Libs, ALP attack internet freedoms. : Melbourne Indymedia

Peter Coroneos of the Internet Industry Association in a press release noted that:

“Not only will ISPs be bombarded by claims from copyright owners, but the new provisions require ISPs to disable access to users’ websites in response to any claim that material *may* be infringing. In other words, anyone - not just the rights holder - can allege an infringement and an ISP will be bound to act. This is a worrying development and runs contrary to any notion of natural justice."
http://www.iia.net.au/news/041201.html

This development gives the government and copyright holders sweeping new powers to attack potential violations of copyright, goes further than is required by the US/Aus "free trade" agreement and goes further than the US copyright law itself!

Reproduced below is Greens Senator Kerry Nettle’s speech to parliament last night regarding the changes that have now been passed.

For another way to approach copyright issues check out
http://www.geneva03.org/display/item_fresh.php?id=26〈=en
http://creativecommons.org
http://www.negativland.com/

Senator NETTLE (New South Wales) (7.46
p.m.)—The US-Australia free trade agreement is a disaster
for Australia’s economy, culture and society. The
impact of the agreement is even clearer with this Copyright
Legislation Amendment Bill 2004, which will
further transform Australia’s intellectual property law
to align it with the worst aspects of the US copyright
law. It was clear from the beginning of the negotiations
that, despite government claims, any agreement
reached on the trade agreement would benefit US corporations
at the expense of Australian industry, workers
and consumers. The final deal was a dud for Australian
agriculture and manufacturing industry and
traded away important regulation of access to cheap
medicines and intellectual property.

Earlier this year the government, with the support of
the opposition, rammed through the implementing legislation
for the deal, despite widespread public opposition
to the agreement. We now know that even the
weak amendments passed by the Senate regarding the
evergreening of pharmaceutical patents are likely to be
challenged by the United States. US Trade Ambassador
Zoellick, in his recent letter to the Minister for Trade,
Mark Vaile, released by the government last week,
states:
If subsequent practice reveals problems with the full exercise
of US rights I have discussed above, Australia should expect
that we will take appropriate remedial action.

This is exactly the danger the Greens and other critics
of the trade agreement warned of. The US will use the
agreement as a stick with which to break open the
Pharmaceutical Benefits Scheme, undermine generics
and force up the price of medicines for sick Australians
—all this so that big US pharmaceutical corporations
can boost their profits.

While there has been a lot of debate about the PBS
and the cultural components of the free trade agreement,
in many ways some of the key issues in the
agreement have not been properly explored yet. While
the government claims the agreement is about free
trade, this intellectual property component of the trade
agreement—the harmonising of our laws with the US
intellectual property laws—means less free trade and
more government enforcement of private monopoly
rights. Chapter 17 of the free trade agreement covers
trademarks, patents and copyright. Most of the clauses
on intellectual property reproduce those in the United
States Digital Millennium Copyright Act 1998 and
those in the Singapore and Chile free trade agreements.

They are part of an ongoing agenda of the United
States to push through bilateral trade agreements that
enhance the control and ownership of US corporations
in the IT and entertainment industry.

The US wanted these changes, because according to
a new book by trade experts Linda Weiss, Elizabeth
Thurbon and John Mattews:
The intellectual property protected sector is now by some
accounts the largest sector of the entire US economy. Everything
from life forms to movies is covered in this sector. Its
exports now exceed the exports of automobile, automobile
parts, agricultural and aircraft industries combined. This is
the real reason for the US concern to extend and strengthen
IP rights. The copyright-protected sector on its own—
covering films, TV programs, home video, digital videodiscs,
business and entertainment software—was estimated
to be worth 5.2 per cent of US GDP in 2001, US$535 billion.
In the same year, this sector achieved foreign sales of US$89
billion, making it the leading export sector in the United
States ... Thus in the area of intellectual property, the US has
a very definite agenda backed by very real economic interests.

The US Free Trade Agreement Implementation Act
2004 implemented this agenda in Australian law: for
example, extending the life of copyright from 50 to 70
years, the so-called ‘Disney’ clause. The Greens opposed
this legislation and the IP component of this legislation
not only because it increased the powers of US
corporations but also because it did not even include
some of the few protections that do exist in the United
States for users and consumers in the form of fair use
and the free speech provisions that exist in the US constitution.

