Journal of Law, Information and Science
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GAYE MIDDLETON[*]
Recently, there has been a global effort at both national and international levels to develop copyright law to meet the challenges posed by digital technologies. The most significant international developments have been the adoption of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty at the World Intellectual Property Organisation Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions. These treaties aim, among other things, to address uncertainties in copyright law as it applies to digital technologies, while maintaining “a balance between the rights of authors and the larger public interest”. Recognising the need to develop Australian copyright law to meet the challenges posed by digital technologies, the Australian Federal government introduced the Copyright Amendment (Digital Agenda) Bill 1999. The central aim of the Bill is “to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material on the Internet and through new communications technology”. This paper discusses how the Bill seeks to achieve this central aim, and compares the provisions of the Bill with corresponding provisions in the WIPO treaties, the US Digital Millennium Copyright Act and the proposed Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society issued by the European Commission.
“… [W]e are sailing into the future on a sinking ship. This vessel, the accumulated canon of copyright … law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without.”[1]
This statement by John Perry Barlow, rock lyricist and philosopher, reflects one view regarding the future of intellectual property law in the digital age. However, international organisations and governments around the world do not accept this view, as demonstrated by recent national and international efforts to develop copyright law to meet the challenges posed by digital technologies. These challenges arise because:
(a) unlike previous technologies, which required different physical supports for different forms of expression, all forms of expression can be digitised;
(b) digital technologies have greater recording capacity than analogue technologies;
(c) digitisation facilitates the transmission of large volumes of information to remote locations;
(d) digital copies are basically identical to and of the same quality as the original expression; and
(e) digitisation enables users to control where and when material is delivered to them.[2]
On 20 December 1996, the World Intellectual Property Organisation (“WIPO”) Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions (“Conference”) adopted two treaties designed, among other things, to develop copyright and neighbouring rights (collectively, “copyright”) laws to meet the challenges posed by digital technologies. These treaties (“WIPO Treaties”) are:
(a) the WIPO Copyright Treaty (“WCT”)[3]; and
(b) the WIPO Performances and Phonograms Treaty (“WPPT”).[4]
The WIPO Treaties aim to address uncertainties in copyright law as it applies to digital technologies, while maintaining “a balance between the rights of authors and the larger public interest”.[5] While they are not yet in force,[6] the WIPO Treaties are internationally significant, as both signatories and non-signatories are developing their national copyright laws to comply with the WIPO Treaties.
Recognising the need to develop Australian copyright law to meet the challenges posed by digital technologies, the Australian Federal government released an exposure draft (“Exposure Draft”) of the Copyright Amendment (Digital Agenda) Bill 1999 (“Bill”) in February 1999 based on the discussion paper, Copyright Reform and the Digital Agenda (“Discussion Paper”).[7] In light of submissions received from the public in relation to the Exposure Draft, the Bill was revised, and the Bill in its current form was introduced into the Australian House of Representatives on 2 September 1999.[8]
The commentary to the Exposure Draft of the Bill (“Commentary”) states that
The central aim of the reforms is to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material on the Internet and through new communications technology.[9]
While Australia is not yet a signatory to the WIPO Treaties, the Bill also aims to align Australian copyright law with the obligations imposed by those treaties.[10]
This paper will examine how the Bill seeks to achieve the central aim of the reforms, its success in doing so, and the extent to which it accords with recent international developments.
