Australia-United States Free Trade Agreement Aspects of interest A-USA FTA Patrick Fair

Australia-United States Free Trade Agreement

Aspects of interest

A-USA FTA

Patrick Fair

©2004 Baker & McKenzie 2

A-USA FTA

Outline

Status of the Agreement Structure of the Agreement Outline of relevant parts Key exceptions Discussion


A-USA FTA

Status of the Agreement

Concluded on 8 February 2004 Australia will consult via the Joint Standing

Committee on Treaties USA has a 90-Day Congressional Notification

Period Parties then pass necessary legislation and

notify each other by exchange of “diplomatic notes”

Treaty comes in to force on an agreed day


A-USA FTA

Structure of the Agreement

23 Articles Non conforming measures in Annexes 27 clarifying side letters Terminable on 6 months notice Provides for payment of monetary assessment

for breach assessed by disputes panel


A-USA FTA

Key elements

National Treatment Most-favoured-nation (MFN) Non-discrimination Transparency Alignment of systems and procedures.


A-USA FTA

Outline of Parts for consideration

Article 10 Cross Boarder Trade in Services Annexes I and II on non-conforming measures Article 11 Investment Article 16 Electronic Commerce Article 17 Intellectual Property Rights ISP liability


A-USA FTA

Article 10 Cross Border Trade in Services

Obliges National Treatment and MFN for service suppliers of the other party

Exceptions include according to the notes “public services”…

Exceptions include according to the Article: Subsidies or grants provided by a Party, including

government-supported loans, guarantees, and insurance government procurement and A service supplied in the exercise of governmental

Authority: “any service which is supplied neither on a commercial basis, nor in competition with one or more services suppliers”


A-USA FTA

Limited to “Service supplier of a Party”

…a person of that Party that seeks to supply or supplies a service

Same meaning as Articles II and XVII of GATS

Article I (3) of GATS says:

(b) “services” includes any service in any sector except services supplied in the exercise of governmental authority;

(c) “a service supplied in the exercise of governmental authority” means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.


A-USA FTA

Annex I

Lists measures that are excepted but if liberalized must not be made more restrictive subsequently

Includes: 55% local content on programming 80% local content on advertising Sub-quotas may be applied within these quotas Applies to digital and analogue but multi-

channelling excepted


A-USA FTA

Annex II

Listed items can be made more restrictive and restrictions can be invented

Includes: Transmissions quotas for multi-channelled commercial

free-to-Air Expenditure requirements on Subscription TV Australian content on interactive audio and video Broadcasting licensing and spectrum management Taxation incentives for video and film production Creation of co-production arrangements with other

nations.


A-USA FTA

Some aspects of the detail [interactive audio and video]…Australian content on such services is not

unreasonably denied to Australian consumers, upon a finding by the Australian Government that Australian content is not readily available to consumers through such services

[Multi-channelled free-to-air commercial TV]…A 55% transmission quota on programming may be imposed on no more than 2 channels, or 20% of the total number of channels (whichever is greater), made available by an individual broadcaster. The quota cannot be imposed on more than three channels of any individual broadcaster

[Subscription TV]…Expenditure requirements of up to 10% of program expenditure may be imposed on services providers making available services in the following formats: the arts, children’s, documentary, drama, and educational. ..The expenditure requirement on drama channels may be increased up to 20% upon a finding by the Australian Government that the 10% requirement is insufficient to meet its stated goal for such expenditure.

[Free-to-air commercial radio] transmission quotas of up to 25% can be imposed on individual stations


A-USA FTA

Article 11 Investment

Obligation to accord the better of National Treatment and MFN

Exceptions include limits on foreign investment in the Media and Telstra


A-USA FTA

Article 16 Electronic Commerce

Deals with “digital products” defined as

“ the digital form, or encoding of , computer programs, text, video, images, sound recordings, and other

products, regardless of whether they are fixed on a carrier medium or transmitted electronically.”

