Shouts from the desert

I have just finished going through Chapter 17 of the US-Australia Free Trade Agreement. I knew from the earlier announcements that this was not going to be good, but nothing prepared me for the extent of the disaster that this part of the agreement represents.

The chapter covers 29 pages of the agreement. While treaties normally specify things at a high level, leaving the details to each nation involved, this particular chapter approaches being a detailed code for the scrapping of Australia's intellectual property regime to replace it with that of the United States.

When we pass laws internally, we have a long and open process that we go through to evaluate whether the law is truly appropriate. In the case of the Spam Act, there was debate over the course of years, an administrative investigation process proceeding through various phases over the course of a year and a half, then the Parliamentary process, including a Senate inquiry, followed by a four month grace period. Between the start of the administrative investigation and the legislation coming into force we had two years and two months. And that was considered a rapid legislative process.

In the case of the copyright sections of the FTA, the rules were decided in secret, without public input, discussion or debate, without an intensive investigation process, over the course of a few months by a handful of negotiators. They have produced a set of rules far more extensive than that in the Spam Act, designed to extensively rewrite Australian copyright laws.

Now you might think that this is no big deal, we can just stop it in Parliament. Well yes, we can stop it there - but there are significant consequences to Australia if Parliament rejects the changes. The United States can take what is known as "counter-measures" against Australia by denying Australia its rights against the United States under other treaties - such counter-measures would be legal, and Australia would be acting illegally if it retaliated to them in any way. The United States could take Australia to the International Court of Justice to seek compensation. There are a host of other things they could do, which Australia would be unable, legally, to prevent.

Chapter 17 of the FTA thus represents a brazen attempt to usurp the democratic process for creating laws defined in our Constitution, and replace it with a non-democratic closed-door process where the details of our domestic laws are decided by nameless, faceless and unaccountable diplomats.

Problems with this chapter go further than that.

Article 17.3.4 requires Australia to extend the copyright term to 70 years after the death of the author as has been done in the United States. This includes already published works, giving a windfall to the owners of works who thought they must have been worth creating or acquiring when there was a 50 year term. It is highly doubtful that this term in the United States is validly within their Constitution - the decision of their Supreme Court to contrary in Eldred v Ashcroft resting on a major logical fallacy (ask me about this some other time). It is extremely likely to be overturned before 70 years are out, at least to the extent that it covers works already published when the term was extended. Copyright extension is a topic that I could go on about for far more than the chapter's 29 pages in terms of why it's a bad idea to extend the term of copyright for already published works. Not only is it a bad idea - it is a breach of a promise made to the people of Australia many years ago regarding the time at which they would be able to have free access to those works, a breach of promise which is every bit as offensive to the conscience - if not more so - as a breach of a treaty would be.

In Article 17.4.7(a)(i), the FTA requires Australia to ban the circumvention of a technological protection measure. This is currently not illegal in Australia (although some related activities are illegal). The effect of this would be that where there is a technical measure that protects a copyright protected work from infringement, it will be illegal to circumvent that measure even if the use you were making of the work was otherwise legal. For example, in Sony v Stevens the PlayStation technological protection measure was combined with the region coding mechanism, so that circumventing the region coding mechanism necessarily circumvented the protection as well. Under the new law required by the FTA, the movie industry could do something similar with a new generation of DVD technology (let's call it DVD-NG for Next Generation), so that it would be illegal for you to buy DVDs from another region and use them on a region-free DVD-NG player. The agreement also prevents Australia from correcting a current defect in the law.

The Article 17.4.7(a)(i) situation is particularly obscene, because in both administrative and Parliamentary inquiries the conclusion has been that it would be inappropriate to ban this particular activity - the FTA has gone and swept the result of our own open democratic process aside with a nod and wink of diplomats.

In Article 17.11.6, the agreement requires Australia to allow for "double-dipping" in copyright suits. Until now, the copyright owner could ask for damages (that is, compensation for losses), or the infringer's profits from the breach. Under Article 17.11.6, Australia is required to allow both - that is, damage plus profits. This Article also sets the retail price as effectively the minimum amount of damages (currently it is possible for there to be no damages in circumstances where you can show the copyright holder would not have otherwise received any money at all). Article 17.11.7 takes this further and requires a statutory minimum amount of damages even where actual damages would be small or non-existent.

And by the way - you don't have to know you have infringed to be subject to these penalties and liabilities.

Summary - the intellectual property chapter is a dog, with fleas. It is bad for Australia, and it is bad for our democratic processes. This chapter alone justifies treating the entire agreement as a failure. Don't get me wrong - I'm strongly in favour of a free trade agreement with the United States, but not at this cost. The cost is far higher than the benefits justify.

Oh, and if you thought maybe it's worth it for those trade benefits 20 years down the track, think again. Under Article 23.4.2, the agreement can be terminated at any time by 6 months notice by either party. What are the chances, really, that we'll get those benefits 20 years from now? Unfortunately we'll have passed laws giving away intellectual property rights that we may not be able to repeal - there may even be Constitutional issues with repealing them.