Byzantine Copyright Legislation – TPM definitions fleshed out

 

A Technological protection measure means a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject-matter by either or both of the following means:

(a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject matter) with the authority of the owner or exclusive licensee of the copyright;

(b) through a copy control mechanism.[1]

Article 17.4.7 (f) of AUSFTA permits Australia to provide exceptions to the liability regime set out in the new legislation which directly relates to technological protection measures in respect of certain classes of activities, t hese are set out in article 17.4.7 (e), these exceptions only apply to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against technical protection measures.

Weatherall notes that the  Australian Government chose not to adopt the approach from the European Union, and the United States, pushed by certain copyright owners, which bans not only devices designed to circumvent, but also those which:[2]

• have only a limited commercially significant purpose or use other than to circumvent a TPM; or

• are marketed … with for use in circumventing a TPM.

It could be argued that the legislature was here taking a cautious approach, aimed at ensuring that these new and controversial copyright provisions did not capture too many forms of technology. By refusing to extend the definition of circumvention device, the government avoided capturing a wider range of technologies which might conceivably be used to circumvent technological locks. By parity of reasoning, it could be argued that the legislature only intended to protect TPMs which were for enforcing copyright — not for any other purpose the copyright owners might come up with, in addition to enforcing copyright. It could also be argued that the wording ‘in the ordinary course of its operation’ gives some support to a view that mechanisms which do more than simply prevent infringement may not be TPMs.

Unfortunately, however, the reality is that this interpretation may require more ‘reading in’ than the High Court is prepared to undertake. This approach should, however, be seriously considered by the legislature in its rewriting of the anti-circumvention laws, in light of the concerns that have arisen about region-coding.[3]

Rusty Russell’s view[4] is interesting, as he uses coffee as an analogy to illustrate the harshness of the US style TPM copyright laws. We must protect coffee, coffee owners band together, where losing US120 billion. New Laws, people who break CPMs protecting coffee and people who sell equipment which could break CPM’s which protect coffee. Legal Template, we use a legal template for banning bad things:[5]

  • Knowlingly, or having reasonable grounds to know, does bad things, or
  • Maufactures, imports, distributes, offers to sell to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public, or provides services which:
  • Are promoted, advertised or marketed for the purpose of doing bad things. Or
  • Have only a limited commercially significant purpose or use other than to do bad things or
  • Are primarily designed, produced, or performed for the purpose of enabling or facilitating the doing of bad things.[6]

So in order to provide adequate legal protection and effective legal remedies against the circumvention of TPMs. Copyright owners use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their copyright. A TPM is something which controls access to copyright and doing bad things is defined as interacting with a TPM without authority of the copyright owner.[7]

Russell describes a technical definition of circumvention as some interaction with a TPM that:-

  • Bans legitimate access, encourages seizure of non-copyright rights and erodes copyright legitimacy.

Russell describes a nefariousness definition of circumvention as assisting infringement in that:-

  • Bans nefarious activities and devices, encourages TPMs limited to copyright and reasonable chance of legitimacy.[8]

Legal uncertainty in this area of law favours the big copyright players in the market.[9]

Tracy Sweeny

 


[1] S 10(1)  Copyright Amendment (Technological Protection Measures) Bill 2006

[2] Weatherall, Kimberlee “Of technology locks and the proper source of Digital Copyright laws – Sony in the High Court [2004] SydLRev 41 p. 7

[3] Ibid p. 17

[4] Unlocking IP 2006 Conference. http://www.cyberlawcentre.org/unlocking-ip/2006/index.htm

Accessed 12 September 2006

[5] Russell, Rusty TPMs and coffee.[2006] AIPLRes 25 p. 11

[6] Ibid

[7] Ibid

[8] Ibid p. 35

[9] Ibid p.36

1 Comment

Filed under Copyright Law, Intellectual Property Law

One response to “Byzantine Copyright Legislation – TPM definitions fleshed out

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