Non-discrimination: no distinction between like digital products on the basis of origin

No customs duties on digital products IP Article overrules this Article to the extent of any

inconsistency


A-USA FTA

Article 17 Intellectual Property Rights

Deals with trademarks, domain names, Copyright, designs and patents

Each party will ratify or accede to the WIPO Copyright Treaty (1996) [US became a party on 6 March 2002] and Performances and Phonograms Treaty (1996) [USA became a party on 20 May 2002]

Obligation of National Treatment on IP [except secondary use of phonograms by analogue free-to-air?!]


A-USA FTA

Article 17 and Copyright

Copyright in works to last the life of the Author plus 70 years

Sound recordings and films to last 70 years from the date of first publication

Restrictions on devices that undermine “effective technological measures” and new restriction on “use”. Also new penalties.

New penalties for devices or systems that decode encrypted satellite signals

New criminal enforcement provisions


A-USA FTA

What does signing the WIPO Copyright Treaty mean?

Extension of term of protection of photographs. Introduction of a right of distribution – we are

likely to apply “national exhaustion” principle


A-USA FTA

What does signing the Performances and Phonograms Treaty mean?

Expansion of rights of performers from right of authorisation currently [s248]

Performers to get proprietary [assignable] rights of reproduction, distribution, rental and making available fixed performances.

Also moral rights Right of remuneration


A-USA FTA

What are the limitations that might benefit “service providers”? General description: legal incentives to

cooperate with copyright owners Specified as:

limits on scope of remedies available against them

preclusion of monetary relief reasonable restrictions on court ordered relief to

compel or restrain certain actions


A-USA FTA

What are the conditions Service provider must:

“not initiate the chain of transmission…not select the material or its recipients…”

adopt an implement a policy of terminating the account of repeat offenders

adopt and implement “standard technical measures” The right to benefit from each function stands or falls

alone. Apart from “Standard Technical measures” a condition

can’t involve a requirement to monitor or seek facts about an infringing activity.


A-USA FTA

What are Standard Technical Measures?

Standard Technical measures must be: accepted in the territory of each party developed through an open voluntary process

by “a broad consensus of copyright owners and service providers”

available on reasonable non-discriminatory terms

not impose substantial costs or burdens on service providers or their networks.


A-USA FTA

What else to service providers have to do? [1]

In relation to caching through an automatic process (B): Only allow users who have met conditions to access

cached material (?) Comply with “refreshing, reloading or other updating”

rules made by publisher [in accordance with industry standards and generally accepted in the territory of each party]

Not interfere with technology at originating site Not modify content in transmission to subsequent users Expeditiously removing or disabling access where a

effective notice of infringement has been received.


A-USA FTA

What else to service providers have to do? [2]

In relation to storage at the direction of the user and or “information location tools” (C and D): Not receive a financial benefit from the activity

if it could control the activity; Expeditiously remove or disable on becoming

aware or receiving a “effective notice” Publicly designating a person to receive such

notices.


A-USA FTA

More guidance on the detail Court power will be limited to:

terminate account/s or block a foreign address (for transmission) Remove or disable access to material, terminate account/s,

other remedies… provided they are “the least burdensome… among comparably effective forms of relief”.

No ex-parte orders except for preservation of evidence. Formal notice procedure with penalties for false statements Immunity for taking down and also for republishing! Administrative or judicial procedure for expeditiously finding

details of an alleged infringer.


A-USA FTA

Summary of important changes

Additional and different to BSA Schedule 5 Complex detail in the qualifying definitions for

ISP immunity: cannot assume coverage No “knowledge” test for transmission at all Very conditional immunity for caching Immunity for continued publication! Limits on remedies and ex-parte orders New procedure for obtaining identity of alleged

infringer [?].

Documents

Australia-United States Free Trade Agreement Aspects of interest A-USA FTA Patrick Fair