The Australian Libraries Copyright Committee
explained at the time:
The detrimental consequences of this will be felt broadly
amongst educational, consumer, cultural and research institutions.
Without expansion of the fair dealing provisions to
balance the stronger copyright owner rights, institutions
functioning for the benefit of the public, will bear the burden
of a longer copyright term, more stringent copyright owner
rights, and tougher penalties for incidental, minor and noncommercial
breaches of Copyright. This will expose institutions
to greater costs and greater risks. Ultimately this will
adversely affect the end users of these institutions, who will
not be able to access the same level of knowledge via copyrighted
material.

The agreement in the legislation also went well beyond
what Australia had even signed on to in the highly
criticised WTO agreement on trade related aspects of
intellectual property rights, known as TRIPS. Australia
and Australians will not benefit from these laws if they
come into force on 1 July next year. Australia already
has a balance of payments deficit when it comes to
intellectual property. We are a net importer of ideas and
technology and our payments of royalties to foreign
companies exceed our income in 2002 by more than
$A1 billion. Thanks to the Howard government we
now have some of the most unbalanced and restrictive
intellectual property laws in the world, with holders or
owners of copyright—that is, primarily big business—
holding all of the cards at the expense of users and
consumers such as libraries, universities, Australian
industry and ordinary consumers.

But post the election in United States the US has
come back for more. The Minister for Trade, Mark
Vaile, has caved in yet again, agreeing to changes to
Australia’s intellectual property law that go even further
than international agreements and even further
than the US law in protecting the US corporate owners
of intellectual property at the expense of users and consumers.
Why? The US are going to do whatever they
can get away with in terms of furthering their own
agenda, and it seems that the Howard government are
all too willing to cooperate. The clauses contained in
the bill—and the US has managed to get the Australian
government to agree to them—will go far further than
international agreements. They will set a new benchmark
for the United States when it comes to their negotiations
either with bilateral agreements or with multilateral
agreements.

The government claim that the changes contained in
this bill are merely technical or minor. But that is not
what the industry groups or consumer groups are saying.
Groups as diverse as Optus, Telstra, libraries, universities
and the Australian Consumers Association are
all very concerned by the proposals put forward in this
legislation. In particular, changes which will effectively
remove the safe harbour provisions that were
introduced in the earlier legislation, the implementing
bill, mean that diversity on the Internet will be threatened.
The bill includes provisions which will do a range of
different things. They will broaden the scope of offences
to which criminal provisions apply to commercial
piracy that does not occur in a trade context and
strengthen the criminal regime for business end-user
piracy, increase the obligation of copyright users to go
behind the person or corporation named on the item to
find out if there are additional copyright owners, narrow
the scope of the incidental copies exception to
temporary copies made as a necessary part of using a
copy of the work and limit the transition period in
which copyright users can claim compensation due to
the extension of copyright from 50 to 70 years. But the
provisions that the Greens and community groups are
particularly concerned about regard the liabilities of
Internet service providers, and these are complainants
whom we believe can have the greatest impact. However,
other industry groups have been pointing out
concerns about other parts of this legislation as well.

Changes to copyright law forced by the US free
trade agreement made earlier in the year imported from
the US the so-called safe harbour scheme for Internet
service providers. This scheme meant that ISPs, the
Internet service providers, that operated within the
guidelines and the requirements of the safe harbour
would not be subject to liability for infringing copyright
from materials through the hosting of a user’s
web sites or services. This included the transmission of
infringing material, the caching of material, the hosting
of web sites with infringing material and the linking to
infringing material.

Internet service providers under the existing legislation
must still remove infringing material if they have
actual knowledge of an infringement, but they are not
required to monitor their web sites and servers for infringing
material. For example, if they receive a court
order requiring them take down material, they need to
comply. But they do not need to go looking for that
material on their sites. However, items 11 and 13 contained
in this bill will mean that the safe harbour provisions
will go out the window. Item 11 and item 13 of
the bill will have a significant and detrimental effect on
the Australian IT industry and, more importantly, on
ordinary consumers and users of the Internet. Item 11,
which is the same as item 13, states:
The carriage service provider must act expeditiously to remove
or disable access to a reference residing on its system
or network if the carriage service provider:
(a) becomes aware that the copyright material to which it
refers is infringing; or—
and this is particularly concerning—
(b) becomes aware of facts or circumstances that make it
apparent that the copyright material to which it refers is
likely to be infringing.

