2.64 Australia is bound by treaty obligations requiring the protection of copyright, notably under the Berne Convention. There is also a direct link between intellectual property law and international trade obligations—the explicit basis for the TRIPs Agreement. Alongside multilateral harmonisation of copyright law is an emerging environment of bilateral trade agreements and negotiations. The Terms of Reference refer to ‘having regard to Australia’s international obligations, international developments and previous copyright reviews’.
2.65 As the Copyright Law Review Committee observed:
The permissible scope of any statutory exceptions to those rights must also be determined by reference to the exceptions allowed for in those international agreements.
2.66 A number of these agreements contain provisions which ‘delineate the acceptable contours’ of any limitations or unremunerated exceptions. The ALRC is mindful that its proposals for new copyright exceptions or amendments to existing exceptions must be consistent with the three-step test of the Berne Convention.
2.67 International consistency is a major factor in ‘allowing Australian businesses to participate in global activities and industries; and Australian consumers to benefit from use of those global activities and industries’. Australia needs to ensure that our copyright laws harmonise with those of our trading partners to facilitate export and import of copyright material. For example, difficulties in the lack of reciprocity with regard to rights for foreign film directors means that Australian film directors are unable to benefit from certain collecting schemes in other countries.
2.68 One stakeholder submitted that: ‘key elements of Australia’s international reciprocal agreements are overlooked in the transactional models available … many collection societies will boast about their ‘impressive’ income to administrative expense ratios, but there is near silence on the accuracy of repatriation’.
2.69 One aspect of international consistency, which many stakeholders commented on, was that ‘all free exceptions must be viewed from within the prism of our international treaty obligations’, in particular the ‘three-step test’ from the Berne Convention. The ALRC does not consider the three-step test to be itself a ‘framing principle’ but it is said to be ‘the central plank underlying exceptions to copyright in international law’.
2.70 Some submissions raised the three-step test as an impediment to introducing reform into Australian copyright law. Others pointed out that focusing on the three-step test should not be at the expense of other important international instruments supporting human rights, the development of science and culture and freedom of expression.
2.71 The ALRC considers that proposals made in this Report are consistent with Australia’s international obligations. However, this Inquiry may also provide an opportunity for suggesting policy parameters within which future international negotiations may take place. This might include an interpretation of the three-step test in the Berne Convention which allows for greater flexibility in the ‘general interest of Australians to access, use and interact with content in the advancement of education, research and culture’, as set out in the Terms of Reference for this Inquiry. As the UK Government has noted in response to the Hargreaves Review:
Having accepted the general case for broader copyright exceptions within the existing EU framework, the UK will be in a stronger position to argue that other flexibilities are needed now and in the future.
Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971,  ATS 5 (entered into force on 15 December 1972).
Agreement on Trade-Related Aspects of Intellectual Property Rights, opened for signature 15 April 1994, ATS 38 (entered into force on 1 January 1995).
For example Australia-US Free Trade Agreement, 18 May 2004, ATS 1 (entered into force on 1 January 2005).
Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [B.1].
E Hudson, ‘Copyright Exceptions: The Experience of Cultural Institutions in the United States, Canada and Australia’, Thesis, University of Melbourne, 2011, 21.
See Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [B.5], [B.11], [B.20]–[B.22], [B.25], [B.28].
See Ch 4.
Optus, Submission 183.
See further National Impact Analysis, Regulation Impact Statement Australia-United States Free Trade Agreement (2004), 13.
Australian Directors Guild, Submission 226.
Nightlife, Submission 657.
Screenrights, Submission 215; ‘Australia’s international treaty obligations must be the starting point for any consideration of copyright law and policy’: APRA/AMCOS, Submission 247.
Music Rights Australia Pty Ltd, Submission 191; Australian Copyright Council, Submission 219.
Australian Copyright Council, Submission 219; Screenrights, Submission 215. See also Pearson Australia/Penguin, Submission 220; Australian Film/TV Bodies, Submission 205; Motion Picture Association of America Inc, Submission 197.
Civil Liberties Australia, Submission 139.
This point has been made with respect to a review of patent extensions for pharmaceuticals: Australian Government, Pharmaceutical Patents Review: Draft Report (2013). See also Civil Liberties Australia, Submission 139.
See further Ch 4.
I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011).
UK Government, The Government Response to the Hargreaves Review of Intellectual Property and Growth (2011), 8.