The Aus-Korea Free Trade Agreement Could Sink iiNet's Piracy Ruling

The Korea-Australia Free Trade Agreement (KAFTA) aims to open up commerce between Australia and its third largest trading partner, removing tariffs on the export of wheat, sugar, wine and other commodities. There's a sticking point, though; Korea wants our Copyright Act amended to compel ISPs to prevent piracy, and iiNet's landmark piracy trial ruling canceled out.

Pointed out by Brendan Molloy, a member of the Pirate Party in Australia, the KAFTA National Interest Analysis from the Department of Foreign Affairs and Trade contains a few references to copyright.

Most relevantly, a sentence in the Implementation section mentions, towards the end of its first paragraph, the suggestion that for the Free Trade Agreement to come into effect, an amendment to the Copyright Act will be required "in due course":

Consistent with Australia’s existing obligations in the Australia-US and Australia-Singapore FTAs, and to fully implement its obligations under KAFTA, the Copyright Act 1968 will require amendment in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers

"A legal incentive for online service providers to cooperate with copyright owners" is, essentially, exactly what iiNet chief regulatory officer Steve Dalby recently spoke out against in a blog post on the company's website, first spotted by iTnews.

iiNet's long-running and contentious Federal and High Court trial against Roadshow Films and AFACT established a legal precedent that ISPs should not be liable for the actions of their users in illegally accessing and downloading content that infringes the copyright of media rights-holders.

The KAFTA, it seems, requires that this legal precedent be nullified and the Copyright Act be amended to require ISPs to actively assist copyright holders -- likely in identifying alleged pirates, sharing their details with the allegedly aggrieved media companies and forwarding those companies' infringement notices to end users.

It's also interesting that the wording suggests that this amendment is implied or required by the free trade deals between Australia and the US and Australia and Singapore as part of the Trans-Pacific Partnership, which would explain the government push to implement various anti-piracy and anti-infringement measures since current Attorney-General government minister George Brandis took office in September last year.

Molloy is not happy about the situation: in his words, "the mess just keeps getting worse." In his post, he also mentions that Australia's Productivity Commission explicitly mentioned that changes to intellectual property should not be implemented as part of international free trade agreements without carefully considering the consequences, in a report back in 2010.

At the end of last year, trade minister Andrew Robb made assurances that ISPs would not be held liable for the actions of their users. [Brendan Molloy]



    Seriously? Korea? a country that is famous for making high quality fake stuff?

    edit: and that is something I was told by my Korean friend

    Last edited 13/06/14 12:30 pm

      Actually your mostly right. Korea is a country known for being a fast follower. Not so much in respect to making fake copies but in regards to reverse engineering and producing a similar cheaper product.

        1. *you're
        2. I was talking about downright fake stuff as well. They make fake copy of their own products and sell that at a cheaper price.

      So your friend was made in Korea? Therefore he could be a high quality fake Korean then? In which case, how can you be sure what he's telling you is true?

        because he bought me a fake Korean team soccer jersey which was sold alongside the real one but was half as cheap with a big label saying they are as good as the real one.

    This makes no sense...
    Where is Australia pirating Korean IP?
    The only logical conclusion is that this FTA has been hijacked by US Lobby Groups who want to introduce draconian measures that even the US itself wont introduce!

      All those damned Australians watching unauthorized streams of K-pop on Youtube? That's the only thing I can think of.

      Agree that this smells strongly of US involvement.

      I don't know much about it but I've heard Korean dramas are taking off in a huge way.

    the anagram KAFTA reminds me immediately of Kafka.

    And suddenly now I know what Josef K was guilty of all along and who the agency is that are putting him on trial.

    This smells, sounds and tastes like a condition Australia asked Korea to put in so that it could get around a legal sticking point.

    So after local ISP's all get bankrupted or generally disenfranchised, should we look forward to our Korean owned and managed ISP overlords? Or will they be NSA..i mean USA.. based? Who exactly will be the 'man behind the curtain' then?
    Those red citizen armbands burn you know.

    "... ISPs are not liable for authorising the infringements of subscribers"

    When can any company authorise people to BREAK the law? To me ISPs are common carriers and not responsible for what subscribers do.

    Isn't the TPP just a bunch of these free trade agreements? We all know the TPP is just big business trying to monopolise themselves.

    The TPP is quite scary and is quite literally the first step into a Syndicate/Johnny Mnemonic future where corporations have more power than governments.

    If the iinet ruling is changed to suit this nonsense, then the justice system can be truly considered an ass... You cannot change a legal ruling like this without some very compelling evidence to change that ruling. I would think if Australia's Government has any balls, they will simply say no...! we will not mess with our legal system to make you happy, deal with it...!

      justice system can be truly considered an ass...

      It already is an ass. Justice in general the world wide has been that way even before Dickens made that comment about the Law in general.

      Failing that, just look at our parole board. It wouldn't be funny even if it was a comedy sketch.

      Last edited 13/06/14 2:42 pm

    muthrfuckers.... just need to download a few 1000 more films then I can disconnect for a few years in the futile hope the loss of profits may cause a reconsideration of such laws.

    Getting genuinely depressed about this country and the jizz-holes that seem to make up 45% of the population.

