A November 22 article by Ross Gittins, Economics Editor for the Sydney Morning Herald painted a disturbing picture of regret regarding the US-Australia Free Trade Agreement. The thrust of his article is that the FTA sold out a lot of Australian Intellectual Property interests through the agreement to harmonise our Copyright and other IP laws with those in the
Unfortunately for any Australians involved in the internet industry, his warnings have come true sooner than expected, with the lower house of the Australian Parliament passing incredibly flawed legislation on the 8th of December.
Critically, the legislation enabling these amendments was 'held back' by the Government until less than a week before it was introduced, providing very little time for expert organisations like the Internet Industry Association (IIA) to review and respond to the changes.
IIA chief executive, Peter Coroneos said: "The latest provisions are not merely 'minor and technical', as claimed by the Government - they have the potential to completely undermine the safe harbour system contemplated by the FTA and destroy the careful balance of rights inherent in our existing copyright law".
"Unbelievably, as soon as the latest changes were revealed for the first time late last week, IIA was shocked to discover that the provisions even go further than the US Copyright law itself," continues Peter Coroneos. "The new provisions increase the risk that Australian ISPs will be bombarded by inaccurate machine-generated claims. This has proved to be a significant problem in the
The practical result of this change is that Australian companies - companies like ours - could be issued with a notice from an American company which alleges copyright infringement. It is then the responsibility of the Internet Service Provider, or ISP, to action the notice and argue it's validity - a complete reversal on traditional burdens of truth.
As Ross Gittins says, "what they're trying to do is get the rest of us to harmonise our IP law with theirs. That wouldn't be such a bad idea if their IP law was good law. But the economically corrupt US Congress has allowed
What does this mean for you?
If you're using the internet to conduct business, you're at greater risk. Imagine if someone came along and shut down your shop or set up a picket, just because they think that you might be acting in a way that is against their interests, and you have to remain closed while you defend yourself - never a quick process when lawyers are involved.
If you have a home internet connection, and your kids are downloading music this school holidays, you might find yourself at greater risk than before of being dragged through a civil court battle like the hundreds of US citizens who were pursued by the RIAA and record companies in late 2003.
Our biggest concern is that this is only the beginning. It is widely acknowledged around the world that the US Digital Millennium Copyright Act 2000 is an incredibly flawed and divisive law, and it appears that the longest reaching effect of the USA-Australia FTA will be to have it imposed here - whether we like it or not - for very little upside.
Thankfully, there still appears to be some room for movement. As Peter Coroneos, from the IIA explains in an Age article following the passage of the legislation, "We are meeting Mr Vaile tonight in Canberra to work on the regulations which would be used to soften the bill". Hopefully, while the letter of the law may be unpalletable, its actual implementation and the regulations that guide its enforcement will not involve us following the American path so blindly as the legislation would have us believe.