The Australia-US Free Trade Agreement and Intellectual Property

Materials from a symposium

Introduction: UNSW Law Faculty's Baker & McKenzie Cyberspace Law and Policy Centre hosted a symposium on the Australia-US Free Trade Agreement and Intellectual Property in Sydney on 28 April 2004.

This page shows links to materials compiled for this event, and to others that have emerged since. New items were added as they come to hand until late 2004. Materials include the text of the agreement (which was not put before the Australian Parliament for endorsement), the implementation laws which were passed by the House of Representatives in June 2004 and the Senate in August, the later amendment law, and speeches, submissions to inquiries, commentary, media releases and reports.

Details of the symposium itself are now on a separate page, with links to sound files, a draft transcript and some presentations. (IP issues were also covered by our 'Unlocking IP' conference in November.) Speakers and panelists at the symposium were:

FTA text, legislation and related documents

Follow up: The Copyright Legislation Amendment Act (introduced 30 November)

The FTA implementation laws passed in August (below) were subject to a subsequent amendment bill introduced 30 November as a result of correspondence between Australian Trade Minister Mark Vaile and US Trade Representative Robert Zoellick.
It was passed unamended on 9 December.

Minister Vaile's letter to US TR Zoellick (pdf), and Mr Zoellick's reply.

Copyright Legislation Amendment Bill 2004

Overview of materials from House of Representatives on these subsequent amendments
[alternative URL for these expiring, impermanent Parliamentary links]

Explanatory Memorandum for the Bill

First and Second Reading speech by Senator Ellison, 30 November (see pages 1 and 2 of this Hansard)

Varghese J, Parliamentary Library Bills Digest No. 71 2004–05, commentary, 6 December [HTML] [PDF] See also his earlier brief.

Transcript and Report of Senate Inquiry public hearing, 6 December 2004, with answers to Questions on Notice from the Attorney General's Department and Australian Digital Alliance.

Hansard of second reading speeches on 7 and 9 December 2004
(including useful summary of concerns from Peter Andren MP and comments in reply by AG Ruddock; also featuring Simon Crean MP, Dick Adams MP, Nicola Roxon MP, Peter Slipper MP, Alex Somlyay MP, Senator Stephen Conroy, Senator Aden Ridgeway, Senator Kerry Nettle, Senator Ian Campbell, Senator Chris Ellison).

Proposed amendment to the Bill by the Greens relating to ISPs.
(There was another on pharmaceutical patents.)

The Amendment Bill is a series of changes to other acts, some of which in turn amend others, and is hence somewhat obscure. There is a heading below on this page listing a number of Acts relating to copyright.

The most relevant are the US Free Trade Agreement Implementation Act and the Copyright Act (on AustLII, with Notes on amendments including the FTA implementation acts).
The notes were "prepared on 26 August 2004 taking into account amendments up to Act No. 120 of 2004 [FTA Impl. Act].
The text of any of those amendments not in force on that date is appended in the Notes section."

Media and comment on the November amendments

Sam Varghese," Clamour against copyright changes grows", SMH, December 7, 2004
http://www.smh.com.au/news/Breaking/Clamour-against-copyright-changes-grows/2004/12/07/1102182275528.html

'Backlash over proposed copyright amendment', IT news, 7 December 2004
www.itnews.com.au/newsstory.aspx?CIaNCID=37&CIaNID=17213

Riley J, "FTA doubts after ISP protest", The Australian IT, 6 December 2004
australianit.news.com.au/articles/0,7204,11603523%5E15306%5E%5Enbv%5E,00.html

Comment by Kimberlee Weatherall of IPRIA, 4 December
weatherall.blogspot.com/2004_12_01_weatherall_archive.html#110212680466898497 and
weatherall.blogspot.com/2004_12_01_weatherall_archive.html#110186612070834709

Greens WA, "FTA Copyright bill will hurt consumers: Greens", media release 1 December 2004
wa.greens.org.au/items/Media_Release.2004-12-01.5826

Dearne K, "Take Down Notices set to bite", The Australian IT, 30 November 2004
australianit.news.com.au/articles/0,7204,11538653%5E15318%5E%5Enbv%5E15306,00.html

The A-US Free Trade Agreement text

The Australia – United States Free Trade Agreement includes in its 1,000 or so pages Chapter 17 on Intellectual Property (IP) Rights, which consists of 29 articles and 3 exchanges of 'side letters'. Issues include extension of copyright duration, ISP liability for unauthorized distribution of copyright material, access to ISP subscriber information where infringement is alleged, and prohibition of devices used to circumvent piracy protection.

