inamerrata

Motion

That the Committee recommend that the Senate agree to the Australia-US Free Trade Agreement Implementation Bill.

For: Senators Cook, Conroy, O’Brien, Brandis, Ferris, Boswell

Against: Senators Ridgeway, Harris

Summary of Senate inquiry into the FTA

Told you so.

me, right here, right now

Actually, I probably haven’t told you so, gentle reader (and the link above is to a subscribers only archive at that, so arguably I still haven’t), since I restricted my Cassandra-esque whining to the various folks still actively campaigning against the FTA. That’s a pretty bright collection of people, all of whom I respect pretty highly, so I don’t really like disagreeing with them, least of all when they’ve got more facts at hand than I do, and it’s on a subject I’m at least as clueless about as any of them.

But hey. Unlike the various negative takes on the FTA you’ll get from the sad sacks above, I think we (meaning either open source d00ds or Australians) have actually come out pretty well. This is probably a character flaw more than anything: if it comes to a choice between being an optimist and a realist, I’ll choose optimism, thanks. But before we get to that, let’s get the compulsory negativity out of the way to start with.

First, Australia didn’t have the upper hand in the bargaining. The US government (in general and the Bush administration in particular) are generally supportive of free trade, and want to give .au a kickback for the support in foreign policy, but that’s only enough leverage for us to get minor benefits; meanwhile the US economy’s huge and attractive, and the US alliance and free trade (and associated economic liberalisation) are pretty high priorities for the Howard government. It happens, and there’s probably nothing that could’ve been done about it, but hey, why can’t Australia be the world hyperpower for a change?

Second, the negotiators weren’t properly informed about IP issues, probably amongst others (negotiating a better deal on visa issues for business people comes to mind). The IP issues are difficult to be informed about as the CIE report probably demonstrates, but even basic measures like waiting for the Digital Agenda review to be finished and basing the FTA bargaining position on its conclusions weren’t taken. That’s not just ignoring proper democratic processes, it’s throwing away a bargaining chip. Heck, if the negotiations need to be wound up, get the guys doing the report to hurry up or issue an interim report, or something. IP is important; it mightn’t be the be-all and end-all of everything, but it needs more consideration than it was given by the negotiators. That’s been remedied by both committees reviewing the legislation, but that’s too late for useful, substantive changes to the agreement.

Anyway, that said, it’s not too late in general — after all, will we not fight ’til from our bones our flesh be hacked? Implementing the FTA doesn’t take us that far from our existing copyright regime — modchipping is already illegal (pending possible High Court review), open source DVD players are already presumably in violation of anti-circumvention measures if you import or distribute them (untested in courts), and there are all sorts of other inaninities like it being a copyright violation to forward email, or use your VCR to tape a TV program or your iPod to listen to mp3s of CDs you’ve bought (again none of these have been tested in court, ttbomk). Australia’s stance on patents doesn’t change much at all, we introduce a couple of new criminal provisions for copyright violations, we close a couple of loopholes related to circumvention devices, and we suffer potential pushback from the US if we change these things. All that’s pretty much a wash, afaics, we were in a bad state before, we’re in a slightly different bad state now, but we’re not going to be crushed by glaciers the moment this legislation passes.

So, with that out of the way, what’s the good news? First is that people are paying attention. That didn’t happen twelve months ago during the, now somewhat obsoleted, review of the Digital Agenda Act; it is happening now. That’s a major triumph: last year, the only people who were on top of copyright stuff in Australia were the corporate guys with their $20,000 per month Canberra lobbiests and plots to get an extra thirty million dollars per year out of the pockets of people buying blank CDs. If you aren’t playing the game — or don’t even know the rules — you’ve got no chance of winning; we weren’t then, we are now.

