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Copyright Laws: A force to be reckoned with

Feature Articles

Cite as: (2007) 81(6) LIJ, p. 64

The struggle continues between the rights of copyright owners to protect their work in cyberspace and the rights of legitimate users to access it.

By Adam Sauer

The struggle continues between the rights of copyright owners to protect their work in cyberspace and the rights of legitimate users to access it.
By Adam Sauer

The existing Australian copyright regime is being challenged by the exponential development of the Internet and associated technologies, a phenomenon which is leaving the law to play the “perpetual game of catch-up”.[1] 

From a copyright owner’s perspective, there is the fear that the existing legal regime cannot sufficiently protect their work in cyberspace. To bolster protection provided by the Copyright Act 1968 (Cth) (Copyright Act), owners are increasingly using technological protection measures (TPM), technologies designed to control access to and the use of digitised works.[2] TPM were given legislative support by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) (Digital Agenda Act) ss98 and 100. From a user’s perspective, TPM and anti-circumvention provisions impinge on their use of a copyrighted work and in some cases override their rights under the Copyright Act. From a copyright owner’s perspective TPM merely reinforce existing legislative protection.

At the heart of the debate is the extent to which the balance is maintained between copyright owners’ and users’ rights in relation to copyrighted works. Australian law in its present state, coupled with the extent to which TPM can “lock-up” a work, seriously threatens to tip the balance in favour of copyright owners and thus undermine copyright law.

Technical protection measures

The Copyright Act s10(1) defines a TPM as:

“ ... a device or product, or a component incorporated into a process ... designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work ... by either or both of the following means:

(a) ... ensuring that access ... is available solely by use of an access code or process ... with the authority of the owner or exclusive licensee of the copyright;

(b) through a copy control mechanism”.[3] 

On the judicial front, the majority of the High Court in Stevens v Kabushiki Kaisha Sony Computer Entertainment[4] (Sony) accepted the definition of TPM given by Sackville J in the Federal Court: “a device ... which utilises technological means to deny ... access to ... or limits a person’s capacity to make copies of a [copyrighted] work ... and thereby ... prevents or inhibits ... acts which, if carried out, would or might infringe copyright in the work” [38]. TPM can also control the use of a work by allowing access only via specific devices or programs, limiting the number of times and the time period of access, and inhibiting modification, downloading or redistribution.

Aside from the practical denial of access, it is not TPM that are the operative factors in restricting access to works so much as the legislative prohibitions on circumventing TPM. The Copyright Act does not expressly prohibit the use of a circumvention device; however, it does prohibit certain dealings with such devices which in reality may make obtaining a circumvention device difficult.[5] Section s116AN of the Copyright Amendment Act 2006 (which recently passed through the Senate and has received royal assent), does enable copyright owners to bring an action against an individual who circumvents an access control TPM, if the person knew or reasonably ought to have known, the result of their act. However, this aspect has not yet been incorporated into the Copyright Act.[6] 

The need for TPM and anti-circumvention provisions

Before the Digital Agenda Act, the Copyright Act protected works on the Internet just as it protected works in the real world.

The key reasons TPM are now being employed is that the Internet enables easier and speedier copying and dissemination of information and, more importantly, the Internet and associated technologies have developed at a pace that outruns the law. The very prohibition against the circumvention of TPM contained in the Digital Agenda Act highlights the fact that just as a work can be protected, protective measures can be broken. WR Cornish believes that “technical control ... seems the only hope for preserving ... copyright industries [as they exist on the Internet] in something resembling their present form”.[7] This is because, as Lawrence Lessig notes, in cyberspace “law is defined not through ... statute but through the code that governs the space”; quite simply, in cyberspace “code is law”.[8] TPM are an example of code at work. The law plays a supporting role by inhibiting circumvention of TPM but ultimately protection of digital works is “not so much [by] copyright law as copyright code”.[9] 

The culture, construction and content of the Internet may also inherently necessitate TPM. The Internet is “a decentralised, global medium ... [which] no single entity ... administers”[10] and no one individual can claim to have invented.[11] The Internet Engineering Task Force in its development of Internet protocols operates by an “open process ... [whereby] any interested person can participate ... and make ... [their] voice heard on the issue”.[12] William Gibson notes that cyber-culture “no longer ... use[s] words like appropriation or borrowing to describe those very activities” because the activities they describe are inherent in Internet use.[13] Such free dissemination stands in vast contradiction to traditional protectionist copyright law.