Among other things, the Bill aims to amend the Copyright Act 1968 (Cth) (“Act”) to “ensure the efficient operation of relevant industries in the online environment” and to “promote certainty for communication and information technology industries”.[11]
The Bill seeks to achieve these aims by:
(a) introducing a right of communication to the public and exceptions to that right;
(b) introducing technological enforcement measures; and
(c) addressing liability of Internet service providers (ISPs) for online copyright infringement.[12]
The Bill introduces a new technology neutral right of communication to the public (“communication right”),[13] described as the “centrepiece” of the proposed reforms.[14] “Communicate” means to electronically transmit or make available online a work or other subject matter.[15]
“To the public” is defined as the public within or outside Australia.[16] This ensures that, unlike the current legislation, transmissions of copyright material to audiences outside Australia have copyright protection.[17] The government has decided not to further define the phrase “to the public”, leaving its interpretation to the common law,[18] which provides that “to the public” means “to the copyright owner’s public”, and includes transmissions to a single person.[19] Unfortunately, the Bill does not deal with unauthorised transmissions into Australia from outside Australia. As digital transmissions can easily take place over national borders, this is an important gap in the legislation which should be addressed. One proposal is that transmissions made into Australia be deemed to have occurred in Australia.[20]
The communication right will apply to all copyright material other than published editions of works, and will:
(a) replace and extend the broadcasting right, which currently applies only to wireless telegraphy;[21] and
(b) replace the right of transmission to subscribers to a diffusion service (“cable diffusion right”), which is limited to transmission of copyright material over wires or “paths provided by a material substance”.[22]
The confusion caused by the division of exclusive rights by technological means of delivery[23] was demonstrated in Telstra Corporation Ltd v Australasian Performing Right Association (“APRA”).[24] The High Court of Australia unanimously found that providing music on-hold services to mobile phone users infringed the broadcasting right, while a bare majority found that providing those services to users of fixed telephone networks infringed the cable diffusion right of copyright owners in that music. Dawson and Gaudron JJ held that Telstra infringed the cable diffusion right regardless of whether Telstra provided or selected the music played on-hold.[25] To add to the confusion, each of the three Australian courts that heard this case interpreted the cable diffusion right in a different manner.
The communication right is framed in a technology neutral manner to overcome the problems associated with these technology specific rights. It also covers the making available of copyright material using digital technologies, whereby users can access that material interactively on-demand.[26] The proposed amendment also ensures that telecommunications carriers and ISPs cannot be classified as operators of a diffusion service, avoiding litigation such as Telstra v APRA and APRA v Ozemail.[27]
The proposed communication right retains the existing distinction between tangible and intangible forms of copyright material, as it does not apply to physical distribution of copyright material in a tangible form.[28] The Australian Copyright Law Review Committee (“CLRC”) criticised this distinction between tangible and intangible forms because:
(a) some exclusive rights[29] arguably apply only to physical copies of a work, when they should apply to both tangible and intangible forms of the work; and
(b) certain material embodied in an intangible form remains unprotected, although it deserves equal protection to tangible forms of that material.[30]
This distinction between tangible and intangible forms can potentially cause as many uncertainties in the digital environment as the current technology specific rights, jeopardising achievement of the Bill’s objectives. However, although the communication right is not a complete solution to the problem of applying copyright law in the digital era, it is an important step towards achieving the central aim of the reforms.
To ensure that owners of copyright in sound and television broadcasts do not obtain a new right to broadcast in addition to their right to rebroadcast,[31] the communication right is qualified by excluding the right to broadcast from the communication right for sound and television broadcasts.[32]
The definition of “broadcast” is extended by the Bill to accord with the definition of “broadcasting service” in s6(1) of the Broadcasting Services Act 1992 (Cth),[33] which includes cable transmissions such as “pay TV”. It also covers new technologies such as “web TV” and “Internet broadcasting”.[34] Section 26 of the Act, dealing with the cable diffusion right, is deleted.[35]
Owners of copyright in free-to-air broadcasts do not have a cable diffusion right. To ensure that they are compensated for retransmission[36] of those broadcasts by pay TV operators, the Bill repeals s199(4) of the Act[37] and gives pay TV operators a statutory licence to retransmit free-to-air broadcasts, subject to payment of equitable remuneration to the underlying rightholders in that broadcast.[38] “Free-to-air broadcast” is defined as a broadcast delivered by a national broadcasting service, commercial broadcasting service or community broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth).[39] Under this statutory licensing scheme, collecting societies approved by the Attorney-General will collect and distribute retransmission payments to broadcast rightholders. Disputes between retransmitters and collecting societies as to the amount of such payments will be determined by the Copyright Tribunal.
The Bill’s proposed communication right accords with the communication right adopted in Article 8 of WCT and Articles 10 and 14 of WPPT (dubbed “the umbrella solution”).[40] Without denigrating from the existing communication right in the Berne Convention, Article 8 of WCT extends the communication right:
(a) to include cable transmissions by granting an exclusive right of communication to the public “by wire or wireless means”; and
(b) by including in the communication right the right of making available to the public of works in an interactive, on-demand manner.
