Electronic Frontiers Australia (EFA) board member, Dale Clapperton, has called the IP clause of the AUSFTA agreement a massive step backwards for Australian IP law.
Hammering out its main beefs, EFA recently submitted a position paper to the Senate committee opposing the wide expansion of IP rights and powers outlined within the agreement.
Clapperton said implementation of the AUSFTA would impede innovation, hamper the adoption and use of modern information technologies, and interfere with the access and use information.
The harmonisation of patent law with the US also ran the risk of creating software patents in Australia.
“These types of patents have been regularly abused in the US by major software companies who use them to intimidate and suppress competition and innovation,” Clapperton said.
The sweeping powers given to copyright holders put various burdens on ISPs, he said. “The liability of ISPs under current Australian law is uncertain,” Clapperton said, “and sensible legislation is clearly required to ensure that ISPs can safely continue their pivotal role in the provision of modern communication systems.”
Article 17 requires ISPs to remove copyright-offending content from the Internet in response to a copyright holder’s request.
Rights holders could issue take-down notices to ISPs that didn’t require proof or evidence of infringement, he said, leaving the door open to vexatious take-down notices. EFA is worried Australians will be at the mercy of lawsuits for breach of copyright. “It will turn the Australian Internet industry into a litigation mill, as well-funded US media groups launch waves of prosecutions against Internet users and ISPs themselves,” Clapperton said.
The Australian Interactive Media (AIM) group of owners, producers and creators, has also voiced concerns. AUSFTA represented a significant threat to the burgeoning open source software development industry, executive director, Louise van Rooyen, said.
“Integral to open source development is the notion of developers iteratively contributing to the value of the aggregated code as a result of innovation they have undertaken while they’re working on a particular project,” van Rooyen said.
“Under the FTA, a developer’s contributions would need to be rigorously checked for compliance which could have significant associated costs.”
Innovative software developers could be left exposed to onerous punitive damages if software copyrights were infringed unknowingly under the IP text, according to van Rooyen.
Under Australian law, the developer is liable only for the losses which are a result of the infringement.
Under the FTA, van Rooyen said damages included compensation to the copyright owner for their losses as well as a financial penalty as an extra deterrent.
As industry watchers continue to speak out, public hearings are underway. They end on May 14.