Late last year the Copyright Act was bolstered by a host of new laws which extend copyright owners' powers against copyright infringers. The changes reflect a growing divide between Governments and large corporations who own the rights to films and music on the one hand, and those who support freedom of access on the other.
The Political Climate Underpinning The Amendments
The US Free Trade Agreement (FTA) forced Australia to toughen intellectual property laws, focussing particularly on copyright. The laws reflect the US policy which favours the stringent copyright protection in order to foster innovation and protect corporate profits.
In the recent Federal Budget the Government announced spending of $12.4 million over the next 2 years on intellectual property law enforcement. This is reflective of the Government's growing focus on copyright protection against a backdrop of increasing allegations of piracy and copyright infringement via file sharing resources on the Internet.
Are the Amendments Constitutionally Valid?
One of the recent amendments relates to the use of devices that circumvent 'technological protection measures' fitted in devices like DVD players and Playstation consoles. Under the amendments, such devices are illegal even if used to play legitimate copies of DVDs purchased in different global 'regions'. In addition, the circumvention devices are illegal forever, despite the fact that copyright exists for only a finite period.
His Honour Mr Justice Kirby recently added his two cents at a speech opening NSW Arts Law Week. His Honour foreshadowed a constitutional challenge to the new copyright laws which appear to exceed the Federal Government's legislative powers. His Honour told the audience that the matter had been brought to his attention by His Honour Mr Justice Gummow, another High Court justice.
The Government's Power to Make Laws About Copyright
The Federal Government can make laws about any of the matters referred to in section 51 of the Constitution. Section 51(xviii) of the Constitution permits the Government to legislate about "[c]opyrights, patents of inventions and designs, and trade marks".
The trouble is that the amendments described above do not strictly relate to copyright, and arguably fall outside of the power granted under section 51(xviii).
Some commentators suggest that laws enacted pursuant to the FTA would fall within the scope of the Government's external affairs power (section 51(xxix)). Gadens questions whether the external affairs powers operates as a carte-blanche for the Government to write laws in relation to any matter it chooses, so long as it is the subject of a treaty. In our view, the external affairs power is not so liberal.
So are the amendments Constitutional? The answer at this stage is maybe. For anyone considering mounting a constitutional challenge to the copyright laws, you might have two judges on your side already. Article by Nathan Mattock and Hannah Petrie
t (02) 9931 4966
t (02) 9931 4981
t (07) 3114 0146
t (07) 3231 1507
t:(03) 9612 8411
t (03) 9612 8280
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
IP is the legal property in the innovation in your business and it is that which drives your revenue and profit growth.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).