Australian Centre for Intellectual Property and Agriculture
Conference: 'Copyright: Unlucky for Some'

Opening Address

Minter Ellison Offices, Level 22, Waterfront Place, Brisbane
9:30am, Friday, 13 February 2004

CHECK AGAINST DELIVERY

ACKNOWLEDGEMENTS

1. FIRSTLY, MAY I ACKNOWLEDGE THE TRADITIONAL OWNERS OF THE LAND WE MEET ON - THE YUGGARA/TURRABUL PEOPLE - AND PAY MY RESPECT TO THEIR ELDERS, BOTH PAST AND PRESENT.

OTHER ACKNOWLEDGEMENTS

• PROFESSOR BRAD SHERMAN AND MS LEANNE WISEMAN - CONVENORS OF THE CONFERENCE.
• THE HONOURABLE DOUG DRUMMOND QC.
• ESTEEMED MEMBERS OF THE COPYRIGHT COMMUNITY.

INTRODUCTION

2. THE THEME FOR THIS CONFERENCE IS 'COPYRIGHT: UNLUCKY FOR SOME'.
BUT I DO NOT FEEL AS THOUGH I FIT INTO THAT CATEGORY.
ON THE CONTRARY, I CONSIDER MYSELF VERY FORTUNATE TO BE WITH YOU TODAY.

CHALLENGES IN COPYRIGHT LAW

3. SINCE BECOMING ATTORNEY-GENERAL I HAVE FOUND COPYRIGHT TO BE AN INTERESTING AND DYNAMIC AREA OF THE LAW.
IT HAS AN ENORMOUS INFLUENCE ON OUR DAILY LIVES.

4. THE GOVERNMENT HAS IN PLACE A VERY ACTIVE AND REFORMING COPYRIGHT AGENDA DRIVEN LARGELY BY NEW TECHNOLOGY.

5. DIGITAL COPYRIGHT ISSUES ALSO RECEIVED A HIGH LEVEL OF ATTENTION IN OUR FREE TRADE NEGOTIATIONS WITH THE UNITED STATES.

AUSTRALIA'S COMMITMENT TO MULTILATERAL AND BILATERAL AGREEMENTS

6. THE NEGOTIATION OF BILATERAL AGREEMENTS THAT INCLUDE INTELLECTUAL PROPERTY SOMETIMES RAISES ISSUES ABOUT OUR ATTITUDE TO THE MULTILATERAL SYSTEM.
I WANT TO SAY CLEARLY THAT WE ARE STRONGLY COMMITTED TO THE MULTILATERAL SYSTEM FOR THE DEVELOPMENT OF AGREED STANDARDS OF COPYRIGHT PROTECTION.

7. WE SUPPORT THE WORK OF THE WORLD INTELLECTUAL PROPERTY ORGANISATION AND THE WORLD TRADE ORGANISATION.
WE EXPECT THESE BODIES TO CONTINUE TO BE THE PRE-EMINENT FORUM FOR THE INTERNATIONAL COPYRIGHT AGENDA AND THE  RESOLUTION OF INTERNATIONAL COPYRIGHT ISSUES.

8. THIS VIEW DOES NOT CONFLICT WITH PURSUING HARMONISATION ISSUES BILATERALLY.
I SEE NO REASON WHY AUSTRALIA SHOULD NOT WORK ON A BILATERAL LEVEL ON ISSUES THAT ARE IMPORTANT TO US INCLUDING COPYRIGHT.
SO LET ME SAY A FEW WORDS ON THE UNITED STATES FREE TRADE AGREEMENT.

FREE TRADE AGREEMENT WITH THE UNITED STATES

9. THE AGREEMENT CONTAINS A CONSIDERABLE NUMBER OF PROVISIONS ON COPYRIGHT; THE SCOPE AND NATURE OF PROTECTION AND ON ITS ENFORCEMENT. 

10. THERE ARE OBVIOUSLY DIFFERENCES BETWEEN AUSTRALIA AND THE UNITED STATES ON MATTERS OF DETAIL. 
BUT, OVERALL, BOTH COUNTRIES SHARE THE SAME BROAD APPROACH TO COPYRIGHT LAW.
 
11. BOTH OUR LEGAL SYSTEMS ARE BASED ON THE COMMON LAW.
BOTH HAVE STRONG ENFORCEMENT REGIMES.
AND BOTH PROVIDE FOR HIGH LEVEL PROTECTION OF COPYRIGHT.

12. THE NEGOTIATIONS INVOLVED A CLOSE AND AT TIMES INTENSE DIALOGUE ON A RANGE OF COPYRIGHT ISSUES.
OF COURSE, EACH SIDE BROUGHT TO THE TABLE INDIVIDUAL VIEWS ABOUT THE BEST APPROACH TO SPECIFIC ISSUES. 
IN THE END, WE NEEDED TO AGREE OVER ISSUES AND, AS IN ANY NEGOTIATION, THERE WAS THE NEED FOR CHANGE AND COMPROMISE. 

