[Osia-members] OSIA September/October update

Jack Burton jack at saosce.com.au
Mon Oct 29 13:45:50 AEDT 2018

Afternoon, all.

It's getting to the pointy end of the board term and the last couple of
months have been rather busy for OSIA. So please accept my apologies,
on behalf of the board, for not having put out a September update in
September. As we're almost at the end of October now, today's update
will cover both months.

Since it covers two months, this update is packed with even more news
than usual (and some of the items are quite long), so please bear with
me as you read through it!

** Changing of the guard **

It is with great regret that I inform you that Don Lowe has resigned
from OSIA's board of directors, citing the pressures of other work.

The board accepted Mr Lowe's resignation at its 9 September
(Campbelltown SA) meeting. At that meeting the board were unanimous in
expressing our regret for Mr Lowe's decision to resign and in thanking
him for his service to date.

Regardless of  his resignation from the board, Don remains a great
supporter of OSIA's work and he foreshadowed a possible return to
service on the board in a future term.

Over the last couple of months, the board have had talks with a number
of prospective candidates for directorships.

However, given the proximity of the 2018 AGM & the associated election,
the board has decided not to appoint any further directors to fill
casual vacancies prior to the AGM.

Instead, we encourage all those who have the capability, motivation &
capacity to commit to serving effectively on OSIA's board to nominate
for election as directors at the 2018 AGM.

** Senate inquiry into CPTPP **

Three bits of news here.

Firstly, as foreshadowed in the August update, three (the two mentioned
in August, plus the one in between) OSIA press releases have been
tabled in the Senate, as a result of a question asked of me by Sen.
Claire Moore (ALP, Qld) at the 30 July public hearing. The tabled
documents are now available here:

Secondly, DFAT have answered the question on notice about OSIA's
concerns re TPP Art. 14.17 put to them by Sen. Rex Patrick (CA, SA) at
the 30 July public hearing. Their answer is on page 18 (the last page)
of this document:

Their answer addressed *one* of our concerns with Art. 14.17, in that
they reassured the Committee that, under TPP-11, copyleft terms will not
cease to be enforceable in Australia and that specific performance will
not cease to be a remedy available in Australian Courts for breach of
copyleft terms.

However, DFAT have still offered no assurances at all about how the
*other ten* TPP-11 countries will interpret Art. 14.17. In particular
they've completely avoided providing any opinion or reassurance around
the global value chain Art. 14.17 example OSIA raised in our
teleconference with DFAT & DCA on 11 July.

That's the real danger of Art. 14.17 and in my view the conspicuous
absence of an answer on that point seems almost like an admission that
it is a very real risk...

Finally, on 18 September the Committee's report was tabled in the

The Senate Committee report referenced OSIA 9 times, although 3 of
those were trivial references. The 6 substantive references were in s.
2.25 (p. 18), footnote 14 (p. 28), s. 3.19 (pp. 28-29), s. 4.57 (p. 47,
two separate references) & footnote 50 (p. 54).

The majority report was only slightly more favourable than JSCOT's. The
Senate Committee made some great recommendations (recs. 1--6) about
treaty making process (especially in relation to stakeholder
consultation) post-TPP ... but that's rather like shutting the gate
after the horse has bolted.

Whilst the Committee didn't actually recommend ratifying TPP in so many
words, their support for it is implied by the presence of two
recommendations (recs. 11--12) which *assumed* Australia will ratify

On the up-side, the Committee has also recommended (rec. 7) that the
Government *remove* ISDS provisions from all prior treaties and
legislate to prevent future Governments from entering into any more
treaties with ISDS provisions (a recommendation OSIA has made several
times before)...

...but they make no such recommendation about TPP-11 itself -- so if
rec. 7 were to be implemented, it would lead to the bizarre outcome that
TPP-11 would eventually remain as Australia's *only* ISDS-containing

The dissenting report (by the Coalition Senators) was predictably
depressing -- even more pro-TPP than the JSCOT report!

It was also rather hypocritical, attacking the Cities of Yarra &
Darebin for lodging submissions at all & recommending that they
"refocus their use of ratepayer resources to their core business of
roads, rates and rubbish instead of dabbling in areas where they have
neither experience nor mandate" ... while making no such condemnation
or recommendation with respect to the submission lodged by the State of
Victoria (presumably equally without standing to comment but whose
submission, unlike those of Yarra & Darebin, supported the Coalition's

Sen. Rex Patrick (CA, SA) lodged his own supplementary report, entitled
"TPP-11, even less beneficial than TPP-12 but with all the same
faults". Sen Patrick's report is a pleasure to read -- I'd heartily
recommend it (pp. 71--73) to all members.