Chapter 17: Intellectual Property Rights Text
www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html

The three 'Side Letters'

The Department of Foreign Affairs and Trade's FTA page includes three 'side letters', correspondence between Minister Mark Vaile and the US Trade Representative Robert B. Zoellick to be read with Ch. 17 of the Agreement.

Side letter on ISP Liability

Side letter on Application of IPR (patents)

Side letter on IPR and National Treatment (phonogram)

The Implementation Legislation

US Free Trade Agreement Implementation Act 2004, No. 120, 2004

Schedule 8 - Patent Amendments

Schedule 9 - Copyright amendments

US Free Trade Agreement Implementation Bill 2004 [HTML or PDF, or from Scale] First reading

Overview of Implementation Bill materials from House of Representatives

Explanatory Memorandum [HTML] or [RTF]

Second Reading speeches, including that of Minister Vaile, 23 June 2004, and a summary table by S Gould.

Amendment moved by ALP, passed by Senate on 13 August 2004
(critics suggest it may contravene Agreement, particularly article 17.11 clauses (17) and (18))

List of all amendments proposed.

US Free Trade Agreement Implementation (Customs Tariff) Bill 2004, First Reading [HTML]

Copyright (International Protection) Amendment Regulations 2004 (No. 1) 2004 No. 257
Explanatory Statement

Patents Amendment Regulations 2004 (No. 3) 2004 No. 250,
Explanatory Statement

Some relevant Australian laws

Copyright Amendment (Digital Agenda) Act 2000
www.austlii.edu.au/au/legis/cth/consol_act/caaa2000294/
(see also review thereof)

Copyright Act 1968
www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/

Patents Act 1990
www.austlii.edu.au/au/legis/cth/consol_act/pa1990109/

Patents Amendment (Innovation Patents) Act 2000
www.austlii.edu.au/au/legis/cth/consol_act/papa2000400/

Australian Government commentary

'Guide to Intellectual Property Rights in the FTA',
DFAT's 'plain English' summary and guide to the Agreement.
www.dfat.gov.au/trade/negotiations/us_fta/guide/17.html

DFAT's responses to the Senate Committee (below) Questions on Notice about IP, July 2004.

Commentary on FTA and Intellectual Property Rights in Australia and Commentary on FTA Outcomes, DFAT fact sheets discussing the negotiation process and goals of the agreement.

Presentation on 'Copyright and the FTA' by Stephen Fox (Principal Legal Officer, Copyright Law, Commonwealth Attorney General’s Department) for Australian APEC Study Centre, March 2004.

Some issues of the AGD e-News on Copyright newsletter cover FTA topics.

Australian Media Releases

Speech by Hon. Mark Vaile to APEC study centre and AUSTA Conference “How the deal was done”, 1 Mar 2004, Canberra

Speech by Hon. Mark Vaile to Business Breakfast Roundtable on USFTA, 20 Feb 2004

Other media releases; see also www.tradewatchoz.org/AUSFTA/Media.html

(see also TradeWatch archive of media coverage of A-US FTA.)

US Commentary

Office of United States Trade Representative

US Dept of Agriculture's 'Foreign Agricultural Service' A-US FTA page.

US Media releases

'President Bush Signs U.S.-Australia Free Trade Agreement', Remarks by the President Upon Signing of H.R. 4759, the United States-Australia Free Trade Agreement Implementation Act, 3 August 2004

Speech by Hon. Dennis Hastert to the US House of Representative, Washington DC, 26 Feb 2004

US Dept of Agriculture's 'Foreign Agricultural Service' A-US FTA page.

