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Copyright News – Draft Technological Protection Measures Legislation

1. Background

On 1 January 2005 the United States Australia Free Trade Agreement came into effect. One provision of the treaty was that stronger protection of technological protection measures must be included in copyright law by 1 January 2007.

Technological protection measures are technical ‘locks’ like passwords, digital watermarks, access codes or encryption that prevent users accessing or reproducing copyright material.

Currently there are exceptions that allow staff to circumvent technological protection measures. Examples are to make backup copies of computer programs, access under the Part VB CAL licence and to copy print material for students with a print disability. After 1 January 2007 these exceptions are removed.

The Free Trade Agreement allows for circumvention of technological protection measures, but only within a very narrow exception scheme. The Legal and Constitutional Affairs Committee reported that a number of exceptions (including those that Australia already had) should be added to the new legislation. They also criticised the drafting of the agreement for its ‘inexcusable flaw’ that allows users to circumvent technological protection measures where there is an exception, but only if they can make or import a circumvention device themselves. There is no exception for supplying, providing services, offering, provision of or making a circumvention device for someone else.[1]

This means there may be more exceptions granted, but few people or organisations will be able to take advantage of them, without also breaching the new law on supply of a circumvention device.

2. Draft Legislation

On 4 September the Attorney General’s Department released draft legislation that incorporates the requirements of the Free Trade Agreement. This includes increased penalties for circumvention.

• Penalties for dealing in a circumvention device (which could include helping someone take advantage of an exception) include five years gaol and fines of over $60,000.

Proposed exceptions to be included in regulations to the legislation are:

• reproduction of computer programs to make interoperable products under section 47D of the Copyright Act 1968 as it applies to articles only
• reproduction and communication of copyright material by educational institutions assisting people with disabilities under Part VB, Divisions 1-3 of the Copyright Act 1968
• the reproduction and communication of copyright material by libraries and archives for document delivery and preservation under sections 49, 50, 51A, 110A and 110B of the Copyright Act 1968
• access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided, and
• access where a TPM damages a product, or where circumvention is necessary to repair a product.

The Attorney-General’s Department claim that including exceptions in the regulations will result in greater flexibility. Exceptions can be made in conjunction with technological developments.

Two important exceptions will not be included in the regulations, unless the Attorney General’s department is provided with evidence that these exceptions are being utilised. These are:

• An exception to allow circumvention of TPMs to gain access for making back-up copies of computer programs
• An exception to allow circumvention of TPMs to gain access for the reproduction or adaptation of computer programs for correcting errors in computer programs

Submissions on the draft legislation are due 22 September and on the exceptions by 25 September. If staff are interested in providing information for a submission, please contact the Copyright Office. There is more information about the review process on the Attorney General’s Departmental website and e-news bulletin.

3. How could this affect the University?

Region Coding

• Universities were concerned that region codes would be classified as technological protection measures, meaning that region free DVD players could be a circumvention device. This could mean that every time you played a DVD from another region you could be in breach of the law.
• The Attorney-General’s Department have stated in their press release that ‘Region Coding devices aimed solely at stopping people from playing legitimate DVDs or computer games bought from overseas will not be protected by the regime.’ However region codes that are combined with access or copy protection would not be solely for market segmentation. They could still be classified as technological protection measures under the legislation.

Teaching and Research

• If staff or students wanted to circumvent copy protection on a CD to allow them to play a CD in class on a computer (many CDs will only play on CD players, not computers) or to copy a fair portion of the CD under fair dealing for research, for criticism and review, or under the Music Licence, this circumvention would be a breach of the law, although the playing or copying of the CD is not.
• If staff or students studying computer programs or software wanted to make backup copies or copy parts to check errors, it could be a breach of the legislation if they circumvent a technological protection measure to gain access to the program.
• If staff or students circumvented a password that was faulty, to access material they had purchased, this could be a breach of the legislation.

Library

• It will no longer be possible to access software to make backup copies of computer programs or for error correction with CD ROMs, databases or ebooks where licence agreements allowed such activities.

These breaches could incur penalties of fines and imprisonment, if the draft legislation proceeds.

4. Concerns about the Draft Legislation

1. The legislation does not mention Fair Dealing for Research and Study or Criticism and Review. If staff and students can’t access or copy research material under these copyright exceptions, because of technological protection measures, this could have a detrimental impact on research in Australia.
2. The legislation is not clear that region coding will be entirely excluded from the protection of technological measures. It is only mentioned in a note within the legislation itself. Region codes that are combined with copy/access protection could still be included.
3. The legislation assumes that copyright owners have the right to control access to their material once it is made available to the public. But copyright law only refers to the owners’ right to control reproduction, publication, performance, communication and adaptation.[2] This legislation appears to provide owners with an access right by default.
4. There appears to be no provision in the legislation that would allow individuals or organisations to seek help in obtaining or making a circumvention device. Users can only create devices themselves or import a device from overseas.
5. The sections on new exceptions only require the Minister to make a decision about an exception within 4 years of receiving the submission. [3] There is no further detail on the process. Given the speed of technological change, a 4 year review period is impractical.
6. Any exceptions to circumventing technological protection measures can be overridden by contract. Access to copyright material is often controlled by a licence agreement which includes terms that prevent circumvention. This makes the exceptions irrelevant.

Send inquiries to the university's Copyright Advisor.