Problems with TPM and the anti-circumvention provisions

Restrictions on legitimate use

Concerns have been raised by both the federal government and international bodies regarding the extent to which TPM and anti-circumvention legislation curtail non-infringing use of works.[14] 

Legitimate use, but also access generally, is a major issue given that information is increasingly being transmitted in digital form. For example, books are now available in digital format as eBooks which can be purchased and downloaded online and can only be read using programs from Microsoft and Adobe. The reading programs of both companies contain TPM and generally consumers are prevented from printing, copying the entire file or sections of text, redistributing the file and may be limited in the number of times they can read and download the one eBook. The exceptions to the prohibition on circumventing access control TPM in the Copyright Amendment Act 2006 s132APC do not appear to enable an individual unlimited access in the above situation. Further, the restrictions on copying portions of the work may infringe the user’s right of fair dealing under the Copyright Act.[15] This example illustrates that the anti-circumvention provisions in their current state come dangerously close to giving copyright owners (who are often corporations and whose ultimate concern is commerce not culture) undue “control over the use of culture”.[16] 

This situation is contrary to that envisaged by then Attorney-General Daryl Williams, as stated in his second reading of the Copyright Amendment (Digital Agenda) Bill 1999, that the “central aim [of the Bill] ... is to ensure ... copyright law continues to promote creative endeavour and, at the same time, allow reasonable access to copyright material in the digital environment”.[17] It is widely acknowledged that illegitimate use of copyrighted works, especially those in the digital domain, occurs and owners should be able to protect against this. It is the responsibility of the legal system to regulate TPM so illegitimate use can be minimised while legitimate use can be maximised.

“Ubercopyright”

Copyright law involves the balancing of the rights of owners and users of copyrighted works – the respective interests are essentially protection/control and access/freedom. This balance of rights is a delicate one which some fear the Digital Agenda Act has upset to the extent that it has created an “übercopyright” in favour of copyright owners.[18] 

The majority of the High Court in Sony warned that in defining TPM, “it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it” [47].[19] The current state of the law arguably does extend the monopoly. As the eBook example illustrates, there is the risk of private bodies co-opting works via technological methods. TPM may not just give copyright owners the power to protect their interests but the power to infringe the public’s statutory rights.

Such strong control in the hands of copyright owners is a cause for concern because owners owe no responsibility to the public in terms of the copyright balance and are thus free to outstretch the provisions of the Copyright Act; the Copyright Amendment Act 2006 has not curtailed this possibility. Unlike laws, codes are developed and applied by private individuals or corporations and unlike legal control mechanisms, for the most part, code is not subject to any external review or curtailment.

Alternatives to the current legal and technical regimes

Fair use

For cyber-author John Perry Barlow, existing copyright laws cannot accommodate the Internet since they are predicated on notions of physical property whereas the digital domain is incorporeal.[20] Information as it exists in cyberspace is in digital form, and once digitised information is “freed” from the vessels such as books or celluloid that previously contained it. Barlow notes that prior to digital technology, by and large, “to express was to make physical” and “the value was in the conveyance ... not the thought conveyed”. Hence, the problems applying traditional copyright law which protects the expression not the idea to cyberspace and digital works.

The idea that the Internet is such a novel medium that it requires its own specific legislative regulation has not found favour with the High Court.[21] However, it may be that Australia needs to widen the current “defence” of fair dealing as it exists under the Copyright Act so it is more akin to the fair use provisions under US copyright law. This proposal was the subject of a federal government issues paper but as yet no reforms have been implemented based on it,[22] although fair dealing provisions have been extended under the Copyright Amendment Act 2006.[23] The US defence is an “open-ended” and more flexible exception which “allow[s] the courts to determine whether a particular use of copyright material is ‘fair’ and ... lawful”.[24] However, the US concept of fair use is grounded in legislatively implemented doctrines and rights, such as free speech and constitutional powers of Congress regarding copyright related laws, which are not as explicitly stated in Australia, therefore it may be artificial to graft it onto Australian law.

Perhaps the simplest method of giving the current Australian fair dealing provisions meaning is to allow users with an original and legitimate version of a work to exercise their full rights under the Copyright Act in respect of the work. This could be done through code and enforced by legislation restricting the powers of TPM that may be applied to a work. This alternative would create a more balanced situation where the owner’s copyright is protected and users’ rights are upheld.

Alternatives to copyright

The Internet community is increasingly developing alternatives to supplement the traditional copyright regime. The Free Software Foundation (FSF), copyleft and Open Source licences all allow open access to the source code of particular programs and unrestricted rights to copy, adapt, improve and distribute the works.[25] Under a copyleft licence, for example, users are granted rights on the basis that if they redistribute the code or versions thereof they do so under the same licence, and if a person uses another’s material they are equally required to make their own material available for reuse. The aim of these licences is to ensure “democratic access to information and technologies”.[26] 

The extent to which these approaches are adopted remains to be seen. While they are appealing to creators in cyberspace, it is unlikely they will be embraced by large scale commercial owners of copyright who in reality control access to the majority of and most commercially valuable copyrighted works.