WPPT instead provides for an exclusive right of “making available to the public” which is distinct from the equitable rights of remuneration in relation to broadcasting and communication to the public in the Rome Convention.[41] Like the Bill, the WIPO Treaties do not define the meaning of “to the public”.
The Bill goes beyond the WIPO Treaties by extending the communication right to all copyright material except published editions, not just to copyright material covered by the Berne and Rome Conventions.
The United States (US) Digital Millennium Copyright Act (“DMCA”) became law on 28 October 1998. It consists of five pieces of legislation amending the US Copyright Act (“17 USC”). Title I of the DMCA implements the WIPO Treaties. While the DMCA does not implement the communication right under the WIPO Treaties, this right is arguably covered by the existing rights of distribution and of public performance and display.[42] Section 101 of 17 USC provides that to publicly perform or display a work means to transmit or otherwise communicate a performance or display of the work ... to the public by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
This provision arguably covers digital transmissions, including interactive on-demand transmissions.[43] There is no equivalent provision under current Australian copyright law.
A proposed Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (“Directive”) was issued by the European Commission on 10 December 1997. If adopted by the European Union (“EU”), it will require member states to implement the WIPO Treaties through amendment of their national copyright laws.
Article 3 of the Directive is similar to Article 8 of WCT and Articles 10 and 14 of WPPT. However, Article 3(2) of the Directive differs from the Bill in that it only provides for a right of making available to the public (rather than a communication right) in relation to phonograms and fixations of performances (covered by WPPT), and fixations of films and broadcasts (going beyond WPPT).[44] This difference arises because continental countries only afford neighbouring rights to this material, being equitable rights of remuneration rather than exclusive rights.
To “replicate the balance struck between the rights of owners and the rights of users that has applied in the print environment”,[45] the Bill includes a number of exceptions to the communication right. These exceptions are as follows:
The existing fair dealing exceptions in the Act[46] will apply to the communication right. Only minor amendments are proposed to these provisions to replace references to “broadcasting” and “diffusion” with references to “communication”.[47]
The Bill extends the definition of what is a “reasonable portion”[48] of a work in relation to a fair dealing for the purposes of research or study[49] to cover works in an electronic form. Where a person makes a reproduction of an electronic form of a published dramatic or literary work,[50] a reproduction of a “reasonable portion” of the work will be reproduction of up to 10% of the number of words in the work, or the whole or a part of a single chapter of the work, even if it contains more than 10% of the number of words in the work.[51] If there is also a published edition of the work available separately in electronic form, then a reproduction of that work may fall within the fair dealing provisions of the Act if either the hard copy definition or electronic form definition of a “reasonable portion” are complied with.[52] Under the Bill, a subsequent reproduction of another part of the same work will not be a “reasonable portion”, regardless of whether or not that subsequent reproduction falls within either definition of a “reasonable portion”.[53] This proposed provision will prevent persons from circumventing the operation of the Act by dividing the reproduction of more than a reasonable portion of a work into several separate reproductions, each of which by itself is a reasonable portion of a work.
The Bill also furthers the central aim of the reforms by extending the provisions permitting libraries[54] and archives to make and supply copies of copyright material to individuals for the purpose of research or study[55] and to other libraries for certain purposes,[56] so that libraries and archives may provide access to copyright material by electronic reproduction and communications.
The provisions relating to the supply of hard copy copyright material by libraries and archives are extended to copyright material in electronic form.[57] Accordingly, the word “copy” in these provisions has been replaced by “reproduction”,[58] and “supply” has been defined to include supply by way of a communication.[59] The Commentary states that such communication must be limited to the particular user, library or archive for the exemption to apply.[60] The definition of “reproduction” in the Act[61] has also been extended to cover conversion of works into or from a digital or other electronic machine-readable form.[62]
To be eligible for the exemptions under section 49 of the Act when supplying an electronic reproduction of an article or work, the library or archive supplying that reproduction must:
(a) before communicating the reproduction, notify the recipient that the reproduction was made pursuant to section 49 of the Act and is subject to copyright; and
(b) as soon as practicable after communicating the electronic reproduction to the recipient, destroy the reproduction held by the library or archive.[63]
To be eligible for the exemption under section 50 of the Act when supplying an electronic reproduction of a work, an authorised officer of the library or archive supplying that reproduction must, as soon as practicable after the request for the reproduction is made, make a declaration:
(a) setting out particulars of the request; and
(b) stating that, after a reasonable investigation, the officer is satisfied that the work cannot be obtained in an electronic form within a reasonable time at an ordinary commercial price.[64]
Unfortunately, neither the Bill or its Explanatory Memorandum provides any guidelines regarding what steps libraries and archives must take in order to have conducted a “reasonable investigation”.