Parliamentary research, inquiries and submissions

Parliamentary Library

Varghese J, Parliamentary Library 'Bills Digest' No. 71 2004–05, 6 December 2004 [HTML] [PDF]

Varghese J, 'Current Issues Brief' No. 3 of 2004-5, 3 August 2004, Guide to copyright and patent law changes in the US Free Trade Agreement Implementation Bill 2004. It covers IP in detail, and notes the Bill goes further than the FTA requires. [HTML] or [PDF]

David Richardson, 'Intellectual property rights and the Australia–US Free Trade Agreement', 31 May 2004, Research Paper No. 14 2003–04, Information and Research Services, Parliamentary Library. [HTML] or [PDF]

Senate Select Committee on the Free Trade Agreement between Australia and the USA.

Senate Summary Report, 2 August 2004
www.aph.gov.au/Senate/committee/freetrade_ctte/report/summary/index.htm

Chapter 3, Intellectual Property (see also Labor recommendations)
www.aph.gov.au/Senate/committee/freetrade_ctte/report/summary/ch03.pdf

Senate Interim Report, 24 June 2004.
www.aph.gov.au/Senate/committee/freetrade_ctte/report/interim/index.htm

Senate Select Committee
www.aph.gov.au/Senate/committee/freetrade_ctte/index.htm

A select list of submissions to the Committee referring to IP issues.
[See also the full list of submissions.]
Submissions closed 30 April, hearings finished early July 2004.

Dr Philippa Dee, "The Australia-US Free Trade Agreement - An Assessment", APSEG at ANU, prepared for Senate, June 2004
www.aph.gov.au/Senate/committee/freetrade_ctte/report/DeeftaReport.pdf

Transcript of Senate Foreign Affairs, Defence and Trade Legislation Committee, 2 March 2004, (Negotiator Stephen Deady on copyright aspects of the FTA negotiations from p.13; Senators Conroy, Hill, Cook)

Earlier DFAT responses, above.
www.aph.gov.au/Senate/committee/freetrade_ctte/qon/060704.pdf

Joint Standing Committee on Treaties, Inquiry into the Free Trade Agreement between Australia and the USA (JSCoT).

Report of JSCoT, 23 June 2004.

Some relevant submissions to JSCoT.
(Thanks to Dr Roger Clarke for the original of this list).
Submissions closed 13 April.

University and library Sector

Public interest

Software and related industries

Governments

Other materials about the A-US Free Trade Agreement

Australian commentary

Linda Weiss, Elizabeth Thurbon and John Mathews, How to Kill a Country: Australia's Devastating Trade Deal with the United States (Allen & Unwin paperback 204pp) ISBN 1741145856, 2004.

Joint submission by Australian Digital Alliance and the ALCC in relation to Fair Use, August 2004 [DOC]
http://www.digital.org.au/submission/subfairuseRuddock.rtf

Jeremy Malcolm, 'Dark Shadows of the Australia-United States Free Trade Agreement:
"Free trade" sounds like a good thing. Apart from a few farmers, surely nobody could have a problem with it... could they?', Ilaw
http://www.ilaw.com.au/public/ftaarticle.html

[unknown]" Implications of the Free Trade Agreement between the US and Australia on digital rights management", hosted at Smart Internet Resource Centre User-Centred Design (UCD) Project, PPT
http://www.ucd.smartinternet.com.au/Docs/Digital%20Rights%20and%20the%20FTA.ppt

Dr Roger Clarke, 'The Economic and Cultural Impacts of the Free Trade Agreement Provisions relating to Copyright and Patent Law', revised 27 April 2004. Includes references to other materials including the JSCT submissions.
www.anu.edu.au/people/Roger.Clarke/II/FTA17.html

Australian APEC Study Centre, 'US Free Trade Agreement – New Opportunities and Impacts' conference, March 2004. See also their 2001 analysis for DFAT of FTA implications for Australia, "Annexe 4: Information and Communications Technology"
www.apec.org.au/fta04.asp

Australian Digital Alliance (ADA) Statement of Principles on the FTA, March 2004
www.digital.org.au/downloads/Statement%20of%20Principles.doc

'Australian Interest' links to other FTA pages
www.australianinterest.com/AUSFTA/

