The Australian Law Reform Commission poses a question in respect of international law in the issues paper on Copyright and the Digital Economy.

Question 1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: a. affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; b. affects the introduction of new or innovative business models; c. imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material; or d. places Australia at a competitive disadvantage internationally.

In response, I would make a number of observations about Australia and its position under international copyright law – with regard to copyright exceptions.

Recommendation 1 The Australian Law Reform Commission – and the Australian Government – should make use of flexibilities under the Berne Convention for the Protection of Literary and Artistic Works in crafting copyright defences, exceptions, and limitations.

Recommendation 2 The Australian Law Reform Commission – and the Australian Government - should not interpret Article 13 of the TRIPS Agreement 1994 in a restricted fashion.

In her piece, ‘International Copyright Law: (W[h]ither) User Rights?), Myra Tawfik observes:

Article 13 of WTO/TRIPS has been interpreted as the overarching normative standard from which to evaluate all limitations and exceptions that curtail rights conferred under the Berne Convention and WTO/TRIPS. Its scope has been the subject of much discussion and commentary, including having been at issue in a recent WTO Dispute Panel decision. Although the test is emerging as the pre-eminent measure for assessing limitations and exceptions and has found its way from Berne to WTO/TRIPS as well as to the WIPO Treaties, its interpretation is still evolving. While there remains uncertainty about the contours of this test, at least one aspect seems clear: the three-step test does not undermine the discretion enjoyed by national legislatures to enact limitations and exceptions so long as they remain consistent with the Berne Convention and conform to the objectives the test was formulated to achieve. More specifically, the test does not prevent countries from introducing “free use” limitations and exceptions, nor does it require further restrictions on existing permitted use formulations.

In this context, the Australian Law Reform Commission and the Australian Government have the freedom to fashion general exceptions – like the defence of fair use – as well as particular exceptions and limitations.

Recommendation 3 The Australian Government should take action to mitigate the impact of the Australia-United States Free Trade Agreement 2004. In particular, there is a need to address the recommendations of Labor Senators in respect of the need to enhance and expand Australia’s copyright exceptions in response to this agreement.

Recommendation 4 The Australian Government should support the WIPO Development Agenda 2007 – particularly in respect of copyright flexibilities designed to promote education, technology transfer, and access to knowledge.

Recommendation 5 The Australian Government should support the adoption of a Treaty on Access to Knowledge (A2K): http://www.cptech.org/a2k/a2k_treaty_may9.pdf Such a Treaty should protect and enhance access to knowledge, and facilitate technology transfer. Such a Treaty would address copyright exceptions, distance education, library and educational exceptions, disability rights, parallel importation, orphan works, and statutory licensing.

Recommendation 6 The Australian Government should not ratify the Anti-Counterfeiting Trade Agreement 2011 (ACTA) – given the failure of the treaty to protect fundamental human rights, civil liberties, and consumer rights.

Recommendation 7 The Australian Government should not support the Trans-Pacific Partnership Agreement – particularly in respect of current proposals on the Intellectual Property Chapter, copyright exceptions, and the Investment chapter. It is disturbing that the Department of Foreign Affairs and Trade has been promoting a copyright maximalist agenda in the negotiations, and has been seeking to confine copyright exceptions in the Trans-Pacific Partnership – according to leaked documents. The Australian Government should maintain its position that it will not adopt trade agreements, with state-investor dispute resolution mechanisms.

Recommendation 8 The Australian Government should adopt and support the Washington Declaration on Intellectual Property and the Public Interest 2011 - http://infojustice.org/washington-declaration