After the Australia-US Free Trade Agreement came into effect on 1 January 2005 there was widespread concern from some copyright users and consumer groups about Australia's obligation to introduce stronger protection of technological protection measures (TPMs). Australia had two years in which to introduce these measures, and has now done so by amending the Copyright Act 1964 (Copyright Act). The amendments were introduced by the Copyright Amendment Act 2006 which received royal assent on 11 December 2006, with the relevant provisions having come into effect on 1 January 2007 (Amendment Act).
A TPM is a digital lock – normally implemented using some form of password protection or encryption software – used to prevent unauthorised access to and use of digital material. TPMs enable copyright owners to protect material from piracy, as only authorised users are legitimately able to open these digital locks.
A key problem with copyright holders relying on TPMs is the availability of software and hardware devices (for example, microchips) that can disable or circumvent TPMs.
The Amendment Act introduces two definitions in relation to TPMs – an 'access control technological protection’ measure (Access TPM) and a 'technological protection measure' (TPM). An Access TPM is a technology used in connection with the exercise of copyright rights to control access to copyright protected material, such as a technology that operates a timed film download service. A TPM is a technology that prevents, inhibits or restricts the doing of a copyright act controlled by the owner, for example, copy control technology incorporated on a music CD.
The Amendment Act builds on the existing legislative scheme (which already provided criminal penalties for dealing in circumvention devices and services) by strengthening laws surrounding manufacturing, importing, offering and providing devices, and offering and providing services that may be used to circumvent Access TPMs and TPMs.
Perhaps the most significant amendment is the introduction of an offence (and related civil and criminal penalties) for using a circumvention device to break an Access TPM in circumstances where the person knows, or ought reasonably to know, that using the device in that manner would have that effect. Prior to these amendments coming into force, it was not an offence to use a circumvention device. It is still not an offence to use a device or service to circumvent a TPM.
The Amendment Act provides specific exceptions to liability for using a circumvention device:
- Permission : a TPM can be circumvented with the permission of the copyright holder
- Interoperability : a TPM can be circumvented for the purpose of achieving interoperability of an independently-created computer program with the original TPM-protected computer program
- Encryption research : a circumvention device can be used to determine flaws in encryption technology when used by a specified person who has obtained permission from the copyright holder (or has made a good faith attempt to obtain that permission)
- Computer security testing : circumvention is permitted, with the permission of the computer, computer system or computer network owner, to test, investigate or correct the security of a computer, computer system or a computer network
- Online privacy : circumvention is permitted where it is done for the sole purpose of identifying and disabling the undisclosed capability to collect or disseminate information about the online activities of a user (so long as it does not affect the user’s ability to access the work or other subject matter)
- Law enforcement and national security : circumvention is permitted in relation to anything lawfully done for the purposes of law enforcement, national security or performing a statutory function, power or duty by or on behalf of a Commonwealth, State or Territory
- Libraries : libraries and educational institutions will be able to use circumvention devices for the purpose of making an acquisition decision in relation to work or other subject matter
There is an important additional requirement that the computer program (in the case of interoperability and computer security testing) or work or other subject matter (in the case of encryption research and online privacy) be a non-infringing lawfully obtained copy. In addition, the act performed (by the circumventor) must not infringe the copyright in that computer program, work or other subject matter.
The Amendment Act also provides for additional exceptions to be made by regulation.
Significantly, the new scheme does not apply to some technologies which the Government assessed as not being sufficiently related to copyright rights, such as:
- technologies solely designed for the purpose of market segmentation in cinematographic films or computer programs (such as region coding on DVDs) and
- computer programs embodied in a machine or device protecting it from competition in aftermarket goods (ie restricting the use of goods or services in relation to that protected device – an example being embedded software that restricts third party inkjet printer cartridges from working with a particular printer).
Recent developments in the US suggest that protection against circumvention of TPMs can in some cases restrict the legitimate use of goods by consumers. For example, the US Federal Trade Commission recently took action against Sony for including secret ‘root kit’ software on its audio CDs that was designed, among other things, to limit the devices on which the CD could be played.
With digital content – music, movies, streaming media, books, journals, newspapers, blogs and podcasts – increasingly woven into the very fabric of Australians’ everyday lives, it will be interesting to see how the inherent tension between consumer rights and TPMs plays out before Australian courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.