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Copyright reform process continues

ACS staff, Information Age

20/10/2006 20:22:53

In our last issue, lawyers Minter Ellison offered an overview of impending changes to Australian copyright law and its implications for ICT. An exposure draft of the legislation was released in early September for comment. Minter Ellison has this to say:

The Australia United States Free Trade Agreement (AUSFTA) requires Australia to amend the technological protection measure (TPM) provisions of the Copyright Act 1968 (Act) by January 1, 2007.

The AUSFTA requires Australia to prohibit the use of devices and services to circumvent TPMs. Currently in Australia, use of TPMs is not prohibited but activities related to circumvention devices (such as manufacture or sale) are.

The AUSFTA allows for discretionary exceptions to the prohibition on the use of circumvention devices and services to be introduced. The House of Representatives Standing Committee on Legal and Constitutional Affairs (LACA) was tasked with examining what discretionary exceptions, if any, should be introduced.

LACA published its report in February this year, making a number of recommendations for the interpretation of the AUSFTA (including the definition of TPM) and the introduction of exceptions. The exposure draft responds to those recommendations.

The exposure draft proposes to amend the Act to define TPM as a device, product or component that prevents or inhibits copyright infringement. An access control TPM (a specific kind of TPM) is defined to be a device, product or component that prevents or inhibits copyright infringement "by preventing those who do not have . . . permission . . . from gaining access to the work or other subject-matter".

It appears that the Government has adopted the LACA recommendation that access control TPMs should be linked with copyright protection. However, it is unclear how the requirement that an access control TPM prevents the infringement of a work by preventing access to that work would apply in practice.

Another LACA recommendation has been accepted by excluding region coding devices (defined in the exposure draft as devices that are "solely designed to control market segmentation") from protection as access control TPMs.

The exposure draft prohibits the use of devices and services to circumvent access control TPMs. It is an offence to circumvent access control TPMs, punishable by a fine of up to $6600.

The exposure draft also prohibits dealings with devices and services to circumvent all types of TPMs (including access control TPMs). Dealing in circumvention devices and services will be punishable by up to five years' imprisonment and/or a fine of up to $60,500.

The concept of "dealings" has been expanded and will include distribution, offering, provision and communication. There will no longer be a requirement for a dealing to be "in the course of trade".

Exceptions apply in relation to both the prohibition on circumvention and the prohibition on dealings with circumvention devices and services. Interestingly, the exception in relation to law enforcement and national security extends to "performing a statutory function, power or duty" and is potentially quite broad.

In all cases it would be for the defendant to prove that an exception applied.

In relation to the prohibition on circumvention of access control TPMs there will also be exceptions for "prescribed acts", being the additional discretionary exceptions considered by the LACA report. The exposure draft indicates that these additional exceptions will be contained in the Copyright Regulations.

The proposed amendments to the regulations will be released for comment in the next few weeks and will include exceptions for:

• certain uses of circumvention devices by educational institutions; • certain uses of circumvention devices by institutions assisting people with disabilities; • certain uses of circumvention devices by libraries, archives and cultural institutions; • use of circumvention devices to facilitate the inclusion of sound recordings in broadcasts; • use of circumvention devices to access material where an access control TPM is obsolete, lost or damaged; • use of circumvention devices where an access control TPM damages a product; and • use of circumvention devices where it is necessary to circumvent an access control TPM in order to repair a product.

A limited review is being conducted to assist the government determine whether to introduce further exceptions for the use of devices to circumvent access control TPMs in order to:

• make back-up copies of computer programs; • correct errors in computer programs; • assist people with an intellectual disability; • make copies of works for inclusion in broadcasts; and • make copies for criticism, review or news reporting by broadcasters. • If, following submissions, the Government considers these exceptions necessary, they will be added to the regulations. Submissions were due by September 25, 2006.