Changes to copyright law in Australia covering technological protection measures, time and format shifting and enforcement provisions have been introduced amid a storm of controversy and after much debate.
The Copyright Amendment Act 2006 (which amends the Copyright Act 1968) was passed largely to give effect to Australia’s commitments under the Australia United States Free Trade Agreement.
Changes under the Amendment Act include:
Technological protection measures are "locks", such as passwords and encryption software, copyright owners use to prevent access to or copying of their material.
While the Copyright Act already prohibited the manufacture and commercial supply of devices and services to circumvent technological protection measures, it was not an offence to use a circumvention device. The Amendment Act sought to remedy this by creating two new definitions:
An "Access Control Technological Protection Measure" (ACTPM) is a device, product, technology or component used by the copyright owner (or exclusive licensee) in connection with the exercise of copyright and which controls access to the copyright material. It is an offence to circumvent an ACTPM, deal in (such as manufacture or import) circumvention devices or provide circumvention services in relation to an ACTPM.
A "Technological Protection Measure" (TPM) is an ACTPM or any other device, product, technology or component used by the copyright owner (or exclusive licensee) to prevent, restrict or inhibit the doing of an act comprised in the copyright. It is an offence to deal in circumvention devices or provide circumvention services in relation to a TPM.
The Amendment Act expressly excludes region-coding technologies on films and computer programs from the definitions of ACTPM and TPM. Therefore, it is legal to circumvent a region code on a non-infringing DVD bought overseas so that it can be played in Australia.
Further, the Amendment Act excludes technologies preventing the use of generic spare parts from the definition of ACTPM and TPM. Such technological protection measures can be circumvented legally
Both civil and criminal penalties may apply to a breach of the ACTPM and TPM provisions.
Many activities, such as taping a television show to watch later, once infringed copyright. The Amendment Act has sought to make such day-to-day activities of ordinary people legal. Copyright material may now be:
in the case of a radio or television broadcasts (but not internet webcasts), recorded for listening or viewing at a more convenient time ("time shifting"); and
copied from one format to another ("format shifting").
There are a number of qualifications to these provisions. For example, the recording or copy must be for private or domestic use and it is not permissible to build a "library" by keeping recordings indefinitely. Also, format shifting is only permitted in relation to certain, specified materials. It is not permitted, among other things, to make a backup copy of a CD, copy a computer game or copy copyright material owned by somebody else.
Copyright material may now be used in special cases by:
- libraries and archives;
- educational institutions; and
- people with disabilities;
where the use is non-commercial, does not conflict with forms of normal exploitation of the material by the copyright owner and does not unreasonably prejudice the interests of the copyright owner.
This provides an exception for certain activities which would otherwise amount to a copyright infringement, such as a school copying a video cassette into a different format because the material is no longer commercially available, although the scope of this exception is yet to be determined. Specific advice should be sought in each instance.
The Copyright Act already contained exceptions to breach of copyright for research and study, as well as criticism and review. It is now also permitted to use copyright material for the purpose of parody or satire. The use can be commercial, but it must also be fair.
New measures have been introduced to strengthen the enforcement of copyright, including a three-tier regime of indictable, summary and strict liability offences. As a result, police now have the ability to issue “on-the-spot” fines for copyright infringement.
The Amendment Act also contains amendments relating to proxy caching, hyperlinking, preservation of works by cultural institutions, "reasonable portion" for copying for research and study purposes, the role of the Copyright Tribunal, offences in relation to unauthorised pay TV access, simplification of the process of customs seizure of copyright infringing material, among others.
For further information please contact Nicole Stevens-Warton on +61 3 9608 2264 or n.stevens-warton@cornwalls.com.au or Kathryn de Bont on +61 3 9608 2256 or k.debont@cornwalls.com.au
