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October 04, 2004

Free Trade Agreements, and the future of Australian ideas and technology

Before you read on, a note about me, so that you won't simply dismiss what you read (should you be so inclined) as some "left wing" "anti-US" diatribe.
I am a real capitalist (that is someone who has risked and continues to risk their capital to build an Australian business that develops and sells software and other intellectual property. 95% of our sales are overseas.)

Despite this, I believe the recent US/Australian "free trade agreement" (which is not about free trade, and is no more an agreement than the schoolyard bully and the wimpy nerdy guy "agreeing" that the wimpy guy give all his pocket money to the bully) undermines Australia's ability to adapt to the profoundly changing legal, technical and business landscape created by the current revolutions in intellectual property (IP) thrown up by the increasing digitization of the processes of creation, distribution and use of IP, from software to music to cinema and beyond.

The effect of the IP provisions (patent, trademark, copyright) of this agreement is to "harmonise" Australian and US IP law.
OK, a quick question.
Does that mean the US will adopt Australian copyright, trademark and patent laws?
Does that mean that the US and Australia will adopt a negotiated middle ground approach?
Does that mean Australia will adopt US copyright, trademark and patent laws?
Now you are getting the picture.

See what I mean about the bully and the pocket money?

And by the way, does that mean if I have an Australian Trademark or Patent it will be recognized in the US? Do I have to even answer that? You should be getting it by now. If I want an extravagantly expensive US patent or trademark, my Australian one is of no good to me whatsoever.

Now, this is not simply a theoretical issue. US IP laws, both copyright, with the appalling DCMA, and the forthcoming truly Orwellian INDUCE act, as well as genuinely out of control US patent law, means that we will have laws foistered on us about which we have no right to debate or decide, laws framed in the interest of US companies, and the US government, laws which may very well be inimical to the interest of Australia and Australians. With essentially nothing we can do about it.

And you think whoever entered this agreement has the interests of Australian industry, consumers, and indeed Australia at heart? The most charitable thing you can say about Nick Minchin, and the rest of those who signed off on this travesty is that they are profoundly ignorant about technology and intellectual property issues. That's bad enough for me. In a profoundly technological age, technological ignorance alone should disqualify you from government.

The world is waking up to just how one sided, and economically damaging these IP laws can be.
The INDUCE act, now before US congress,

... will criminalize the act of inducing another to commit a copyright violation. This is a brand new theory of copyright liability, which, as this floor statement makes clear, is directed at overturning SONY [the 1984 US supreme court case that holds it is not illegal to sell a technology that allows copyright infringement provided it also enables a "substantial, non-infringing use", i.e. stuff that isn't illegal] with respect to p2p. [peer to peer copying]
Laurence Lessig, foremost US expert in IP law.

It has been persuasively argued that the INDUCE act would make the iPod and all such devices illegal.
And yet we want to sign on to this nonsense?

In Europe, a vigorous opposition to the extension of patents to software and business processes, that is simply out of control in the US, has emerged. But here? We meekly fall into line with the US, as we seem to do about so many other issues. With our IP laws "harmonised" with the US, we have no way of making decisions in the interests of Australia when it comes to this rapidly changing, unsettled aspect of culture, technology and law. We have simply abandoned our rights as a society to make decisions in our interests.

Much has been said of late about things being unAustralian, If anything qualifies as "unAustralian" it is this.

It deeply disappoints me the the Labour Party simply capitulated on this. Yes, I know it is kind of complex stuff, difficult to communicate in sound bites, but it is stuff that impacts daily on people's lives, from the price of medicines (which the ALP did touch on) to whether someone can legally buy a multi-region recording DVD player.
But it appalls me that the Liberal Australian Government has simply handed over to the US the right to make laws regarding copyright and patents to the US congress, a body which above all represents the interests of US business (often congressional bills are written by lawyers working for US corporations - the US economic sanctions of Cuba were introduced by the Helms-Burton Act, essentially written by lawyers for Bacardi Rum).

If you believe it is remotely important for Australia to be able to make its own decisions about the social and business implications of the changing nature of intellectual property and technology in our own country, then ask yourself, is that remotely possible with this present government?
And should there be a change of government, we have to get to work to make the next government reverse this wholesale sell-out of our national interest.