Australian Library and Information Association (ALIA) Submission, December 2003
alia.org.au/advocacy/submissions/bilateral.trade.briefing.html

Sue Bushell, "FTA Exposes Government and Business To Risk", CIO magazine, 25 March 2004
www.cio.com.au/index.php?id=73216673

FTA and patent related links, from Doctors Reform Society
www.drs.org.au/articles/2004/FTA/Doc/DRS%20Website%20AUSFTA.htm

Electronic Frontiers Australia's FTA and IP material includes submissions and a position paper, "Intellectual Property and the AU-USA Free Trade Agreement", 19 April 2004
ww.efa.org.au/Publish/ipfta-paper.html
See also ' Urgent copyright reform needed to counter FTA', EFA Media Release, 18 August 2004

Emma Caine, Prof. Andrew Christie and Peter Eckersley (IPRIA), 'Copyright protection 70 years after death does not encourage creativity', December 2003
www.onlineopinion.com.au/view.asp?article=889

Ergas Report section on cost-benefit analysis of term extension (Final report by the Intellectual Property and Competition Review Committee to Senator Minchin, Minister for Industry, Science and Resources, and Hon Daryl Williams, Attorney-General), September 2000
www.ipcr.gov.au/finalreport1dec/introcopy.htm#_Toc498833545

Centre for International Economics (private company operating out of Canberra and Sydney), Economic Analysis of AUSFTA: Impact of the bilateral free trade agreement with the United States, report on modeling on behalf of the Australian government, April 2004
www.intecon.com.au/index2.htm
www.intecon.com.au/reports/AUSFTA.pdf

Kimberley Weatherall's 'Weatherall's Law: An Intellectual Property Blog from Oz' weatherall.blogspot.com has updated commentary and references on the FTA, submissions and inquiries, the extension of copyright criminal offences, patents and related issues. For instance, "Some points from the Free Trade Agreement in relation to IP," 4 March 2004
http://weatherall.blogspot.com/2004_03_01_weatherall_archive.html#107835617383172814

Linux Australia, "The FTA - Bad for Open Source? The Free Trade Agreement Threatens to Lock Software Patents and Anti-Circumvention Measures into Australian Law" www.linux.org.au/fta
"US-Australia 'Free' Trade Agreement and Open Source" position paper, April 2004, linux.org.au/papers/fta-paper.html, and a petition

See also Dr Andrew Tridgell (open source software advocate and author of Samba and Rsync software tools for Linux and Unix), 'FTA disastrous for Australian computer industry and users', July 2004, samba.org/~tridge/fta_statement.html

Brendan Scott, Comparison of existing Australian copyright and patent law and Free trade Agreement requirements affecting software,
linux.org.au/papers/fta_comparison_table_040322.pdf

Project Gutenburg Australia petition on copyright extension, April 2004
gutenberg.net.au/protest.txt

Alan Oxley, AUSTA (Australia-US FTA business group) director,"AUSFTA – A 'Plus' Agreement", March 2004, www.apec.org.au/docs/fta04oxley.pdf

Internet Industries Association media release, "Minister's Comments to Internet Industry on Free Trade Agreement 'Significant and Reassuring' ", 16 February 2004
www.iia.net.au/news/030204.html

Australian Writers Guild, Australian Screen Director's Association, Media Entertainment and Arts Alliance, Screen Producer's Association of Australia media release, "Free trade agreement – Australia’s cultural industries lose out?", 10 February 2004
www.cdc-ccd.org/Anglais/Liensenanglais/nouveautes_eng/press_release_australia.html

APRA report of FTA release, February 2004
www.apra.com.au/NewsFeat/FreeTradeAgreement.htm

EFA, "EFA dismayed by IP Clauses of Free Trade Agreement"', February 2004
www.efa.org.au/Publish/PR040212.html

APRA/AMCOS/AMPAL, "Music industry professionals agree: change private copying laws", release supporting private copying rights with blank media levy, November 2003
www.screen.org/PressReleases/private_copy.pdf

International commentary on related issues

American-Australian Free Trade Agreement Coalition (AAFTAC) [American equivalent of AUSTA?], media releases on FTA benefits for US as exporter of IP
www.aaftac.org/

