The Convention on Cybercrime

The Minister for Foreign Affairs and the Attorney-General announced last week that Australia is to acede to the Convention on Cybercrime.

This step is a very interesting potential "two-edged" sword. The convention should provide the ability to continue to provide greaer confidence in the online world. The conventions actions to seek aligned action and mutual assistance on issues of child pornography and fraud are hard to object to.

One would think that a similar view would apply to the protections of copyright, except that copyright as a legal concept itself is already heavily strained. This is for two principle reasons. The first is the ongoing tendency to extend the period of copyright - the so-called Mickey Mouse clauses. The second is the blurred boundary between copyright infringement and "reasonable use", this becomes increasingly difficult due to the underlying electronic/digital nature of so much copyright material.

The first of these is related to a far more worrying trend - the invention and perpetuation of "rights" for incorporated entities. The extension of copyright is no longer to protect the rights of the creative individual but instead of the corporation. The idea corporations have "rights" started with the application of the concept that they were a natural person and hence able to offer "limited liability" with respect to claims on shareholders. The US Supreme Court has extended this concept to include free speech rights and hece to strike down legislation that baned corporate political donations.

The requirement to create criminalised offences of copyright infringement is not the primary concern - there are already such provisions in Australia. It is the extent that the convention requires legislation that criminalises "aiding and abetting" which could be the basis for some draconian laws on service providers.

More interesting are provisions in the convention that require additional laws that can require data retention. While the latter is already a live issue for telecommunications companies following the European Data Retention Directive. However, the legislative provision foreshadowed in the convention could apply to ALL computers, not just telcos. The Australian Parliament is limited to acting on telco data retention only under the telecommunications powers. The convention would give the Australian Parliament a head of power under the foreign affairs power that they do not otherwise have.

One would think that the process of stating that Australia would accede to the treaty should be accompanied with the same kind of statement as accompanies major reports - an actual statement of the provisions necessary to be introduced to give effect to the convention.

If Green and Coalition Senators want to use Parliamentary resources effectively they might actually use Estimates and other committee processes to expose the plans for legislation attached to this treaty.