The most obvious way in which we’re winning is in the serious consideration of “fair use” rights. Last time this came up was in 1998, by the Copyright Law Review Committee, which at the time recommended we broaden (or augment) our fair dealing provisions along the lines of the US fair use provisions. That recommendation went nowhere. Now we’ve got support for fair use from the government, via the JSCT committee; and support for fair use from the opposition, via the Senate committee:

3.117 […] The Committee is of the view that the application of a broad, open-ended ‘fair use’ doctrine, similar to that in the United States, may resolve this long-standing legal anomaly in Australian copyright law and assist in legitimising several commonplace actions undertaken regularly by Australians perhaps unaware that they are infringing copyright.

(Copynorms is the word you’re looking for, guys)

Bipartisan support? Check. Topical issue? Check. Upcoming election? Check. If you’ve made it this far through the post, you’re obviously seriously interested in these issues, so write to your local member and indicate your interest in IP issues and that you hope that if re-elected he or she will be looking out for you. Or write to some of the challengers, or your senators, or all of them. There ain’t no time like the present. Well, unless you like the sound of being an “iPod outlaw”, of course.

Because hey, it’s not like the pigopolists aren’t acting, what with their lame ads, dodgy reports and unreasonable posturing:

3.113 The Australian Record Industry Association (ARIA) expressed strong opposition to the introduction of a US-style ‘fair use’ exemption and argued that, amongst other things, it would constitute ‘an unjustified abrogation of the rights of copyright owners’ and would ‘significantly increase enforcement difficulties’.

Doing open source circumvention devices (eg, playing region coded DVDs, whether coded for Australia or elsewhere, and viewing/printing “protected” PDFs) is a trickier issue. We’ve got lots of support for fair use: if the Liberals back off on their recommendations, Labor can take them to task for it, and vice-versa; but for anti-circumvention, we’ve got a lot of problems all of which have to be successfully tackled.

Problem number one is convincing DFAT to do anything about it. They don’t want to, and the recommendations from the committees about the issue aren’t really very strong: JSCT only talks about region coding, and afaics the Senate committee doesn’t make any specific recommendations at all. It’s not even clear that they can do anything about it; the FTA itself is ambiguous at best, so we’ve got to rely on the repeated assurances made before the two FTA committees. Keeping our representatives involved, and pressuring the department is a very necessary first step.

But that probably only gets us a process in place. The US has a process for seeking exemptions, and it alone doesn’t really do them that much got. So once we’ve got the process up and running, we have to actually use it, and probably iron out the inevitable bugs in any complicated first release system; and that’ll likely require actual work, rather than just writing letters and complaining. We’ll likely need some supportable estimates of the effect of not being able to play DVDs or read PDFs on Linux, ideally dollar figures, but anything numeric really.

Then, once we’ve gone through that process, we still need to make sure that the US doesn’t decide that Linux is evil, and try to make Australia stop being sensible. That means making sure we Linux hax0rs in Australia don’t look like pirates (or the semi-respectable political front for pirates), and, ideally that there continues to be some momentum behind things like the DMCRA in the US, so that both the US and Australia (and all the countries that end up with templatised FTA’s with the US) march in lock-step into the world of sensible copyright where candy and rainbows abound.

But hey, we can actually win on all that: the issue’s been raised before the relevant committees, and folks from all parties are giving the concerns some serious attention. That’s more than fair use managed when it was recommended by the CLRC — and it’s probably more than what we could’ve expected from the Digital Agenda review’s recommendations if the FTA hadn’t come along and made the appropriate folks sit down and pay attention to this issue.

Also interesting is some of the measures we’re getting on temporary reproductions. Gone are the weird provisions about “material form” and “in the course of a communication”, and no we can just make “incidental reproductions” pretty much whenever we feel like. Yay for not having to worry about getting copyright owners permissions everytime you want to use a cache, a proxy, swap, or a ram disk!

There are other issues, of course: takedown notices, criminal liability for copyright infringement, and the ever-worrying question of what to do about software patents. Someday we’re going to have to get rid of them entirely presumably, but geez, talk about daunting.

(Hey, if I’m not going to be writing release updates anymore, there’s got to be something long and tedious I can write about…)