The Australia-US free trade agreement’s impact on Australia’s copyright trade policy

Abstract

The Australia-US Free Trade Agreement (AUSFTA) required extensive changes to Australian copyright law. This paper assesses the impact of these changes one decade on. It considers, first, whether the costs and/or benefits predicted in 2004 have eventuated, finding clear evidence that AUSFTA has undesirably constrained domestic copyright policy, but no clear evidence either of the feared financial costs to society, or, importantly, the touted benefits to copyright owners. The most significant impact of AUSFTA’s copyright provisions, however, appears to have been on Australia’s copyright trade policy. Pre-AUSFTA, Australia promoted multilateral standards and mostly sought to comply with, but not exceed, international IP standards. Post-AUSFTA, Australia has pursued an approach akin to that of the US: endorsing international copyright rules that are significantly stronger, and more detailed. The paper queries whether this shift has been in Australia’s national interest, and raises interesting questions of path-dependence in policymaking and trade negotiations that warrant more, and broader attention in the literature.

Keywords:

• AUSFTA
• copyright
• policy
• trade agreements

Disclosure statement

Kimberlee is a member of the board of the Australian Digital Alliance, a non-government body which advocates for balanced copyright law and represents a range of stakeholders including schools, universities, libraries, galleries, and technology companies. Kimberlee has no financial interest or benefit arising from the direct applications of this research.

Notes

1. Following vigorous debate, the government chose not to pursue legislation making ISPs liable for their infringing customers, instead requiring ISPs and copyright owners to negotiate an Industry Code of Practice to enable educative infringement notices generated by copyright owners to be passed on to customers. At the time of writing, a draft Code of Practice was being reviewed by the Australian Communications and Media Authority.

2. The 2002 decision of the Copyright Tribunal moved the schools from a ‘per student’ copying rate to a ‘per page’ rate; it also increased the fees payable. The move to a per page rate appears, according to evidence given by the Copyright Advisory Group to the Australian Law Reform Commission Inquiry into Copyright and the Digital Economy, to have increased the rate at which the schools’ copyright costs have been increasing over time.

3. ‘IP trade’ as documented by IP Australia consists of tracking three channels: ownership (purchases of technology from owners abroad—aggregate of international R& D investment, patent assignments and investment in high technology companies), licences (international payments of royalty and licence fees), payments for ‘high tech’ goods where the buyer and manufacturer are in different countries.

4. Spotify launched in Sweden in 2008, in the UK in 2009, in the US in 2011 and in Australia in 2012. Pandora Internet Radio launched in the US in 2008 and in Australia in 2012.

5. Although this is at odds with the fact that copyright term extension was also included in the Singapore agreement of 2003.

6. Interestingly, Australia did conclude an agreement of this sort in the post-AUSFTA period: chapter 13 of the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, signed 27 February 2009, [2010] ATS 1 (entered into force 1 January 2010). However, this is a regional framework agreement involving many other countries with their own distinct negotiating stance and IP systems. This means we can glean relatively little about Australia’s particular position from AANZFTA IP text alone. Chapter 13 of AANZFTA contains some minimal IP standards, but more provisions on cooperation, transparency, and the establishment of a Committee to monitor implementation and administration of the chapter.

7. Article 4 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a most favoured nation obligations specifically relating to IP. Unlike other MFN obligations in the World Trade Organization suite of agreements, there is no regional trade agreement exception to MFN in relation to IP.

8. The particular vector of causation is interesting but beyond the scope of this paper. On one view, having justified AUSFTA, DFAT had incentives to present and propagate the AUSFTA approach almost regardless of whether they thought it was a good idea, in order to appear consistent and not undermine public perceptions of their competence in the AUSFTA negotiations. Alternatively, DFAT have genuinely become convinced, or have convinced themselves, that this approach is in the national interest.

Additional information

Funding

This paper is based on research supported by a Sydney Law School Legal Scholarship Support Fund grant.