13. MY EXPECTATION IS THAT THE AGREEMENT WILL BENEFIT BOTH AUSTRALIA AND THE UNITED STATES.
IT WILL HELP US TO REAP THE BENEFITS THAT FREE TRADE OFFERS.
AND IT WILL FURTHER REINFORCE THE ECONOMIC RELATIONS BETWEEN OUR COUNTRIES.

14. THE AGREEMENT WILL RESULT IN SOME IMPORTANT CHANGES TO OUR LAW.

15. THESE INCLUDE A NOTICE REGIME FOR INTERNET SERVICE PROVIDERS, TIGHTER PROVISIONS FOR TECHNOLOGICAL PROTECTION MEASURES, A WIDER RANGE OF CRIMINAL SANCTIONS AND EXTENSION OF THE COPYRIGHT TERM. 

16. WE HAVE ALSO AGREED TO JOIN THE WORLD INTELLECTUAL PROPERTY ORGANISATION'S PERFORMANCES AND PHONOGRAMS TREATY, AND COPYRIGHT TREATY, BY THE DATE OF ENTRY INTO FORCE OF THE AGREEMENT. 

17. LATER TODAY STEPHEN FOX FROM MY DEPARTMENT WILL BE DISCUSSING THE NEGOTIATIONS IN SOME DETAIL.

TERM OF EXTENSION

18. BUT IT IS IMPORTANT THAT I SAY SOMETHING ABOUT AUSTRALIA'S AGREEMENT TO INCREASE THE TERM OF PROTECTION FOR COPYRIGHT WORKS BY AN ADDITIONAL 20 YEARS. 

19. AUSTRALIA GENERALLY DOES NOT ADVOCATE HIGHER STANDARDS OF INTELLECTUAL PROPERTY PROTECTION THAN THOSE DETERMINED INTERNATIONALLY.  
HOWEVER, IT IS SOMETIMES IN AUSTRALIA'S INTEREST NOT TO LAG BEHIND EMERGING STANDARDS OF IMPORTANT TRADING COUNTRIES. 

20. IT IS CLEAR THAT AN INTERNATIONAL STANDARD IS EMERGING AMONGST OUR MAJOR TRADING PARTNERS FOR A LONGER COPYRIGHT TERM. 

21. IN THESE CIRCUMSTANCES, TERM EXTENSION IS A NECESSARY AND POSITIVE THING.
IT WILL ENSURE AUSTRALIA REMAINS A COMPETITIVE DESTINATION FOR CULTURAL INVESTMENT.
IT WILL ALSO ENSURE THAT AUSTRALIANS ARE BETTER ABLE TO TRADE THEIR INTERESTS IN AN INCREASINGLY GLOBAL MARKET.

22. NOW LET ME TURN TO OTHER ISSUES. 

NEW REFERENCE TO THE COPYRIGHT LAW REVIEW COMMITTEE

23. IN NOVEMBER LAST YEAR I ANNOUNCED A NEW REFERENCE FOR THE COPYRIGHT LAW REVIEW COMMITTEE. 

24. THE INQUIRY WILL EXAMINE WHETHER THE POLICY BASIS FOR GOVERNMENT OWNERSHIP OF COPYRIGHT MATERIAL IS STILL JUSTIFIED.
AMONGST OTHER THINGS, IT WILL EXAMINE WHETHER THE PUBLIC IS INTERESTED IN HAVING GREATER ACCESS TO GOVERNMENT COPYRIGHT MATERIAL AND THE EFFECT ON NEW TECHNOLOGIES.

25. I UNDERSTAND THE COMMITTEE PUBLISHED AN ISSUES PAPER YESTERDAY AND IS CALLING FOR SUBMISSIONS.

26. I URGE YOU ALL TO CONSIDER THE ISSUES PAPER AND PARTICIPATE IN THE CONSULTATIONS THAT THE COMMITTEE WILL BE CONDUCTING.

ELECTION COMMITMENTS

27. THE GOVERNMENT'S COPYRIGHT REFORMS EXTEND WELL BEYOND FREE TRADE AGREEMENTS AND GOVERNMENT COPYRIGHT.

28. AND I AM PLEASED TO SAY THAT CONSIDERABLE PROGRESS HAS BEEN MADE IN IMPLEMENTING THE GOVERNMENT'S REFORM AGENDA. 

ONLINE PIRACY/FILE SHARING/DIGITAL AGENDA REVIEW

29. THE GOVERNMENT RECOGNISES THAT THE OWNERS OF COPYRIGHT ARE CONCERNED ABOUT THE MISUSE OF DIGITAL TECHNOLOGY.
THE INTERNET GENERATES THE MOST OBVIOUS CONCERNS.
 
30. COPYRIGHT LAW IS ALSO THREATENED BY EXISTING COPY TECHNOLOGIES SUCH AS CD BURNING DEVICES, AS WELL AS FUTURE TECHNOLOGICAL DEVELOPMENTS.

31. IT IS THE NEED FOR FLEXIBLE AND RESPONSIVE LAWS THAT LED THE GOVERNMENT TO INTRODUCE THE DIGITAL AGENDA AMENDMENTS TO THE COPYRIGHT ACT IN 2001.