The Bill also provides that libraries and archives are covered by these exemptions where they acquire material in digital form and make it available to users online within the library or archives premises so that users cannot make an electronic reproduction of or communicate that material.[65]
Section 39A of the Act provides that libraries and archives will not be taken to have authorised the making of infringing copies of copyright material made by reprographic reproduction on a machine situated on or outside the library or archives premises, provided that a prescribed notice warning users about the Act’s prohibition on unauthorised copying of copyright material is affixed to or close to the machine so as to be readily visible to users. To further the central aim of the reforms, the Bill deletes the technology specific reference to reprographic copying, and extends the definition of “machine” to include a computer.[66]
The Act permits libraries and archives to copy certain unpublished copyright material for certain purposes after a specified period of time.[67] To extend this provision to electronic reproductions and communications, the Bill replaces references to “making of a copy” with “making or communication of a reproduction”.[68] In addition, the definition of “manuscript” in section 10 of the Act is replaced to emphasise that it refers to a document embodying a literary, dramatic or musical work as initially prepared by the author, whether it be in hard copy, electronic or other form.[69] The Bill also removes the prohibition[70] on copying an unpublished work until 75 years after it was made.[71]
The Act permits the making of one working copy of a work open to public inspection in the Australian Archives,[72] and for libraries and archives to copy works to preserve or replace damaged, lost or stolen works.[73] Similar provisions apply to sound recordings and films.[74]
In furthering the central aim of the reforms, the Bill extends these provisions to electronic means of reproducing copyright material[75] and to include communication of copyright material by libraries and archives for the purposes specified in those provisions. To make these provisions technology neutral, references to a “copy” or “copying” are replaced by “reproduction” or “reproducing”. However, in ss110A and 110B of the Act, the concept of copying is retained and extended to the conversion of sound recordings and films into or from a digital or other electronic form.[76] This ensures that a new right of reproduction is not created in sound recordings and films.
Educational and certain other institutions have a statutory licence under the Act to make multiple copies of works in certain circumstances without the copyright owner’s permission, provided that they remunerate the copyright owner in accordance with the licence.[77] To extend this statutory licence to electronic forms of works, the Bill amends the definition of “licensed copy” of a work to include an electronic copy.[78]
To enable educational institutions to exercise the proposed communication right under the statutory licence, Item 151 of the Bill introduces a new division 2A into Part VB of the Act. This division enables educational institutions to communicate and reproduce in electronic form[79] insubstantial portions of works and published articles covered by the statutory licence for educational purposes on the institution’s premises.[80] The definition of “licensed copy” is also amended to include a reproduction under Part VB.[81]
The Bill retains a definition of “broadcasting” to ensure that the existing exceptions and statutory licences relating to broadcasting[82] are not extended to the much broader communication right.[83] Section 69 of the Act, relating to a cable diffusion right for television programs, is repealed.[84]
Currently, it is unclear whether temporary or incidental reproductions made in the course of making available and transmitting copyright material electronically infringe the copyright owner’s right of reproduction. For example, browsing on the Internet involves temporary copies of copyright material being stored in the memory of the user’s computer. The definition of “material form” in the Act[85] includes any form of storage, whether visible or not, from which a work or adaptation can be reproduced. As this definition does not distinguish between transient and permanent forms of storage, these temporary copies could be regarded as reproductions in a material form.[86]
To address this issue, the Bill provides that temporary reproductions of copyright material made as part of the technical process of making a communication or looking at material on a computer screen (“browsing”) do not infringe copyright in that material.[87] This exemption applies regardless of whether the making available or transmission of that material was authorised by the copyright owner. As it is unlikely that persons browsing copyright material will know whether the communication of that material is authorised, this is a logical exemption.