His three recommendations were all the same in substantive effect --
that the Senate should reject the enabling legislation -- and differ
only in reasoning. The first two were in accord with OSIA's own

His report also raised one of OSIA's own specific arguments against
ISDS, almost word for word (but without attribution), at s. 1.10 on p.
    "ISDS provisions are also discriminatory in that they grant a right
     to foreign companies that is not available to local companies."

Sadly, this is all moot now (see next item).

** CPTPP enabling legislation passed **

The CPTPP enabling legislation was passed by the House of
Representatives on 17 September and by the Senate on 17 October.

New Zealand's parliament passed their own enabling legislation on 25
October and Canada actually ratified TPP-11 on 26 October.

That makes 6 countries who have passed the enabling legislation, 4 of
which have formally ratified.

All that remains is for Australia & New Zealand to ratify (which, at
this point, are both effectively just rubber-stamp processes) to
trigger TPP-11 Art. 1, 60 days after which TPP-11 will come into force.

After all this time and good work, it is very sad indeed to see
Australia forsake its freedom in favour of the yoke of supranational
regulation by an unelected TPP Commission and the secret kangaroo
courts of ISDS, especially for such a bargain basement price as a mere
0.05% CAGR in GDP until 2030.

I'd like to take this opportunity to recognise the outstanding efforts
of all those who have contributed substantively to OSIA's substantial
body of work on the TPP-{12,11} matters over the last 6.5 years,
including most notably: Don Christie (Catalyst IT), the late Carl
Holden (Holden Dynamics), Brendan Scott (Open Source Law), Daniel Black
(formerly of OpenQuery), Paul Foxworthy (Coherent Software), Mark
Phillips (Automated Test Systems) & Josh Stewart (individual member).

Rest assured that your efforts have not been altogether for nought: the
wealth of experience and corporate memory that OSIA has built up during
the course of this considerable undertaking over almost two thirds of a
decade has put us in good stead to take up the mantle again, in the
face of the next wave of onslaughts in the seemingly unending march of
fake FTAs lining up to threaten our august industry.

More on those in the "DCA meeting..." item.

** Membership renewals **

Membership renewal invoices for FY2018/19 were issued on 7 August.

A big thankyou to all those members who paid their renewal invoices on

For any of you who haven't yet paid, please note that membership
renewals fell due on 30 September -- so if you want your vote to count
at the 2018 AGM, please pay your renewal invoice ASAP.

If you did not receive your membership renewal invoice, please contact
me off-list, so I can update your contact details in our records then
re-send your invoice.

This would also be an opportune time for any former members on the list
to become financial again, or non-members to join for the first time.
To do so, contact me off-list.

OSIA relies on your financial support to make possible all the things
we do for our industry, such as those described elsewhere in the update
and more, so please support the industry body that supports our

** 2018 AGM & board election -- possible delay **

We had previously announced that OSIA's 2018 AGM would be held in
Canberra on 30 November.

Whilst we are still working towards that date, there is now a risk that
the AGM may have to be postponed to early December.

Either way, it is highly likely that this year's call for nominations
will be open for a far shorter period than desirable (in fact, probably
for as little as 6 days if we manage to retain the 30 Nov AGM date).

So, even though the call for nominations has not opened yet, the board
would like to take this opportunity to encourage you all to think about
whether you have the capability, motivation and capacity to commit to
serving as a director of OSIA in the 2018/19 term.

If so, please make the necessary preparations now (secure one financial
member to nominate you and another to second you), so that you can
lodge your nomination expeditiously once the call has opened.

Some may wonder why we haven't just opened the call for nominations
early instead? The answer is simple -- because the 2017/18 annual
report is not yet ready for distribution. Your board are firm believers
that: (a) it is never reasonable to ask members to nominate for
election to the board without first having the opportunity to
scrutinise the prior year's annual report; and (b) although delaying
the process is undesirable, it is still infinitely preferable to
avoiding the delay by releasing an annual report that is incomplete or
otherwise not up to par. Given the unfortunate events of 2017, we're
sure you'll all agree with us on that.

Please bear with us. We expect to release the 2017/18 annual report and
call for nominations by next week.

** DCA meeting re international copyright negotiations **

Please bear with me -- this is going to be a very long news item --
that's unavoidable, as there's a lot of ground to cover.

