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Submissions to JSCT re I.P.

The Free Trade Agreement Provisions in Chapter 17
relating to Copyright and Patent Law
Key Submissions to the Joint Committee on Treaties

Roger Clarke

Principal, Xamax Consultancy Pty Ltd, Canberra

30 April 2004

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Key Submissions to the JSCT

This section provides links to and quotations from Submissions made to the Joint Standing Committee on Treaties (JSCT) in March-April 2004.


20- State Library of Victoria, including "The Library would urge policy makers to review the AUSTFA proposals in the light of the cultural, legal and historical differences between Australia and the United States to ensure that the level and costs of material currently available in the public domain are not reduced in any way. Developments such as open source software and the creative commons cooperative both in Australia and overseas also indicate that creators and scholars in the education and cultural sectors do not support restrictive copyright laws"

71 - Australian Libraries Copyright Committee / Australian Digital Alliance, including:

115 - Council of Australian Librarians (CAUL), including:

142 - Australian Library & Information Association (ALIA), including:


63 - University of the Sunshine Coast, including "We are concerned about the impact of the differences between the 'fair use' provisions in the US law and the 'fair dealing' provisions in Australian law; [and] the extension of the term of copyright ... the result will be to destroy the current balance between the interests of copyright owners and users in favour of the owners. This will have disadvantageous effects on the Australian education industry ... We are concerned that the balance for copyright owners and users as expressed in the Australian Copyright Amendment (Digital Agenda) Act 2000 will be lost" (p. 1)

71 - Australian Digital Alliance / Australian Libraries Copyright Committee, including:

103 - Swinburne University, including:

117 - Macquarie University, including "the Higher Education sector in Australia stands to have certain rights eroded with the implementation of the FTA in its current form. In particular, the value of the 'fair dealing' provisions of the Australian Copyright Act would be adversely affected" (p. 1)

129 - National Tertiary Education Union (NTEU), including "The NTEU's general view ... is that [the FTA] will increase the costs borne by education institutions because of changes to intellectual property" (2, p. 1); and "The immediate impact of AUSETA when it comes into effect will be to increase the costs of tertiary education libraries, information services, and academic units teaching film and television courses. ... the problem caused by Australia's acceptance in AUSFTA of the American copyright standard has not been mitigated to date by the adoption of more liberal provisions, similar to those in the US, for copying for research and educational purposes" (3-4, p. 1)

Australian Vice-Chancellors Committee (AVCC), including "Australian universities believe there is a general potential for increased intellectual property related costs in dealings with the US should these failed to be adequately addressed in the FTA. The recent US push towards extending copyright protection by 20 years (the life of the author/creator plus 70 years, instead of 50 years as is currently the case) is a clear example of a likely increased cost for Australian universities, who are among the country's major importers of copyright material. Should the FTA result, out of a drive towards greater consistency, in a similar extension of copyright protection in Australia then the additional cost burden for universities would be even greater" (p. 2)

Public Interest

50 - Electronic Frontiers Australia (EFA), including "This pressure to extend copyright duration clearly comes not from a desire to promote innovation and enhance our nation's public domain, but rather from a corporate desire to enhance monopoly profits. In practice, given that the extra 20 years would be enjoyed long after the author's passing, it is large corporations that are most likely to benefit from the change"; "Building upon public domain material is a rich source of creativity and anything that serves to further limit the public domain also serves to impede creativity"; "The vast bulk of copyrighted works earn income, if any, for their creators in the years immediately following publication. ... What contribution would Windows 95 make to the public domain in 2065?"; and "Further expansions to the rights and powers of copyright and patent holders are likely to impede innovation because they empower corporations with entrenched interests in existing business models to restrict the development of innovative processes and technologies. Rather than promoting the proper purpose of intellectual property rights, these expansions serve instead to restrict development, raise the costs of business and prop up outdated regimes"