However, this exemption is arguably open to abuse through deliberate copying, for example, by accessing material through the cache directory.[88] Activities which may lead to difficulties in interpreting what is an exempt temporary reproduction include:
(a) the fact that many browsers can be set so that the cache is not deleted;
(b) where cached material is copied during the backing up of a hard drive;[89] and
(c) the practice of proxy caching by Internet service providers (“ISPs”).[90]
The WIPO Treaties only deal with limitations and exceptions to the rights of copyright owners generally. Article 10(1) of WCT and Article 16(2) of WPPT provide that parties to those treaties may only provide in national legislation for limitations and exceptions to the rights granted to copyright owners which comply with the three-step test under the Berne Convention. Under this test, limitations and exceptions must:
(a) only apply in special cases;
(b) not conflict with normal exploitation of copyright material; and
(c) not unreasonably prejudice the legitimate interests of the copyright owner.[91]
Article 10(2) of WCT reaffirms the application of the three-step test when parties to that treaty apply the Berne Convention. The WIPO Treaties extend application of the three-step test beyond the reproduction right under the Berne Convention, applying it to all rights.[92] As Article 10 of WCT and Article 16 of WPPT refer to “rights” rather than “exclusive rights”, the WIPO Treaties may extend the three-step test to compulsory licences as well as exclusive rights.[93]
Arguably, the exceptions to the rights of copyright owners under the Bill conform with the three-step test and therefore accord with the WIPO Treaties. The Bill mainly extends existing exceptions to the digital environment. However, the exception relating to temporary reproductions of copyright material is an area which created much controversy at the Conference, and which is not clarified by the WIPO Treaties. Proposed Article 7 of WCT provided that temporary reproductions of copyright material made during activities such as browsing the Internet were reproductions falling within the reproduction right of copyright owners.[94] This proposal was rejected by the Conference.[95]
However, an Agreed Statement relating to Article 1(4) of WCT, which requires contracting parties to comply with the Berne Convention, leaves doubts regarding the status of temporary reproductions under WCT. It provides that “the reproduction right ... and the exceptions permitted thereunder, fully apply in the digital environment”, and that “the storage of protected works in digital form in an electronic medium” constitutes a reproduction under Article 9 of the Berne Convention. The Agreed Statement suggests that temporary reproductions made during electronic communication or browsing infringe the copyright owner’s right of reproduction.[96] This remains unclear because:
(a) it is arguable that temporary copies produced as part of the transmission process are not “stored”; and
(b) the Conference did not unanimously adopt the Agreed Statement, leaving its legal status uncertain.[97]
Regardless of the position under the WIPO Treaties, it is arguable that the Bill’s exemption for temporary reproductions accords with the three-step test.
Unlike the Bill, the DMCA does not provide any general exemption for temporary reproductions made during browsing or caching. It only provides a limited exception for system caching applicable to online service providers.[98] As with the Bill, the DMCA extends the rights of libraries and archives to use digital technologies when engaged in specified preservation activities. It also amends 17 USC §108 to allow libraries and archives to make three copies of copyright material for preservation and security or research use by another library or archives. However, digital copies must not be distributed in that format or made available outside the library premises.[99] A digital or other copy of a work may also be produced if the original format becomes obsolete.[100]
Article 2 of the Directive provides that temporary reproductions must be included by member states in the exclusive rights of copyright owners. However, Article 5 imposes a mandatory exception from Article 2 equivalent to that contained in the Bill for temporary reproductions that are integral to a technological process for the sole purpose of enabling use of copyright material, provided that the temporary reproduction has no independent economic significance. Rightholder organisations have criticised this exception for being too broad and vague.[101]
Article 5(2)(c) of the Directive provides an optional exception for certain acts of reproduction by non-profit “establishments accessible to the public”. Unlike the Bill, this exception does not apply to communication of works to the public. Accordingly, such establishments must obtain the copyright owner’s permission to provide online access to works.[102] The Explanatory Memorandum suggests that to do otherwise would not comply with the three-step test by competing with ordinary commercial online delivery of copyright material. However, it is arguable that as libraries and archives acquire material for the purpose of enabling users to access it, making that material available online is no different to providing access to hard copy materials. As long as online materials cannot be reproduced by users, the making available of that material by libraries and archives does not unreasonably prejudice rightholders. On this reasoning, the Bill arguably complies with the three-step test.
