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The ADA Monthly Intellectual Property Wrap-Up
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A summary of recent legislation, cases, reports and other events relating to intellectual property and the public interest, published by the Australian Digital Alliance.
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August 2006
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[1] About this Publication
[2] Copyright Amendment (Technological Protection Measures) Bill 2006: Available For Comment
[3] What's Included in the Draft Provisions
[4] Exceptions Government is Seeking Further Comments On: ADA Seeks Your Input
[5] Additional Comments And Summary
[6] I can copy, right?

[1] About this publication

This summary of recent IP (but chiefly copyright) happenings of relevance to Australia is published by email and on the Australian Digital Alliance website at http://www.digital.org.au/issue/issue.htm. If you have any suggestions as to what should go in the next issue, please let Sarah Waladan know by email: (swaladan@nla.gov.au).

Nothing in this publication constitutes legal advice.

[2] Copyright Amendment (Technological Protection Measures) Bill 2006: Available For Comment

The draft Exposure Bill implementing Australia's obligations in relation to the Australia-US Free trade agreement as it relates to technological protection measures ("TPMs") is now available for comment on the Attorney-General's Department's website.

Also available on the Attorney-General's Website is:

The Attorney-General's Media Release in relation to the Bill;

A Summary of the exposure draft provisions; and

The AGD e-News on Copyright

The Government will also release for public comment, presumably in the next month:

1. A Draft Exposure Bill in relation to the reforms announced on 14 May 2006 regarding the copyright exceptions (in response to the Fair use and other copyright exceptions review);

2. An Exposure Draft of Amendments to the Copyright Regulations.

All of these amendments are intended to be introduced into Parliament mid-October.

In the information that has been provided in the above documentation, the Government is specifically asking for comments in relation to the following:

1. Comments in relation to the Copyright Amendment (Technological Protection Measures) Bill 2006 by Friday 22 September 2006

2. Comments regarding additional exceptions which are not included in the current proposed scheme, however which the Government is seeking additional advice on, by Monday 25 September 2006.

[3] What's Included in the Draft Provisions?

In summary, the legislation bans:
1. Circumventing an access control technological protection measure (s.116AK)
2.Manufacturing etc. a circumvention device for a technological protection measure (s.116AL) (NB this includes importing, distributing/offering/communicating to another person)
3. Providing etc. a circumvention service for a technological protection measure(s.116 AM)

In the absense of an exception, a person breaching one of these provisions of the copyright Act is also subject to criminal penalties as indicated at sections 132APA - 132 APC.

Definition of TPM & Scope of What is Banned
From the above information, it is clear that the Government intends to maintain a limited definition of TPM (as argued for by the ADA) so that the TPM scheme only applies in relation to the protection of rights encompassed by copyright. The definition of 'access control TPM' is defined in the draft Bill as:

"A device, product or component (including a computer program) that:

(a) is used by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject-matter; and

(b) is designed, in the normal course of its operation, to prevent or inhibit the doing of an act:
(i) that is comprised in the copyright; and
(ii) that would infringe the copyright;

by preventing those who do not have the permission of the owner or exclusive licensee from gaining access to the work or other subject-matter."

TPM is similarly defined and includes 'an access TPM'.

Digital devices which are not designed to prevent or inhibit people from infringing copyright will not be covered. It is also clearly stated that "To avoid doubt, a device, product or component (including a computer program) that is solely designed to control market segmentation is not an access control technological protection measure". This addresses a concern by the ADA and confirms that circumvention (for example via multi-region DVD players) of regional coding will not be covered by this scheme.

Exceptions Included In Legislation

The Government provides for the following exception in the Draft Exposure Bill:

  • interoperability between computer programs
  • encryption research
  • computer security testing
  • online privacy
  • law enforcement and national security, and
  • acquisitions by libraries and other related institutions;

These are the exceptions that are specifically allowed by the AUSFTA at 17.4.7 (e)(i)-(vii).

Exceptions That Will Be Included In Regulations

In addition to these, in the summary of the exposure bill, the Government indicates that it will also include the following exceptions in the draft exposure amendments to the Copyright Regulations (which is not yet available), as a result of the process contained in Article 17.4.7 (e)(viii) which allows Australia to create additional exceptions other than those specifically stated in the AUSFTA, and which the House of Representatives Legal and Constitutional Affairs Committee conducted a review and made various recommendations (See previous ADA wrap) in relation to:

  • an exception for reproduction of computer programs to make interoperable products (as per s.47D)
  • an exception for reproduction and communication of copyright material by educational and other institutions assisting people with disabilities (Pt VB Divisions 1 - 3, but not division 4)
  • an exception for reproduction and communication of copyright material by libraries, archives, and cultural institutions for purposes of s.49, 50, 51A, 110A, 110B,
  • an exception for the inclusion of sound recordings in broadcasts and the reproduction of sound recordings for broadcasting purposes (s.107, 109)
  • an exception for access where a TPM is obsolete, lost damaged, defective, malfunctioning or unusable and a replacement TPM is not provided;
  • an exception for access where a TPM damages a product, or where circumvention is necessary to repair a product.

