirrors the US copyright extension in the Sonny Bono Copyright Term Extension Act (1998) and the duration of copyright under European laws. The Act will implement this requirement for all copyright material, in a two step process. First the copyright term for photographs, presently 50 years from the end of the year of publication, will be brought into line with other artistic works - ie. 50 years from the end of the year of death of the author - effective 1 January 2005. Secondly, if the FTA is ratified in due course, the term of copyright for all copyright material will be 70 years from the relevant starting point. These provisions apply only to subject matter in which copyright still subsists as at the date the implementing provisions come into effect - there is no "revival" of copyright already expired.
To deal with the potential effect of the extension of copyright, there are provisions in the Act for agreements which were made before the Act received the Royal Assent (16 August 2004), and which are "for the purposes of doing an act at a particular time that would [except for this provision] infringe the copyright" in copyright material "made in reliance on the copyright having ceased to subsist before that time." In essence, in these circumstances, there is a statutory licence permitting the person to do the act which would otherwise be a breach of copyright "at any time" (regardless, it appears, of whether the provisions of the agreement in question require such act to be performed only once or within a particular time). However, the owner of copyright may prevent the act if, before the person does perform the act (the provisions do not make clear whether for the first time or not), the owner of the copyright gives notice to the person objecting, and pays compensation to that person, as agreed or determined by the Copyright Tribunal.
Digital Agenda issues
The FTA contains a number of provisions relating to intellectual property standards in the treatment of digital copyright material, many of which are already in the Copyright Amendment (Digital Agenda) Act 2000. However, under the FTA, Australia must modify these provisions further to come into line with some aspects of the US Digital Millennium Copyright Act (1998).
Rights management information is electronic data that identifies, amongst other things, the author of a work or the terms and conditions for the use of the work. The FTA requires, and the Act provides, that it will be a breach of copyright to remove or alter rights management information from a copy of a work or other subject matter, or to import, distribute or communicate that work or subject matter to the public knowing that the rights management information has been removed or altered.
Technological protection measures: The FTA requires Australia to strengthen its laws in this area, for example by broadening the definition of technological protection measure to one that controls access to a protected work, rather than just preventing or inhibiting infringement. This would correct a known defect in the Australian legislation, illustrated in recent Sony v Stevens court decisions (see our November 2003 edition of Insights). Additionally, the FTA requires that new criminal offences for knowingly circumventing an effective technological measure which controls access to a copyright work be recognised, and calls for the removal of the knowledge element from the civil action of manufacturing or dealing in devices that are primarily for the purpose of circumvention of an effective technological measure.
The Act however does not currently address any of these requirements. This part of the Digital Agenda Act is currently under review, and is also the subject of an appeal to the High Court in the Sony v Stevens case, so further amendments may be expected in the future.
Conditional limitation on ISP liability
ISPs' liability for copyright infringement is dealt with by the Digital Agenda Act, but the FTA is much more detailed in its description of conditional limitation on their liability. This limitation on liability means that a court cannot order monetary relief against an ISP, and restricts a court's ability to compel or restrain certain ISP actions, such as terminating accounts or disabling access to infringing copyrighted material.
The FTA sets out four types of ISP activity:
The conditions imposed upon ISPs in order to enjoy limited liability become more stringent for each category from (1) to (4), as the ISP has greater access of and control over the copyrighted material. The ISP is, however, to be presumed to have complied with these conditions if it can point to evidence suggesting its compliance, nor is it required to monitor or investigate its systems and networks for copyright infringement, apart from that required by relevant industry codes. In particular, conditions for (3) and (4) require that ISPs do not receive a financial benefit directly attributable to the infringing activity, and expeditiously remove or disable access to material residing on its network or systems when it obtains actual knowledge of copyright infringement, or becomes aware of facts or circumstances from which copyright infringement is apparent. This may be achieved through a notices regime whereby the ISP reacts to effective notices of infringement issued by copyright holders, taking down alleged infringing material, as well as effective counter-notifications by those whose material is the subject of the notice, restoring alleged infringing material.
The Act implements this to all "carriage service providers", as defined under the Telecommunications Act 1997, and not just ISPs, but does not implement the FTA obligation to allow a copyright owner who has given effective notice of copyright infringement to an ISP to obtain an order (possibly without the need for judicial authority) that the ISP provide information identifying the alleged infringer. Again, a recent decision indicates that effective remedies in this regard already exist in Australia, with suitable safeguards, under the Federal Court Rules.
Enforcement
There are two main ways in which the FTA requires Australia to strengthen enforcement. First, there are new criminal offences, including
Secondly, the FTA would give greater powers under the civil remedies to the courts and ultimately the rights holder, including provision for orders for seizure and destruction of suspected counterfeit goods and related items (without compensation) and for the alleged infringer to provide information.
The Act only introduces the new criminal offence of wilful copyright piracy on a commercial scale. Interestingly, the changes appear to have narrowed some current criminal offences. Those relating to trade now require a higher element of intention "of obtaining a commercial advantage or profit". The term "profit" excludes any advantage due to use of copyright material in the private sphere. The prosecution bears the burden of disproving such a possibility. In addition, the new offence of wilful copyright piracy on a commercial scale has a high bar for proof, requiring proof of a "substantial prejudicial impact on the copyright owner".
A question of balance
In a media statement, the Shadow Minister for Sport and Recreation, the Arts and Information Technology, Senator Lundy, proposed that the great benefits extended to copyright owners and performers by the Act should be balanced somewhat by an extension of the "fair use" doctrine, to bring it in line with what is already US law, to permit domestic copying without infringement. This has been proposed before, by the Copyright Amendment Act 1989, which unfortunately was found to be invalid on constitutional grounds, and again by the Copyright Law Review Committee, a body of experts established by the government to advise on copyright law reform, in its Report "Simplification of the Copyright Act 1968 - Part 1" of September 1998, but has been ignored. This laudable suggestion has come into even sharper focus with the current debate regarding music and video downloads for domestic use.