The Bill introduces two new technological enforcement measures to combat the relatively cheap and easy transmission of multiple infringing copies of copyright material online.
The Bill introduces criminal and civil causes of action for making and commercially dealing in devices and providing services for the circumvention of technological copyright protection measures (“anti-circumvention provisions”). Criminal penalties are introduced[103] under the proposed sections 132(5B) and (5C) of the Act for:
(a) making, commercially dealing with,[104] distributing for a purpose that will prejudicially affect the copyright owner, or making available online to an extent that will prejudicially affect the copyright owner, circumvention devices; or
(b) providing circumvention services or facilitating circumvention of an effective technological protection measure,
where a person knows or is reckless as to whether the circumvention devices or services would be used to circumvent or facilitate circumvention of an effective technological protection measure.
“Circumvention device” and “circumvention service” mean a device or service which has no or only a limited commercially significant purpose or use apart from the circumvention of technological protection measures.[105] These definitions ensure that it is not illegal to make or deal in electronic equipment[106] simply because that equipment can potentially be used to circumvent technological protection measures.[107]
“Effective technological protection measure” is defined as a device or product, or a component incorporated into a process, designed to prevent or inhibit copyright infringement, which, in the ordinary course of its operation, protects access to copyright material by an access code or process such as decryption, unscrambling or other authorised transformation of the copyright material.[108]
The anti-circumvention measures penalise activities preparatory to use of circumvention devices rather than their use, as the Federal government believes that this is a more effective way of preventing circumvention of technological protection measures.[109] The rationale behind this belief is that the real danger to copyright owners is not from single acts of circumvention, but from the manufacture and dealing on a commercial scale in circumvention devices.[110]
A danger with this approach is that, by focusing on activities preparatory to circumvention, activities which are lawfully carried out and do not infringe copyright may be caught.[111] The Exposure Draft of the Bill attempted to avoid this result by requiring knowledge or recklessness as to whether circumvention devices or services will be used for the purposes of copyright infringement. For example, under the Exposure Draft of the Bill, it would not be an offence to sell a circumvention device to a library for use under the library exceptions.[112] While this requirement has been removed from the Bill, it provides that the proposed section 116A does not apply:
(a) in relation to the supply[113] of a circumvention device or circumvention service where prior to or at the time of supply, the recipient of the device or service signs a declaration that the device or service will only be used for an identified permitted purpose;[114] and
(b) in relation to the making or importation of a circumvention device where it will only be used for a permitted purpose or to supply the device or a circumvention service for a permitted purpose.[115]
These exclusions produce a similar result to limiting the application of the offence provisions to circumstances where a person knew or was reckless as to whether the circumvention device or circumvention service would be used for the purpose of copyright infringement. By ensuring that the anti-circumvention provisions only apply where circumvention of an effective technological protection measure may lead to an infringement of copyright, these exclusions help to maintain the balance between the rights of copyright owners and copyright users.
The balance between the rights of copyright owners and copyright users is also maintained in relation to the acts of distributing and making available online circumvention devices. Distribution of circumvention devices will only be an offence where it is for a purpose that will prejudicially affect the copyright owner, while making circumvention devices available online will only be an offence to the extent that will prejudicially affect the copyright owner. If the copyright owner will not be prejudicially affected,[116] then these acts are not prohibited by these provisions.
The Bill introduces a new civil remedy for copyright owners against persons who:
(a) make or commercially deal with circumvention devices, distribute circumvention devices for a purpose that will prejudicially affect the copyright owner, or make available circumvention devices online to an extent that will prejudicially affect the copyright owner; or
(b) provide circumvention services or facilitate circumvention of an effective technological protection measure,
where that person knew or ought reasonably to have known that the circumvention devices or services would be used to circumvent or facilitate circumvention of an effective technological protection measure.[117] Unlike the criminal defendant, the civil defendant is presumed to have the relevant state of mind unless the defendant proves otherwise. Remedies available to the successful plaintiff in an action under the proposed section 116A of the Act are the same as those available in copyright infringement cases, and include an injunction plus damages or an account of profits, and where appropriate, additional damages.[118] However, unlike under the proposed section 116A(3) of the Exposure Draft, the Bill does not give the plaintiff a conversion-style remedy against the circumvention devices.
