Governance and the Process of Law Reform: The Copyright Term Extension in Australia

Canberra Law Review, Forthcoming

Posted: 3 Apr 2007

Abstract

On 1 January 2005 an amendment to the Copyright Act became effective extending the term of copyright in works from the life of the author plus 50 years to the life of the author plus 70 years. This amendment was pursuant to Australia's obligations under the Australia - US Free Trade Agreement (AUSFTA) and forms a part of a long term international trend to extending the term of copyright protection. It also forms a part of an international trend of the negotiation of bilateral trading agreements that incorporate requirements in relation to ancillary matters such as intellectual property.

The implementation of any law reform involves an exercise in governance. In particular, the grant of copyright involves a balancing of rights. One important function of copyright law is to secure rights for the creator of a work, the aim of which is, amongst other things, to encourage further creation. However, it is recognised that the granting of exclusive rights also has its drawbacks. It means that the general public is denied access to those works, unless the copyright owner consents. The law deals with this by granting certain exceptions and defences to copyright infringement. A decision to extend copyright will disturb that balance, by strengthening the right of the copyright owner. It may also upset existing rights granted by contracts which have been negotiated on the understanding the copyright law lasts for the life of the author plus fifty years. This article will focus on the process of achieving law reform through a free trade agreement. The inclusion of changes to intellectual property laws in a trade agreement is now a common practice. However, it means that the benefits and disadvantages of that reform may be overshadowed or supplanted by the consideration of whether the trade agreement as a whole is beneficial. There is a risk that an individual amendment, which may be seen as disadvantageous, is conceded to secure the bigger deal. The process behind the decision to extend will be considered. This process was driven by the fact that the term extension was a part of a free trade agreement, and the implications of that will be considered.

Keywords: copyright, Australia, duration, law reform

JEL Classification: K29, K20, K00, K39

Suggested Citation

Sainsbury, Maree T., Governance and the Process of Law Reform: The Copyright Term Extension in Australia. Canberra Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=976559

Maree T. Sainsbury (Contact Author)

University of Canberra ( email )

Canberra, Australian Capital Territory 2601
Australia

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