The Government's summary of the scheme notes that the scope of these exceptions will be clarified in the exposure draft of the Regulations which will be available for comment in the next month. It will be important when this occurs to ascertain whether all of the exceptions will apply to all 3 matters outlawed at s116AK-AM.

Additional Provisions of Interest

In addition to the exceptions for libraries and educational institutions, in circumstances falling outside of these exceptions, if an institution finds themselves embroiled in legal proceedings, the proposed s.116AP (contained in the draft Bill) will enable a Court to refuse to award damages for either manufacturing a circumvention device or providing a circumvention service, if the defendant is a library, an educational institution, or a public non-commercial broadcaster, and if the Court is satisfied that the institution was not aware and had no reason to believe that the device was either a circumvention device for TPM or that the service was a circumvention service for a TPM.

Also, the proposed s.202A outlaws "groundless threats of legal proceedings in relation to circumventing an access control technological protection measure" (whether the threats are made by the copyright holder or another person) and allows the person threatened to bring an action against the person making the threat if the threat is unjustifiable. Remedies that a court can provide include:

  • A declaration that the threat is not justifiable
  • an order granting an injunction restraining the first person from continuing to make the threat;
  • an order awarding damages for loss suffered as a result of the threat .

[4] Exceptions Government is Seeking Further Comments On

In addition to the above exceptions which the Government has indicated it will implement either via the draft exposure bill or via the regulations, the Government is additionally seeking comments in relation to whether it should include the following further exceptions to the scheme:

  • an exception for making back-up copies of computer programs;
  • an exception for correcting errors in computer programs;
  • an exception for allowing institutions to assist people with
  • an intellectual disability;
  • an exception for making copies of works for inclusion in broadcasts, and
  • an exception for making copies of copyright material for criticism, review or news reporting by broadcasters.

In other words, unless the Government, via this process of consultation, receives sufficient evidence as to why these additional exceptions should be included, they will not be included.

**ADA Seeks Your Input**

The ADA will be consulting with Government in relation to all of the above matters and seeks any comments from its members in relation to:

1. The draft exposure bill and the exceptions that have been included in the Bill and will will be included in the regulations;

2. Comments in relation to the additional exceptions which the Government is seeking further comments on. In particular, if members have relevant examples of circumstances within their institutions which require such exceptions (whether past, current, or future) please email me any details so that I can include your comments in our consultations with Government.

[5] Additional Comments and Summary

1. At the outset of the TPM exceptions review, there was some confusion in relation to how 'specific' exceptions had to be to comply with the AUSFTA. This problem has been addressed via the attachment contained at Annex A of the e-News, which contains a process by which any proposed exceptions must comply in order to be considered appropriate. All exceptions proposed in the future presumably will be put through the Annex A process by the Attorney-General's Department.

2. Whilst it is clear in the summary document that "to discourage the dealing in these devices, the provisions will provide strong criminal penalties of five years imprisonment and/or fines of 550 penalty units (currently $60,500)", one matter that is not entirely clear from the documentation provided by the Attorney-General's Department is to what extent people will be able to 'deal in' devices in order to access the proposed exceptions. This is a matter the ADA will consult further on, however, presumably stakeholders will be able to deal in devices at least in order to access all exceptions to the scheme that are intended to be introduced in the Act and the Regulations.

3. Interestingly, the Government notes in its summary document that "The Copyright Act already includes a number of exceptions to copyright infringement in special cases. It is not intended that the new TPM scheme should shift this balance in the Copyright Act." The ADA supports this approach and will seek clarification on this.

In Summary, as mentioned above, the Government plans to introduce these changes, along with further changes to the regulations and in relation to the copyright exceptions, into Parliament in mid-October.

The above comments are provided based on an initial perusal of the Government documentation provided, and are intended as a summary of important aspects of the scheme, however the ADA will provide any further comments to members via this publication and/or email as they arise.

The ADA will of course make a submission to the Attorney-General's Department in relation to the further review and exception proposed (as indicated above). ADA members with comments regarding this should contact the ADA via phone or email ASAP.

From an initial perusal of the documentation available, certainly the Government has indicated an intention to implement an AUSFTA compliant scheme that avoids impeding the functions of ADA members.


[6] I can copy, right?
Yes, you can copy this publication. Feel free to send it to friends or colleagues, print it off or even archive it on your website provided that all text is included or, in the case of an excerpt, appropriate credit is given
 
 
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