Neither the civil or criminal causes of action are available against Federal, State or Territory governments or authorities that lawfully circumvent technological protection measures for law enforcement or national security purposes.[119]
The Bill also introduces almost identical provisions to those relating to circumvention devices in relation to making and commercially dealing with broadcast decoding devices, distributing broadcast decoding devices for a purpose that will prejudicially affect the copyright owner, or making available broadcast decoding devices online to an extent that will prejudicially affect the copyright owner where:
(a) in relation to the civil cause of action, the person knew or ought reasonably have known that the devices would be used to gain access to an encoded broadcast without the authorisation of a subscription broadcaster;[120] and
(b) in relation to the criminal cause of action, the person knew or was reckless as to whether the devices would be used to gain access to an encoded broadcast without the authorisation of a subscription broadcaster.[121]
A “broadcast decoding device” is a device designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of a subscription broadcaster. An “encoded broadcast” is a broadcast delivered only to authorised subscribers who pay a fee to the subscription broadcaster for that broadcast, and to which intelligible access is restricted by a technical measure or arrangement. A “subscription broadcaster” is a person who makes an encoded broadcast.[122]
When a person is charged with an offence under the proposed section 135AS of the Act, a court may order that the broadcast decoding device be destroyed or otherwise dealt with, regardless of whether or not the person is ultimately convicted of an offence.[123]
The Bill imposes criminal penalties[124] for interference with electronic rights management information (“ERMI”) by making it an offence to:
(a) alter or remove ERMI attached to copyright material without the copyright owner’s authorisation; or
(b) distribute with the intention of trading, communicate or import copyright material knowing that ERMI has been removed or altered,
where the person knows or is reckless as to whether the removal or alteration will induce, enable, facilitate or conceal copyright infringement.[125]
ERMI is information attached to or embodied in copyright material which identifies the copyright material, the author or copyright owner, and terms and conditions of use of that material or the existence of those terms and conditions.[126]
There are also corresponding civil causes of action under the proposed sections 116B and 116C of the Act. As with the action in relation to non-permitted use of circumvention devices and services, the onus of proof in the civil causes of action relating to tampering with ERMI rests with the defendant,[127] and the same remedies are available to a successful plaintiff.[128]
By not impinging on the exceptions to copyright owners’ rights, these enforcement measures further the central aim of the reforms by balancing the rights of copyright owners and users.[129] Although these measures have been criticised for being difficult to police,[130] they are an important step towards balancing the rights of copyright owners and users in the digital environment.
The Bill’s technological enforcement measures reflect similar provisions in the WIPO Treaties.[131] Article 11 of WCT and Article 18 of WPPT require contracting parties to “provide adequate legal protection and effective legal remedies against the [unauthorised] circumvention of effective technological measures used by rightholders in exercising their rights”. The Bill arguably complies with these broadly worded requirements.