Citizen's Trade Campaign, A-US FTA page
http://www.citizenstrade.org/australia.php#Other%20Organizational%20Websites

DRM Watch, "Free Trade Agreement Brings New Copyright Laws to Australia", 12 February 2004
"Australia had heretofore not adopted copyright legislation that brings the country into line with the WIPO copyright treaties of 1996, on which both DMCA and the European Copyright Directive (EUCD) are based. Both DMCA and EUCD contain anti-circumvention provisions and other elements present in the U.S.-Australian FTA."
www.drmwatch.com/legal/article.php/3311921

Jonathan Band, "Analysis of Digital Millennium Copyright Act" for Home Recording Rights Coalition (US),
www.hrrc.org/dmca/analysis.html

EFF (US), "Unintended Consequences: Four Years under the DMCA", 2002
www.eff.org/IP/DRM/DMCA/20030102_dmca_unintended_consequences.html

Pamela Samuelson, "Anti-circumvention Rules: Threat to Science" Science, Vol 293, Issue 5537, 2028-2031, 14 September 2001
www.sciencemag.org/cgi/content/full/293/5537/2028

'US Entertainment Industry Coalition For Free Trade Hails US–Australia Free Trade Agreement', February 2004 www.aaftac.org/eic.htm

 

Media and releases

[See also media on the November amendments above.]

'Take Down Notices set to bite', Dearne K, The Australian IT, 30 November 2004
australianit.news.com.au/articles/0,7204,11538653%5E15318%5E%5Enbv%5E15306,00.html

Sam Varghese "Patently Yours", The Age, November 26, 2004
www.theage.com.au/news/Technology/Patently-yours/2004/11/25/1101219671693.html?from=storylhs

Ross Gittins, "Labor, And We, Will Live to Regret US Trade Deal", Sydney Morning Herald, November 22, 2004
www.smh.com.au/news/Ross-Gittins/Labor-and-we-will-live-to-regret-US-trade-deal/2004/11/21/1100972255945.html

Archive of media coverage of A-US FTA, frequently updated
www.tradewatchoz.org/AUSFTA/Media.html

'US House approves free trade pact', SMH, July 15, 2004
http://www.smh.com.au/articles/2004/07/15/1089694452858.html

'Parliament approves FTA', AAP - SMH Online, August 13 2004, 1:39PM
smh.com.au/articles/2004/08/13/1092340442349.html

'US may not approve revised FTA', ABC Radio AM, Friday 13 August, 2004 08:20
www.abc.net.au/am/content/2004/s1175797.htm

Ross Gittins,'Selling off a slice of our country', SMH, August 11 2004
smh.com.au/articles/2004/08/10/1092102450919.html

'Howard to look at FTA amendments', ABC TV The 7.30 Report (transcript), 9 August 2004
www.abc.net.au/7.30/content/2004/s1172512.htm

Ross Gittins, 'FTA: bad politics drives out good economics', SMH, August 9, 2004
www.smh.com.au/articles/2004/08/08/1091903446058.html

'Howard gives ground to salvage FTA', Mark Davis, Australian Financial Review, August 6, 2004
afr.com/articles/2004/08/05/1091557995245.html

'Software groups warn of FTA dangers', SMH, 6 August 2004 www.smh.com.au/articles/2004/08/06/1091732077487.html

'Australian Linux bodies blast US free-trade deal', ZDNet Australia, 6 August 2004
www.zdnet.com.au/news/business/0,39023166,39155631,00.htm

'Concerns about FTA rouse IT industry', IT News Australia, 5 August 2004
www.itnews.com.au/storycontent.asp?ID=3&Art_ID=20921

'Trade deal deadlocked on medicines', The Age, 4 August 2004
www.theage.com.au/articles/2004/08/03/1091476492479.html at [9]ff

'Samba developer fears free trade agreement will lead to "patent war"', Computerworld, 2 August 2004
computerworld.co.nz/news.nsf/0/6EA2C93DA87BE260CC256EE400099206?OpenDocument

Declan McCullagh, “Trade deal exports DMCA down under”, August 3, 2004
news.com.com/Trade+deal+exports+DMCA+down+under/2100-1028_3-5291283.html