October 4, 2004 | Permalink


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Agree. The current Government has to go - but I may be slightly biased:

The best solution is to vote green. Bob Brown is totally against the free trade agreement.

Posted by: Russ | Oct 4, 2004 12:52:52 PM

Very articulate outburst John

There are some clear trends here

(i) the progressive giving up of ground by the nation-state in favour of multi-national corporate interests.

(ii) the broadening scope of IP law

(iii) the misuse of IP law, or more accurately legal processes, as a proactive or reactive tool to stifle innovation.

(iv) the increasing criminalisation of IP laws.

Speaking to (i), the nation-state thing is pretty well known and near-ubiquitous in its application. It's probably a fact of history that this kind of thing will happen, though in recent years it seems like it's been occuring in a much more ham-fisted way. Is the US becoming more stronger? Probably not; it's very dominant, but the trend over the next 5-10 years will be less dominance, not more: the EU and more importantly, Chin, will chip away at this; but IMO it'll be a full 25 years before the US could possibly lose it's mantle as world leader. Its technology advantage is simply staggering. And outsourcing source code development to India won't change any of that soon.

Regarding (ii), i think this is mainly happening in the biotech sector. Plant varieties and Hitler clones.

On (iii), one of the aspects of the AUS/US FTA that attracted attention was the Opposition party's amendment, to the effect that incumbent right-holders couldn't lodge spurious objections to patent applications. this would apply, for instance, where a maker of generic pharmaceutical products wished to introduce a drug into the country deisgned to treat conditions for which a proprietary drug had existing market share. The original proposal was that the incumbent would be need to be notified of an INTENDED application - ie, before it was even filed. That's pretty outrageous. And this is an area where money talks - the legal and associated costs of challenging/defending applications is very high. Whilst this provision was thakfully changed, it's an example of vested interested being given greater rights than others (eg, advance notice). This is part of a trend of these interests to be given not only superior rights to the general citizenry, but even quasi-executive special rights to question/second guess the decisions of administrative bodies. Not a great outcome for democracy.

The increasing criminalisation of criminal laws is a pretty disturbing trend. From a jurisprudential point of view it's interesting - is it that copyright breaches are so widespread that when they catch one of them, they need to make an example of them? Of course, mass illegality in the IT sector generally either points to users doing one of two things. One, having no respect for having to pay monopoly prices for products when they don't need to. Most people i know are prepared to pay a reasonable price for a reasonable product; the best test of this I know is Stephen King's online book chapter - just under a 50% payment rate, which he regarded as failure, though I don't think Microsoft would :)). Two, a simple case of legacy charging/use arrangements being out of synch with the times. iTunes can make the business work for them - if the record companies had any nous, they would probably have developed great new ways of selling songs, rather than lazily squandered the past decade making easy money on back catalogues.

Another thing with criminalisation is that it's very hard to draft. In 2000 the Hong Kong legislature accepted draft legislation from Microsoft that criminalised certain types of copyright breaches, and the HK legislature, having poor legislative review processes, passed the thing pretty much unaltered. The result was that one week later, the Cheif Executive of Hong Kong, Tung Chee Wa, committed an act that made him liable for 10 years hard labour. For what? For reading newspaper reports that his media advisor had faxed to him whilst overseas!

John, I think you're right on too about the debacle with devices that *might* be used to do illegal activities. A case of the workld changing, but the copyright owners wanting to live in the 19th century. I don't think they will get too far with this. Innovation will endlessly work around them. Though in Australia for years now, if you purchase a blank music/video cassette, a fee (I think about a dollar) goes to the copyright collecting agencies.

Interesting to see where all this goes and john congrats again on WE04 which I heard went very well. Catch a wave for me.


Posted by: Alasdair Grant | Oct 4, 2004 1:25:39 PM

I emailed Senator Kate Lundy, Opposition IT spokeswoman, and one of the few technically literate members of parliament as far as I can tell, and within 15 minutes she wrote back, drawing my attention to a paper she wrote regarding the senate enquiry into IP aspects of this agreement



Posted by: John Allsopp | Oct 4, 2004 1:26:17 PM


Just to be clear, I am certainly not opposed to free trade. The point is that this agreement is neither about trade, nor is it free, nor even an agreement.


