Protecting the penguin
Protecting the penguin
The recent free trade agreement between Australia and the United States has been the subject of much debate as to whether Australia got a good deal out of it. Here, Michael Davies, committee member of open source organisation Linux Australia, argues that Australia's future as a developmental hotbed for open source software hinges on how the terms of the deal are interpreted and imposed.
The recent signing of the Australian - United States Free Trade Agreement (AUSFTA) brings Australia to an Intellectual Property (IP) crossroad. Do we strengthen the rights of digital content creators, or maintain the freedoms afforded to Australians and Australian industry under current legislation? What effect will these proposed changes have on Australia's flourishing Open Source Software (OSS) industry?
Chapter 17 of the AUSFTA treaty binds Australia into a US-style IP rights regime that has its fair share of critics - including significant sections of the US IT industry. In the USA, IP rights now strongly favour digital content creators and limit the rights of consumers and software developers.
In Australia, one representative body that is concerned about the AUSFTA obligations is Linux Australia, which has highlighted on its website the problems that the AUSFTA could bring to the local OSS industry (see http://linux.org.au/fta).
There are two areas of primary concern in the AUSFTA for the local OSS community - the first concerning software patents, with the second regarding anti-circumvention legislation.
Software patents have always been controversial - traditionally it was held that software, along with things like business methods and mathematics, weren't patentable, but as a result of various court rulings in the 80's and 90's, software became patentable in Australia.
The European Union took a different approach - legislation specifically dealing with the patentability of software was considered. The result is that they have expressly forbidden software patents. Why? Software patents are notoriously hard to get right - the proof is in the many controversial patents that have been awarded in the USA. Rather than encourage innovation (which they were intended to do), software patents stifle innovation - since many cover trivial advances and cover broad areas of general software development knowledge. It has been said that anyone who writes software today is unknowingly violating someone else's patent.
The AUSFTA aims to harmonise Australia's patent system with the USA - meaning broader patentability, including software. This is of particular concern to the Open Source industry, as while all software developed infringes on patents, open source software is at a distinct disadvantage since it is much simpler to prove violation since the source code is available. In the past, Open Source Software has been content to compete on technical merits (for example the Apache web server that continues to increase on its 65 percent market share), but with stronger legislative support for software patents, this successful paradigm for developing software is under threat.
That is not to say that innovators should not be rewarded for their R&D investment. However in the realm of software we already have strong mechanisms to protect these investments - traditional copyright and source code control. It is difficult to argue that software patent protection is required on top of these other two protection mechanisms.The OSS industry should be protected from the software patent minefield, so as to all the exponential adoption of Linux and other open source projects by business, education and government sectors to continue.
The second area of concern is anti-circumvention - an extension to copyright which deals with the rights of digital content creators and consumers. With traditional copyright, such as for a book, the purchaser of the book is free to do with the book as he or she likes - you can use a magnifying glass to read it, burn it in protest, use it as a door stop, sell it to a friend, take it overseas, or have it read to you by a machine if you are blind.
Unfortunately under the anti-circumvention obligations of the AUSFTA, you won't be able to do these things with an electronic book sold in Australia; you cannot circumvent anything which controls access, placing you at the whim of the manufacturer.
Australia already has laws which limit what can be done with digital content - defining that any device that allows you to use digital content in a way not envisaged by the copyright holder is an anti-circumvention device. Trading such devices specifically designed to circumvent copyright is illegal today. An independent - but government sponsored - review of the existing legislation was recently published, which stated that laws in this area should, "clearly allow any supply or use of a circumvention device or service for any use or exception allowed under the Act, including fair dealing and access to a legitimately acquired non-pirated product."
The AUSFTA introduces US-style Digital Millennium Copyright Act (DMCA) obligations to Australia which go the other way - broadening the definition of what an anti-circumvention device is, and narrowing the legal use of something declared to be a "circumvention device".
In the USA, the DMCA has been used to protect market share and attack competitors more than it has been used to protect digital content creators. One example of this is a printer manufacturer that has used the DMCA to lock-out competing printer cartridge suppliers - clearly not the intent of the original legislation.
Another well-known example of the invocation of the DMCA was against Jon Johansen (living in Norway) who wrote open source software so that he could play his legally purchased DVDs under Linux. In legal action that has spanned four years, Mr Johansen was finally acquitted, with that court ruling that playing legally purchased DVDs should not be a crime.
It has always been possible to write a closed source DVD player for Linux - but in doing so, we now we venture into the undesirable situation where legislation dictates the choice of licence a software author may choose.
It isn't hard to see how this control could be extended - most hardware sold today has a software component. Hardware manufacturers, with the support of DMCA-style legislation, could prevent the development of third party software drivers for their hardware. This will dramatically affect open source software where many drivers are created by third parties.
This new framework does nothing to encourage innovation and diversity, but provides a legal framework that encourages anti-competitive practices, which will hurt the adoption of Open Source solutions. In a broader sense, these AUSFTA obligations favour current IP stakeholders, which are typically large multi-nationals, to the detriment of smaller local companies. This places an overly burdensome weight on the shoulders of our local Australian IT industry.
We stand at the crossroads - if Australia is going to make changes to IP law it needs to learn from the mistakes of the USA, not copy them.
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