On 25 September, OSIA Director (public policy) Josh Stewart and I met
in Canberra with representatives of the Commonwealth Department of
Communications & the Arts (international copyright section), at their
invitation, to advise them of Australian FOSS industry views on seven
current international negotiations relating to copyright.

Only one of those (a Russian proposal to WIPO about rights for theatre
directors) was completely irrelevant to OSIA; the other six were all
relevant to some degree or another.

It was a very useful, informative & productive meeting. Three so-called
FTAs were discussed, alongside three current agenda items of the WIPO
Standing Committee on Copyright & Related Rights (SCCRR).

Of those, only RCEP (the Regional Co-operative Economic Partnership --
a concerningly TPP-like deal involving the ASEAN nations, China, Japan,
India & Australia) had been considered by OSIA previously.

OSIA will be lodging a submission to DFAT on RCEP in the near future.
Any members interested in contributing to the analysis & drafting
should contact OSIA director (public policy) Josh Stewart off-list.

Refreshingly, the AU/EU FTA is being negotiated with substantially more
transparency (at least on the EU side). The official EU-proposed draft
text for the IP Chapter is available here:

The board is considering lodging a submission to DFAT on the AU/EU FTA
in the coming months. Members with an interest in contributing to the
analysis & drafting should contact me off-list.

Of far greater concern is the AU / Pacific Alliance FTA (with Chile,
Colombia, Mexico & Peru), the secrecy surrounding which is greater even
than TPP or RCEP (not even a single line of draft text has been leaked
yet). As Colombia is the only Party that isn't also a TPP-11 Party, the
big risk here is that the AU/PA FTA may replicate much of TPP.

The board is considering lodging a submission to DFAT on the AU/PA FTA
in the coming months. Members with an interest in contributing to the
analysis & drafting should contact me off-list.

The WIPO Multilateral Treaty on the the Protection of Broadcasting
Organizations is of significantly less interest to OSIA, as none of our
members are broadcasters (and the draft text explicitly excludes
transmission over computer networks from the definition of
"broadcasting"). However, there is some concern that the provisions
around TPMs might have broader implications beyond just broadcasting.

The board is keeping a watching brief on MTPBO, but is not planning to
take any formal action at present. For those interested, the draft text
is available at:

The WIPO SCCRR action plan on limitations & exceptions seem far more
benign. It explores issues specific to libraries, archives & museums
and those concerning non-print disabilities. Whilst there's nothing in
there that strikes us as concerning for the .au FOSS sector, we do feel
that a FOSS approach (with a heavy emphasis on unencumbered open
standards) might well provide the best solution to some of the problems

The board is keeping a watching brief on SCCR_36/7, but is not planning
to take any formal action at present. For those interested, the draft
plan is available at:

The GRULAC proposal to WIPO for analysis of copyright related to the
digital environment is an interesting beast. The problems it identifies
relate almost exclusively to phonograms (i.e. muscial recordings),
which seem rather outside of OSIA's remit. However, the plan's
authors argue that their proposed solution (mostly even more
restrictive anti-TPM-circumvention measures) should be applied to *all*
digital works, not just phonograms. So OSIA might need to weigh in on
this one after all.

The board is keeping a watching brief on the GRULAC proposal, but is not
planning to take any formal action at present. For those interested, the
proposal is available at:

At that meeting, OSIA & DCA also agreed (informally) to engage more
regularly on matters such as those discussed. The board sees these
sorts of relationships with key Commonwealth agencies as well worth

** Board meetings **

The board met in Campbelltown SA on 9 September. The planned October
board meeting (teleconference) was cancelled to provide the board with
more time to work on key year-end tasks.

The board will next meet in Melbourne on 3 November (this Saturday),
for the last time in the current term.

Any members who may want to meet informally with OSIA directors over
drinks in Melbourne (in or near the CBD) on Saturday evening should
contact me off-list.

For those of you who won't be in Melbourne on Saturday, as always OSIA
members are encouraged to bring any pertinent matters (and indeed your
views on them) to the attention of the board, either on this list or by
contacting any of us directly. The OSIA email addresses of all board
members are available here: https://osia.com.au/about.html

Further planned meetings (noting that, as explained above, there is now
a possibility that these might be postponed for a week or two) are:

Fri 30 Nov (evening) 2018 AGM (Canberra, ACT)
Sat 01 Dec board strategic planning day (Canberra, ACT)
Sun 02 Dec first board meeting of new term (Canberra, ACT)

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