    5. What issues are under negotiation in the Intellectual Property chapter and why are they important?

    There are many forms of intellectual property under negotiation in the Intellectual Property chapter. These include trade marks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement, genetic resources and traditional knowledge.

    Australia exports and imports a range of products and services, such as music, films, software, pharmaceuticals, food, appliances, equipment and other technologies, that benefit from effective and balanced intellectual property protection and enforcement regimes here and overseas. Such settings encourage creativity, innovation, certainty and investment, and promote international trade in legitimate products and services while reducing the volume of counterfeit and infringing products and services imported into Australia. The TPP provides an important opportunity to achieve a more consistent approach to intellectual property protection and enforcement across the region.

    7. What is Australia’s position on intellectual property enforcement in the TPP?

    Australia supports enforcement provisions in the TPP that protect the intellectual property rights of our creative and innovative industries and that are in line with our own effective and balanced enforcement regime.

    8. Will the TPP affect our use of the internet and require a 'three strikes' regime?

    The Government’s approach to internet-related issues in the TPP is to ensure a balanced outcome that provides opportunities for business and consumers, and retains Australia’s ability to address public policy needs such as protecting privacy. In relation to internet service providers, the Government is supporting provisions in the TPP that are consistent with Australia’s existing international commitments. Contrary to some reporting, the Government is not seeking provisions that would require TPP parties to have a ‘three strikes’ regime, where internet service providers are required to cut off internet access after a user is warned three times about internet downloading that may have breached copyright laws.

    10. Will the TPP require new criminal penalties in Australia for downloading music, movies or TV shows, or making temporary copies?

    The Government is not supporting provisions in the TPP that would require any new criminal penalties for downloading music, movies or TV shows, or making temporary copies.

    The answer is quite simple.

    We (the Oz government) ripped them off both by (allegedly) stealing their sensitive IP & $$$ by reneging on a deal. I wont go into the details but they want this clause in the agreement because of this & Oz now has a rep of ripping off sovereign countries.

    They are super pissed & its highly unlikely that KAFTA will be ratified, unless things are made right. Our current PM refuses to do so.

    So fucking cheap & easy to fix tho when you look at the bigger pic of KAFTA. $35bn & 15,000 jobs - nah Oz dont need no stinkin cash or jobs.

    Last edited 13/06/14 4:32 pm

    Why can't they simply say, this is Australian law, this is what the courts have found and that they don't want or need other countries telling us what laws they don't like. Telling us they don't like our High Court decisions and so we must change them to suit them.

    This is the kind of response that should be given if our government actually worked for peoples interests. Why are other countries dictating to us what our laws should be and what our court outcomes should be?

    The real danger is, these laws once in place can be extended to everything. As ISPs will be connected to everything. Copyright can also be extended very widely in ways to block freedom of speech and information. Recently copyright laws were used to take down websites informing parents about what their kids were being taught in schools.

    Imagine this, you're on holiday and take a picture with your camera of a building or with a building in it. Or maybe a statue or artwork. Your camera is connected to the internet. Whether for cloud back up, It's your smart phone or various other reasons. A message pops up on screen that the building is copyrighted and you must either pay to keep the picture or have it automatically deleted. That is currently technically feasible and there is no personal use exception to copyright infringement.

    That is where changes to make ISPs liable could head. Especially as things move towards the cloud. That's one example but I'm sure you can think of countless more.

      Because treaties are about countries negotiating between each other which includes the option of changing their laws to suit the treaty. :/ So yeah, the government can say, "We think this is a pretty good deal and worth the sacrifice of pushing enforcement/compliance costs onto ISPs so we don't have to do it, because they're in a better position to do it anyway. We'll just change our laws to suit our international obligations. Or at least, the ones we actually want to comply with, unlikely all those boring emissions/human rights obligations."

      This way, they can be 'tough on crime' without spending a fucking cent.

        But we never get anything out of these treaties. Just give up sovereignty. It's especially bad when countries demand we change laws for our citizens that they won't put on their own.

          We'd have to get something out of them or we wouldn't be agreeing to them. Maybe it's increased exports, maybe it's fulfilling backdoor promises to political campaign contributors, maybe it's acting on the intelligence and diplomatic communities' recommendations about strengthening ties to make allies out of potential foes for the sake of national defence, etc, etc.

          But either way, to the layman like me, yeah... it seems like a raw deal.

            A lot of them we don't. Like the US free trade agreement which has lost us billions. Most of them is the leaders of countries getting together to help each other out.

            Australia loses out because we aren't a manufacturing country, and these just make it even harder for locally produced goods.

            As far as things being cheaper for Aussies, it never works out that way. All that crap recently about Mazada's now being cheaper. No the price stays the same. Those selling them keep the benefit. Average Australian gets nothing.

            Most free trade agreements around the world are never equally mutually beneficial and the one who benefits is the more powerful country. Unfortunately the average person just assumes they must be good and don't understand all the stipulations and protections put into them, to ensure they are not really free trade agreements.

            Now that this government removed the ban on ISDS, it's further moving away from the interests and sovereignty of Australia for the benefit of non Australians.

    This is BS, iinet won for a reason. Just like I can't blame the rta for providing the road and licence to enable me to drive and commit an offence

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