Trade deal exports DMCA down under

President Bush signs a trade deal that extends controversial software patents and the Digital Millennium Copyright Act to Australia.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read
Australia will be required to adopt U.S. intellectual-property rules, including laws covering the "circumvention" of copy protection, and software patents that have alarmed advocates of open-source software, according to a trade agreement that President Bush signed on Tuesday.

Bush and Australian Prime Minister John Howard touted the agreement at a ceremony in the White House's Rose Garden, saying it will eliminate many tariffs on manufactured goods and agricultural products between the two countries, which exchange $28 billion each year in goods and services.

A less-noticed section of the free-trade agreement deals with copyright.

"The agreement strengthens protections for intellectual property and promotes electronic commerce," Bush said, before signing a bill committing the United States to the arrangement. "Our two nations are committed to the reduction of trade barriers and other restrictions that are keeping too much of the world from the kind of prosperity and opportunity that the developed world takes for granted."

The agreement requires Australia to recognize software patents, to extend the duration of copyrighted works and to essentially adopt key portions of the Digital Millennium Copyright Act. That 1998 law has been attacked by computer scientists and open-source programmers in the United States as stifling innovation and outlawing legitimate activities like making a back-up copy of a legally purchased DVD.

Australia will be required to enact laws punishing anyone who "circumvents without authority any effective technological measure that controls access" to copyrighted work or who distributes hardware or software that is designed for circumvention or is marketed that way. As in the DMCA, some limited exceptions permit such activity by authorized researchers and government employees for "the sole purpose of preventing the access of minors to inappropriate online content."

One section goes further than existing U.S. law and commits both nations to enacting bans on tinkering with "rights management information." A related bill is pending, but has not been approved, in the U.S. Senate.

Australia has already enacted a related law called the Digital Agenda Act of 2000 that is not as sweeping the DMCA and does not permit software patents. Its government is currently conducting a review of the law that's expected to be completed this year.

Because the free-trade agreement effectively short-circuits that review and commits Australia to extending its copyright and patent laws, the Australian Linux community has criticized the deal.

It "will limit the ability of Australian software developers, companies and users to benefit from and contribute to the open-source software industry," Linux Australia says in a position paper. "Taking on the American system of software patents will stifle open-source software initiatives and force Australian users and businesses into using costly and potentially inferior software, without the ability to alter it to suit their needs."

The trade agreement has run into trouble in Australia, which has not yet ratified it. Some members of its parliament have threatened to scuttle the deal unless it includes more regulations targeting drug companies, along with Australian TV and radio content.