Posted by: John Allsopp | Oct 4, 2004 1:27:45 PM


great post, you've still got it (maybe better than ever) even after a year in the tropical north. BTW, Al is looking for work after a year's sabbatical. Do yourself a favour, if you need a IT/Teslcos/IP lawyer/strategist/Policy guy (experience to VP level in Australia, US and all over South East Asia), he is your man.


p.s. Al didn't ask me to write that

Posted by: John Allsopp | Oct 4, 2004 1:38:20 PM

Vote Green I agree! They won't win gov't but they'll be the great ethical force to keep the winning party in line. The Liberals must not get back in and Labour needs to be corrected ona few things, and not just in relation to the FTA. BUT pay particular attention to how you vote for the Greens as there is a crazy preferences setup that if done unwisely will send your vote on to the parties you really don't want holding the balance of power!

How to effectively and sensibly use your vote with the Greens in your electorate is outlined here http://www.greens.org.au/howtovote/

The greens FTA related policies are at http://www.greens.org.au/policies/internationalissues/globaleconomics

From our perspective in the Education sector, Howard must go however you look at it. I also have links with the media and entertainment industy – and here it is crucial that that FTA be reversed! The NTEU website nicely weighs up the options at http://www.nteu.org.au/campaigns/election2004

Posted by: Andrew François | Oct 4, 2004 2:33:00 PM

Getting once more on my bandwagon ;)... For further background info on the FTA as it relates to Interactive media industries and IP these links are worth exploring:

AIMIA - Australian Interactive Media Industry Association

Media Entertainment and Arts Alliance

Cyberspace, Law and Policy centre

Posted by: Andrew Francois | Oct 5, 2004 10:47:09 AM

G'day mate,

Look on the bright side, the US patent system rules! Just dream up any vague excuse for a function and wrap it in a minimum of GUI jargon to file for your future fortune made in court. Doesn't matter that you have absolutely no idea how to implement the thought. Just hire a lawyer, not an engineer.

You may be interested in an oldish case that has been going for years and continue to cripple the field of panoramic/VR photography (where I work). Search, for example, for the IPIX and Helmut Dersch combo in Google. A German company is fighting these US patents (IPIX) in court right now.

Further to Al above: The US has a growing trade deficit and much traditional manufacturing industry has been outsourced. Why is the DMCA coming to a town near you? No prizes, sorry.

Posted by: af | Oct 6, 2004 8:23:28 PM

While on the subject of IP and copyright law, John mentioned "Laurence Lessig, foremost US expert in IP law". Turns out that Lessig will be speaking at a public forum Oct29 in Sydney. Register at http://www.apple.com.au/education/lessig/

"Once a 'right-wing lunatic,' he's become a fire-breathing defender of Net values." Steven Levy of Wired Magazine

A regular columnist in Wired Magazine, Lawrence Lessig wrote the book on creative rights in the digital age.

Named one of Scientific American's Top 50 Visionaries, for arguing "against interpretations of copyright that could stifle innovation and discourse online." Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society.

In his 90 minute Public Lecture Professor Lessig will share his views on constitutional law and the law of cyberspace."

Posted by: Andrew François | Oct 7, 2004 7:37:17 AM

Do you want to know how much grant money is available to the American public?

The information is available online. It can be obtained by doing a quick search. The government grants are available for artistic endeavor, or field of study, or the sole proprietor of a new business or playwright, or any type of business.

Organizations are setup at the local level to help the people in providing government grants. So there will not be competition in obtaining the grant and they will also work closely in the development of the project.

You can easily apply for government grants. These local agencies will guide you and provide all the details required before filling out the applications for the grant. For applying for the grants you need to register with Central Contractor Registry (CCR) and also register as an authorized organization representative (AOR). Once it is done and application is submitted, it will take several days to process.

For more details go to govgrantsguide.com

Posted by: Grants | Oct 5, 2007 5:22:14 PM