[Linux-aus] Free Trade Agreement

Jan Schmidt jan at slug.org.au
Fri Aug 27 09:28:19 UTC 2004

Name: Jan Schmidt
Address: 17/2 Bradley Pl, Liberty Grove, NSW 2138
Phone: 0404 896 750

I can't decide whether Senator Coonan hasn't read Chapter 17 of the FTA or 
if she is being disingenuous while toeing the party line. I'd like to
hear the logic behind her assertion that the FTA "won't have an effect on 
Australia's approach and treatment" of software patents. (1)

Article 17.9 calls for Australia and the US to reduce "differences in law 
and practice between their respective systems" (2) and requires changes to key 
phrases in Australian law on patentable inventions, in particular relating 
to the granting of "mischievous ... or generally inconvenient" patents. (3)

Under these changes, Australia will be open to the flood of bogus patent 
applications that is currently inundating the USPTO. In the US system, 
many granted software patents are invalidated when litigated. (4)

Unfortunately, Open Source developers and small software houses won't have 
the funds to defend themselves when it happens here - only the large software 
companies (none of them domestic) will. 

Worse, Chapter 17 imports key elements of the US Digital Millennium
Copyright Act - a scattergun piece of legislation that (for example)
allowed printer manufacturer Lexmark to stop a rival company from 
making toner cartridges that fit Lexmark printers. (5)

In short, the DMCA allows companies to prevent competitors (such as Open 
Source software) from inter-operating with their products.

I'm disappointed that the ALP proposed amendments don't touch these issues 
at all.

(1) SMH letters, 2nd August 2004
(2) http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html
(3) http://linux.org.au/papers/fta_comparison_table_040322.pdf 
(4) http://www.osriskmanagement.com/linuxpatentpaper.pdf
(5) http://www.theregister.co.uk/2003/01/10/lexmark_unleashes_dmca_on_toner/
Jan Schmidt                                  jan at slug.org.au
Sydney Linux Users' Group

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