Korean Free Trade Agreement May Spark Changes to Copyright Law
Monday 21 July 2014 @ 10.39 a.m. | IP & Media
The Korea-Australia Free Trade Agreement (KAFTA) was formally signed in April this year, and according to ABC News is supposed to “see advantages for beef and other agricultural products, with fruit and vegetables, seafood, cheese, sugar and wine among the winners”.
But the National Interest Analysis ([2014] ATNIF 4) for the agreement, tabled in Federal Parliament in May, has suggested that implementation of the agreement will require amendment of the Copyright Act 1968 (Cth):
“Consistent with Australia's existing obligations in the Australia-US and Australia-Singapore FTAs, and to fully implement its obligations under KAFTA, the Copyright Act 1968 will require amendment in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court's decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers.”
However, intellectual property experts are raising doubts about whether changes are justified. The Guardian reported last week that Rupert Murdoch’s News Corporation:
“used a senate submission on a proposed free trade agreement between Australian and South Korea to call for domestic copyright laws to be amended to cover the “secondary liability” of ISPs for pirated material on their networks”.
Computerworld reported that Associate Professor Dr Matthew Rimmer, from the ANU College of Law, told Parliament’s Joint Standing Committee on Treaties that:
“it seems that there's a bit of a push by copyright owners in a number of submissions [to the inquiry] to try to argue that those range of [free trade] agreements demand stronger protection for copyright owners and a greater range of action against intermediaries like internet service providers... and looking at the agreement I don't really see the textual basis for those assertions.”
ZDNet has reported that Associate Law Professor Kimberlee Weatherall, from the University of Sydney, also disagrees with the National Interest Analysis’ assessment, telling Parliament:
“In my view, the assertion in the NIA is simply incorrect. Australia does not have an obligation — under AUSFTA, or even under KAFTA if ratified — to impose liability on internet access providers for their users' copyright infringements”.
ZDNet reports that she argued that the decision in iiNet was very fact and case-specific, and that copyright holders are in fact protected under Australian law, although possibly not in the way they would like:
“The fact that the form of cooperation incentivised by Australian law is not right holders' (currently) preferred form of cooperation does not put Australia in breach of AUSFTA.”
Dr Matthew Rimmer, from the ANU College of Law also raised separate concerns about “the interlinkage between investment rights and intellectual property” in KAFTA. Computerworld reports that he described the agreement’s IP regime as “one-sided and unbalanced” and told the Committee:
“Intellectual property owners are given 'super powers' under the Korea-Australia free trade agreement in addition to their normal range of civil and criminal remedies that they can seek in relation to copyright law and trade mark law, and civil remedies in relation to patent law.”
According to ZDNet, the Department of Foreign Affairs and Trade says the Government aims to pass all legislation that needs to be changed prior to KAFTA coming into force by the end of the year.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