ALP Media Statement, 'Australia-United States Free Trade Agreement', Mark Latham and Stephen Conroy, 3 August 2004
www.alp.org.au/media/0804/20008104.html

'Latham talks tough on FTA', News.com.au August 3, 2004
www.news.com.au/common/story_page/0,4057,10326507%255E421,00.html

'More good than bad in US deal: Latham', SMH, August 3 2004
www.smh.com.au/articles/2004/08/03/1091476446932.html?oneclick=true

'Don't let US block cheap drugs, senators warn', Mark Metherell, Matt Wade and Aban Contractor, August 3, 2004 (referring to proposed patent restrictions)
www.smh.com.au/articles/2004/08/02/1091432114788.html

Ross Gittins, “Trade deal a free kick for US software racketeers”, August 2 2004
www.smh.com.au/articles/2004/08/01/1091298576840.html?oneclick=true

“Senate Committee backs FTA overall”, ABC Radio PM broadcast, 2 August 2004, 6:10pm
www.abc.net.au/pm/content/2004/s1167267.htm

'Software's game of mutually assured damage', Ross Gittins (damning the abuse of software patents), July 31 2004
www.smh.com.au/articles/2004/07/30/1091080437270.html

Intellectual property rights out of tune with public interest, Ross Gittins, SMH, July 24 2004
www.theage.com.au/articles/2004/07/23/1090464859797.html?oneclick=true

'Developer Spotlight: Richard Stallman - His achievements, the Free Software movement and his concerns with the US-Australian Free Trade Agreement', 21 July 2004, Builder.com.au
www.builderau.com.au/program/0,39024614,39130008,00.htm

'US House approves free trade', SMH, 15 July 2004
www.smh.com.au/articles/2004/07/15/1089694452858.html

Kenneth Davidson, 'Why rush the FTA?', Fairfax press, July 1
www.theage.com.au/articles/2004/06/30/1088488024218.html

James Riley, "Big FTA stoush brewing on copyright" (Prof. Lessig was to appear before Senate in July), 29 June 2004
www.news.com.au/common/story_page/0,4057,9983163%255E15306,00.html

Reports of the FTA enabling bills being passed in the House of Representatives, 24 June 2004
www.news.com.au/common/story_page/0,4057,9947058%255E1702,00.html
www.abc.net.au/news/newsitems/200406/s1140311.htm

Abby Dinham, 'AU music industry body attacks ISPs over copyright stance' (Michael Speck's submission to the Senate committee), ZDNet Australia, 16 June 2004
www.zdnet.com.au/news/business/0,39023166,39150665,00.htm

Sam Varghese, 'ACS set to call for open source take-up', The Age, April 29, 2004
"The FTA's intellectual property provisions seek to harmonise Australia's copyright and patent laws with those of the US. Should Australia adopt the US approach, the interoperability of data would be made illegal and the consequences of copyright and patent infringement would be escalated. The former could effectively exclude open source developers from competing in the software marketplace. The latter would severely limit the ability of small companies, as well medium and large companies who do have cross-licensing agreements, from competing due to the weight of compliance costs."
theage.com.au/articles/2004/04/29/1083103604961.html

Radio JJJ, interview with Stephen Peach of Australian Recording Industry Association, "ARIA staff getting 30 free CDs each per month", P2Pnet, April 2 2004
p2pnet.net/story/1150 http://rocknerd.org/print.pl?sid=04/04/05/0735240

“FTA critic says intellectual property provisions favour US companies”, ABC Radio The World Today, Thursday, 4 March, 2004 12:14 pm
www.abc.net.au/worldtoday/content/2004/s1058783.htm

Steve Cannane, "Music industry way off track with song and dance about falling sales" - Figures show that we're buying albums in record numbers, despite the internet 'freeloaders', SMH, March 29, 2004
www.smh.com.au/articles/2004/03/28/1080412234274.html

Jon Casimir, "Four apparently Air-less places - the bizarre, illogical world of copy-controlled CDs", SMH, March 13, 2004
www.smh.com.au/articles/2004/03/12/1078594558313.html