Conclusion

The impact of the Internet and digital information sees the law trying to balance the interests of two opposing groups. There is a struggle to find some common ground where copyright owners can protect their work from unlawful use, while at the same time not preventing legitimate users accessing such works and exercising their rights in relation to them.

With the implementation of the Digital Agenda Act it seems the law, as adjudicator of this debate, has sided with the owners. There is no valid reason why users should have fewer rights in respect of digital works than they do physical works. If the current state of affairs continues, user rights are likely to be further diminished by TPM. Furthermore, owners will gain more power as TPM become more advanced and are applied to a greater variety of digital works and will thus obtain greater control over culture in general.

The law can no longer afford to remain two steps behind the evolution of technology, for it risks becoming less relevant in an increasingly technological society and being subsumed by TPM and the like. Licensing regimes proposed by some in cyberspace will not adequately safeguard the user, given that they are unlikely to be widely embraced. Rather than forcing users of copyrighted works to illegally circumvent TPM to exercise their rights, the Copyright Act should be amended to allow legitimate users their legitimate access to works.


ADAM SAUER is an articled clerk at Norton White. He thanks Dr Melissa de Zwart, David Sauer, Clare Cunliffe and Emma Noack for their assistance with this article. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


[1] William Gibson, “God’s little toys: confessions of a cut & paste artist” (2005) Wired, http://www.wired.com/wired/archive/13.07/gibson.html (accessed 1 May 2007).

[2] All references to a “work” include “other subject matter”.

[3] The Copyright Act s10 also incorporates the concept of an “access control technological protection measure” but this does not appear to expand greatly on the definition of technological protection measure, which refers to the former concept. Indeed, the “access control” provision only incorporates TPM concepts by implication; “access control” gains more relevance when referred to in the definition of TPM.

[4] [2005] HCA 58.

[5] Circumvention device is defined in s10. See generally s116A for the prohibitions. Sections 132(5A) and (5B) of the Copyright Act create offences in respect of the prohibitions in s116A.

[6] There are a number of exceptions to the prohibition contained in the section.

[7] WR Cornish, Intellectual Property: Omnipresent, distracting, irrelevant?, 2004, Oxford University Press, p54.

[8] Lawrence Lessig, Code: And other laws of cyberspace, 1999, Basic Books, pp20, 6.

[9] Lawrence Lessig, Free Culture, 2004, The Penguin Press, p145.

[10] American Civil Liberties Union v Reno 929 F Supp 824 (1996) (District Court) at 831-832. Kirby J makes similar observations in Dow Jones v Gutnick [2002] HCA 56 at 80.

[11] Lawrence Lessig, Free Culture, note 9 above, p7.

[12] H Alvestrand, A Mission Statement for the IETF, 2004, The Internet Engineering Task Force, http://www.ietf.org/rfc/rfc3935.txt (accessed 1 May 2007).

[13] Note 1 above.

[14] See Ian A Kerr et al, “Technical protection measures: tilting at copyright’s windmill” (2002-2003) 34 Ottawa Law Review 7, pp33-34 in relation to the discussion of TPM at the 1997 WIPO conference and Senate Select Committee on the Free Trade Agreement between Australia and the United States of America, Final Report on the Free Trade Agreement between Australia and the United States of America, pp87-88, 90. See also Kimberlee Weatherall, Submission to House of Representatives Legal and Constitutional Affairs Committee Inquiry into Technological Protection Measures Exceptions, 2005, p8.

[15] In this context, in particular ss40 and 41.

[16] Lessig, note 9 above, p169.

[17] Hansard, House of Representatives, 2 September 1999, 9730, p9748. This philosophy has been enunciated numerous times by the coalition government: see, for example, Attorney-General Philip Ruddock’s press releases at the time of the release of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Review of Technical Protection Measures Exceptions, 2006.

[18] Review of Technical Protection Measures Exceptions, note 17 above, p12.

[19] This concern is echoed in the Review of Technical Protection Measures Exceptions, note 17 above (see, for example, p12).

[20] John Perry Barlow, The Economy of Ideas, 1993, Electronic Frontier Foundation, see http://homes.eff.org/~barlow/EconomyOfIdeas.html (accessed 1 May 2007).

[21] See generally Dow Jones v Gutnick, note 10 above.

[22] Attorney-General’s Department, Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age (2005).

[23] See, for example, ss41A, 103AA and 200AB.

[24] Attorney-General’s Department, note 22 above, p2.

[25] For more information on the licences see Free Software Foundation Inc, FSF – The Free Software Foundation (2006), http://www.fsf.org/; Free Software Foundation Inc, What is Copyleft? (2006) http://www.gnu.org/copyleft; Open Source Initiative, Open Source Initiative (2006), http://www.opensource.org (all accessed 1 May 2007).

[26] Henning Wiese, “The justification of the copyright system in the digital age” (2002) 24(8) European Intellectual Property Review 387, p388.

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