81 - Brendan Scott, including "It is very concerning that the FTA seeks to entrench ways of doing things which are fast becoming outdated. They increase compliance costs and push those costs onto smaller and smaller enterprises. Historically market activity was primarily conducted by large organisations, which permitted the aggregation of search and compliance costs. More recently there has been a higher level of disaggregation and community participation than has been evident in the past. We are in a state of transition at the moment and now is exactly the wrong time to be entrenching particular ways of doing things, especially where they are likely to be inappropriate to new modes of production"

93 - Xamax (this author)

105 - Prof. Ian Lowe, including "This proposed agreement should be rejected. It is clearly not in Australia's interest, even if the only criterion applied is short-term economic impact. When broader social, environmental and cultural issues are considered, it is clearly a very bad deal for this country"

130 - Australian Council of Trade Unions (ACTU), including "The ACTU objects to the acceptance of the US copyright standard of 70 years after the author's death or completion of production in the case of audio-visual works. Australia is a net importer of intellectual property from the US and this decision, by taking 20 years of works out of the public domain, will increase the costs borne by libraries and education institutions" (33, p. 9)


91 - Premier of Victoria, including:

128 - Department of Premier & Cabinet Western Australia, including "Australia will be required to align its intellectual property laws and practices more closely with those of the United States, including increased obligations for Internet Service Providers and increased enforcement provisions. This is a complex area and Western Australia would welcome further information on the likely impact, including costs, of the obligations under this chapter for Western Australian businesses" (6.2, p. 4)

Software Industry

85 - Cybersource, including "That strategic advantage [in open source software] held by Australia is in danger under the proposed FTA. ... The proposed FTA would bind the Australian Government to change our laws to restrictive and anti-competitive legislation that benefit only entrenched corporations. By allowing software patents, the proposed FTA will encourage monopolies and discourage competition. Rather than leveling the playing field, the proposed FTA will make it much harder for Australian companies such as ourselves to compete against American corporations such as Microsoft ... We oppose the granting of software patents. We are not alone in this. Many other software producers do as well, including the world's second largest software corporation, Oracle Corporation. The European Union recently voted against software patents. ... We believe that existing copyright law is sufficient to protect software developers" (p.1)

93 - Xamax (this author)

Linux Australia, including " ... Open Source projects rely on copyright. Just as closed-source software is distributed under a license, so too is Open Source software. The difference is simply that Open Source software is licensed under different (more permissive) terms ... The proposed FTA will limit the ability of Australian software developers, companies, and users to benefit from and contribute to the Open Source software industry ... The proposed agreement implies laws which strengthen large software companies at the expense of smaller players. Open Source encourages everyone to become a software producer and distributor: hence the expense is more widely spread than in other forms of software. [Adopting] the American system of software patents will stifle Open Source software initiatives and force Australian users and businesses into using costly and potentially inferior software, without the ability to alter it to suit their needs" (pp. 4, 1)

Interactive Media Industry

67 - Media Entertainment & Arts Alliance, including "Australia is a net importer of cultural goods and services - see Appendix 3. The extension of copyright term is unlikely to benefit Australia creators in any meaningful way. It will, however, impact adversely on creators of new works that are adaptations of other works or incorporate archival material" (67, p. 18)

Australian Interactive Media Industry Association (AIMIA), including " ... the free trade agreement ... could severely impact on our ability to develop industrial policies and IP re-use of this material. ... the 20-year extension is thoroughly grounded in the US media channels - not the creators but the distribution channels - wanting to continue to mine those. ... Process patents are anti-competitive. They are anti-innovative ..." (Hansard, 19 April, pp. 5-6)

Industry Associations Beholden to US Interests

39 - Australian Information Industries Association (AIIA), whose media release of 9 Feb 04, included "Regarding intellectual property, the agreement recognises Australia's world class IP regime. AIIA awaits further details regarding what is envisaged in terms of greater harmonisation of Australian and US IP laws", but whose submission to JSCT is simply a replay of the U.S. position

56 - Interactive Entertainment Association of Australia, which represents the interests of U.S. and Japanese games corporations in Australia, and whose submission to JSCT reflects its membership

126 - Business Software Association of Australia, which represents the interests of U.S. software companies in Australia, and whose submission to JSCT reflects its membership

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