Principle 5: Providing rules consistent with international obligations

2.64 Australia is bound by treaty obligations requiring the protection of copyright, notably under the Berne Convention.[93] There is also a direct link between intellectual property law and international trade obligations—the explicit basis for the TRIPs Agreement.[94] Alongside multilateral harmonisation of copyright law is an emerging environment of bilateral trade agreements[95] 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.[96]

2.66 A number of these agreements contain provisions which ‘delineate the acceptable contours’[97] of any limitations or unremunerated exceptions.[98] 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.[99]

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’.[100] Australia needs to ensure that our copyright laws harmonise with those of our trading partners to facilitate export and import of copyright material.[101] 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.[102]

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’.[103]

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’,[104] 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’[105] but it is said to be ‘the central plank underlying exceptions to copyright in international law’.[106]

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.[107]

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.[108] 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.[109] As the UK Government has noted in response to the Hargreaves Review:[110]

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.[111]