Similar clauses in the Digital Millennium Copyright
Act 1998 in the United States have led to a burgeoning
industry of take-down notices and claims which have
meant that Internet service providers are forced into
taking off line web sites and services rather than risking
potential legal action.

The key problem with these items is that they force
ISPs to take action regardless of the substance of the
claim, or risk legal action. Claims can be spurious and
unfounded yet, because they are not tested in a court
prior to the ISP needing to take action, they are wide
open to abuse. Some ISPs have been served with tens
of thousands of take-down notices. Often these notices
are automatically generated by software, which
searches the Internet for potential infringements. According
to the Internet Industry Association, which
represents a range of industry players including Optus
and Telstra through to the smaller IT companies, this
bill will cause huge problems. They say, ‘Internet service

providers will be caught between a “rock and a
hard place”—liable to copyright owners if we don’t

act, liable to customers if we do.’ The careful balance
of the rights of copyright owners, users and ISPs is
severely undermined.

The Electronic Frontiers Foundation, EFF, a leading
advocate for organising Internet rights and freedoms,
have compiled a list of examples of some of the abuses
that have occurred under similar provisions in the US
Digital Millennium Copyright Act. This has meant that
information in the public domain has been taken down.
For example, Wal-Mart have used take-down provisions
to stop web sites occurring that compare their
prices to the prices of their competitors, the Church of
Scientology have served take-downs on web sites that
host articles critical of the Church of Scientology and
the owners of trade marks have tried to use take-downs
against their competitors.

The number of notices served on one company can
often, as I said before, number in the thousands or, indeed,
the tens of thousands. A conference was held at
the University of New South Wales in April this year,
at which a woman called Sarah Deutsch, who is from
Verizon, a major American ISP, told the symposium:
A US ISP received from January to today—
that is, from January until the end of April this year—
over 30,000 notices, only two of them actually related to
materials that were on its system of network. So these were
all non-compliant notices and in the past 12 months the same
ISP— which received 30,000 notices from January to April—
received over 90,000 notices.

So this is the number of notices that we are talking
about being automatically or otherwise—but predominantly
automatically—generated. The Australian Consumers
Association has described this proposed regime
as a ‘recipe for disaster’. They say it ‘turns Internet
service providers into a policeman of other people’s
copyright, solely based on some sort of assertion of
ownership’. The Australian Digital Alliance, which
represents libraries and universities, say that a scheme
such as that contained in this bill ‘has to address the
potential for owners to send out spurious take-down
notices without reasonable claim to a copyright
breach’, and they have called for these clauses to be
removed—something that the Greens will address in
amendments.

The problem, of course, is that ISPs have no real
way of testing the claims of take-down notices and will
always err on the side of caution and immediately remove
material subject to notification. They will always
do this regardless of the rights or wrongs of the claim,
because they do not want to risk the big legal battles
that we have seen recently in cases such as the music
industry’s pursuit of Kazaa, the Internet file-sharing
software company. Of course, such take-down notices
could also be used politically with, for example, a takedown
notice being served on the ISP of a political opponent’s
web site. The result, even if only temporary,
could mean that the web site would be off line for
weeks. It could, for example, be at a crucial or important
point in an election campaign. The effect is a reduction
in diversity and freedom of speech on the Internet and
a huge impost on Australian IT’s small and large business.

The Greens’ amendments will remove from the bill
the provisions which would effectively shut down the
safe harbour for Internet service providers in Australia.
Those are items 11 and 13 of the bill. The effect of removing
these items will not prevent the enactment of
alternative provisions in the future, so the government
would be able to do so by regulation, as was originally
envisaged in the legislation—certainly in the consultations
that occurred with the industry. Hopefully, it
means that government will consult further with industry
and address the problems these items will cause.
This legislation is unnecessary and unwelcome. It
will take us even further down the path of the US monopoly
copyright law without the protections. In the
cases I am talking about, it will be worse than the US
law. It is not about protecting Australian consumers
and the IT industry but everything about helping giant
US media and IT corporations. The Greens opposed
the US free trade agreement implementing legislation,
and we will also be opposing this bill today as well as
moving the amendments I have outlined and others that
are yet to be circulated. We will continue to campaign
in support of genuine fair trade rather than free trade.
We will also campaign for a better deal for Australian
industry and ordinary people who are affected by such
agreements, not just in the IP component of the legislation
that we are talking about today but also more generally.