Fair enough? copyright and the Australia-United States Free Trade Agreement

The FTA Implementation Bill proposes that Australia’s copyright regime be harmonised with that of the USA. In particular, mooted changes include the length of copyright protection terms, the criminalisation of currently legal uses of intellectual property and a more authoritarian approach to the use of circumvention devices. These all serve to make Australia’s copyright laws more restrictive. In the US, fair use provisions which allow copyright breaches to be ‘defended’ on a case-by-base basis balance this greater restriction. However, the FTA Implementation Bill does not expand Australia’s minimal fair-dealing laws, despite submissions to that end. In its ‘selective harmonisation’, the FTA appears to favour copyright owners over users, and shifts the balance of Australia’s existing copyright scheme. This paper outlines the changes in Australian copyright law that will occur with the implementation of FTA, and argues that equity between owners of copyright and its users has been disrupted – more restrictive copyright rules should be balanced by the adoption of doctrines of fair use.