32. WE WANTED TO ENSURE THAT OUR COPYRIGHT LAWS CONTINUED TO PROMOTE CREATIVE ENDEAVOUR YET ALSO ALLOW REASONABLE ACCESS TO COPYRIGHT MATERIAL AVAILABLE THROUGH NEW TECHNOLOGIES.

33. WE AGREED THEY SHOULD BE REVIEWED WITHIN THREE YEARS.

34. PART OF THIS REVIEW HAS BEEN CARRIED OUT INDEPENDENTLY BY THE LAW FIRM OF PHILLIPS FOX.

35. I UNDERSTAND THERE WILL BE A PRESENTATION LATER ON ABOUT THAT PORTION OF THE REVIEW.
WITHOUT PRE-EMPTING THAT PRESENTATION, I WOULD LIKE TO SAY THAT THE KEY PURPOSE OF THE REVIEW IS TO ASSESS WHETHER THE OBJECTIVES OF THE DIGITAL AGENDA REFORMS HAVE BEEN ACHIEVED.
NATURALLY, WE WILL ALSO LOOK AT INTEGRATING THE CONCLUSIONS OF THE REVIEW WITH THE OUTCOMES OF THE FREE TRADE AGREEMENT.

INDIGENOUS COMMUNAL MORAL RIGHTS

36. THE GOVERNMENT IS ALSO CURRENTLY WORKING ON AMENDMENTS TO THE COPYRIGHT ACT WHICH WILL GIVE EFFECT TO 'INDIGENOUS COMMUNAL MORAL RIGHTS'.
THESE RIGHTS WILL ASSIST IN PROTECTING THE INTEGRITY AND SANCTITY OF INDIGENOUS CULTURE. 

37. AN EXPOSURE DRAFT BILL WAS RELEASED ON A LIMITED BASIS IN DECEMBER 2003.
I UNDERSTAND THERE HAVE BEEN A GOOD NUMBER OF RESPONSES AND GENERALLY POSITIVE FEEDBACK.

38. I LOOK FORWARD TO GETTING A REPORT ON SENATOR RIDGEWAY'S ADDRESS TO THE CONFERENCE ABOUT THIS LEGISLATION. 

MORAL RIGHTS

39. ANOTHER MATTER TO BE DISCUSSED TODAY IS THAT OF MORAL RIGHTS GENERALLY.
40. COMPREHENSIVE MORAL RIGHTS PROVISIONS WERE INTRODUCED INTO THE COPYRIGHT ACT IN 2000.
THE GOVERNMENT SAW THE NEW LEGISLATION AS PROMOTING GOOD PRACTICE AND EDUCATING THE COMMUNITY.

41. I UNDERSTAND THAT TO DATE THERE HAVE NOT BEEN ANY REPORTED COURT DECISIONS CONCERNING THAT LEGISLATION.

42. THAT SAID, THERE HAVE BEEN REPORTS OF DISPUTES THAT HAVE NOT GONE TO COURT IN WHICH AUTHORS HAVE INVOKED THE MORAL RIGHTS LEGISLATION.
SO THE ABSENCE OF LITIGATION DOES NOT MEAN THE LEGISLATION IS A TOOTHLESS TIGER.

43. ATTENDERS AT THE 2001 ANNUAL CONFERENCE OF THE INTELLECTUAL PROPERTY SOCIETY OF AUSTRALIA AND NEW ZEALAND WILL RECALL THAT MS ELISABETH LOGEAIS - A LAWYER PRACTISING IN FRANCE - GAVE A GENERALLY FAVOURABLE ASSESSMENT OF THE LEGISLATION.
THIS WAS PRAISE INDEED FROM THE PERSPECTIVE OF A COUNTRY WITH A LONG MORAL RIGHTS TRADITION.
 
44. IT GIVES ME CONFIDENCE THAT THE LEGISLATION WILL BE ABLE TO BE ADAPTED AND EXTENDED TO PERFORMERS.
PREPARATION OF THE NEW RIGHTS BILL, WHICH WILL IMPLEMENT THE NEW PERFORMERS' RIGHTS, IS PROGRESSING WELL. 

CONCLUSION

45. IT IS CLEAR THAT COPYRIGHT LAW AFFECTS ALL AUSTRALIANS ON MANY DIFFERENT LEVELS.

46. FROM FREE TRADE AGREEMENTS AND THE GROWTH OF INTERNATIONAL TRADE, RIGHT THROUGH TO THE PROTECTION OF INDIGENOUS COMMUNAL RIGHTS - COPYRIGHT LAW HAS A MAJOR INFLUENCE ON OUR LIVES.

47. I AM HEARTENED TO SEE SO MANY PEOPLE WITH A INTEREST IN COPYRIGHT LAW HERE TODAY.
AND I AM CONFIDENT THAT BY SHARING OUR IDEAS, EXPERTISE AND ENTHUSIASM, WE CAN ENSURE THAT COPYRIGHT - THE LAW AND THE PRACTICES BUILT ON THE LAW -  CONTINUES TO MAKE A VALUABLE CONTRIBUTION TO AUSTRALIAN LIFE.