The Bill’s ERMI provisions implement Article 12 of WCT and Article 19 of WPPT. While the WIPO Treaties require imposition of civil penalties for tampering with ERMI, the Bill only introduces criminal sanctions. However, the Federal government believes that these criminal sanctions adequately comply with the WIPO Treaties, as they include the lesser mental element of recklessness for liability rather than the stricter knowledge requirement of the WIPO Treaties.[132]
Like the Bill, the DMCA introduces enforcement measures dealing with circumvention of technological protection measures and interference with ERMI. The DMCA introduces both criminal and civil causes of action for the circumvention of technological protection measures without the copyright owner’s authorisation.[133] Unlike the Bill, the DMCA provisions:
(a) target both the act of circumvention and the manufacture and distribution of circumvention devices;[134]
(b) apply to devices used to circumvent technological protection measures which control access to copyright material as well as to measures which protect the rights of copyright owners;[135] and
(c) apply even when the actions referred to do not result in copyright infringement.[136]
Despite the exceptions to these provisions, the balance is clearly in favour of rightholders. Unlike the Bill, which applies the exceptions to copyright infringement to the technological enforcement measure provisions, the DMCA provides specific exceptions to these “black box” provisions for:[137]
(a) persons adversely affected by these prohibitions in their ability to make non-infringing uses of copyright material, determined in accordance with rules formulated by the Library of Congress;[138]
(b) browsing rights for non-profit libraries, archives and educational institutions to make a good faith determination whether to acquire a copy of a work;[139]
(c) government activities, including law enforcement and intelligence;[140]
(d) reverse engineering to ensure interoperability of computer programs;[141]
(e) good faith encryption research;[142]
(f) detection and disablement of information collection and dissemination technology (eg cookie programs);[143] and
(g) good faith efforts to investigate and correct security flaws.[144]
The DMCA introduces criminal sanctions for tampering with ERMI[145] similar to those in the Bill, and for knowingly providing, distributing or importing false ERMI with intent to induce, enable, facilitate or conceal copyright infringement.[146] Additionally, the DMCA introduces civil remedies for tampering with ERMI.[147] There are exceptions for activities of certain government agencies and certain transmissions.[148]
The Commentary states that the Bill’s anti-circumvention provisions are based on Article 6 of the Directive.[149] The Bill closely follows the wording of and takes the same approach as the Directive, which targets acts preparatory to circumvention rather than circumvention itself.[150] Article 7 of the Directive prohibits tampering with ERMI in a similar manner to the Bill.
The Discussion Paper preceding the Bill did not propose special provisions to protect Internet service providers (“ISPs”) from liability for copyright infringement, as it was not intended that ISPs would be liable for direct copyright infringement relating to the transmission of material which ISPs did not select.[151] However, in response to Telstra v APRA and submissions regarding the Discussion Paper, the Bill attempts to clarify the liability of communications carriers (“carriers”) and ISPs for copyright infringements facilitated by use of their facilities or services.
Under the Bill, carriers and ISPs will not be directly liable for communicating copyright material to the public where they did not determine the content of that communication,[152] which partially overrides Telstra v APRA.[153] The Bill also limits the liability of carriers and ISPs for authorising copyright infringement by:
(a) codifying the common law regarding authorisation; and
(b) providing that carriers and ISPs do not authorise copyright infringement simply by providing facilities used to infringe copyright.[154]
Under the Bill, the following factors[155] must be considered when determining whether a person has authorised copyright infringement:
(a) power to prevent an infringing act;
(b) the relationship between the person and the infringer; and
(c) whether the person took reasonable steps to prevent or avoid the infringing act, including whether the person complied with any relevant industry codes of practice.[156]
This contrasts with the Discussion Paper, which stated that any exceptions for ISPs from authorisation liability would “freeze” the law in this area and be rapidly superseded by technological developments.[157]
These provisions are purposely undetailed and broad, as the Federal government believes that more detailed legislation would be unnecessarily complex and quickly superseded by technological developments.[158] However, the Federal government has invited feedback from copyright interest groups on these provisions.
Under these provisions, ISPs have greater certainty regarding their rights than under the Act, which promotes the central aim of the reforms in balancing the rights of copyright owners and users. However, two writers have criticised authorisation liability for being a “blunt and old-fashioned” way of dealing with this issue.[159] Instead, these writers suggest that, for example, liability of ISPs be limited to a qualified obligation to remove material on notice from copyright owners.[160] This suggestion would increase certainty for ISPs, who are under increasing pressure to act as guardians of Internet content.[161]
The WIPO Treaties do not expressly deal with liability of carriers and ISPs for copyright infringement. However, an Agreed Statement concerning Article 8 of WCT states that “mere provision of physical facilities for enabling or making a communication” does not constitute an exercise of the right of communication to the public.[162] Items 33 and 83 of the Bill are consistent with this statement. The WIPO Treaties do not deal with the position of ISPs, who provide more than mere physical infrastructure to Internet users.
Title II of the DMCA deals with liability of online service providers (“OSPs”) for copyright infringement in a broader and more complex manner than under the Bill. The DMCA provisions extend beyond ISPs to providers or operators of facilities for online services or network access,[163] which may include entities that do not conduct a business of providing online services, including firms that provide an employee intranet.[164]
The DMCA provides four “safe harbours” for OSPs. These safe harbours are as follows:
(a) Conduit functions[165]
This safe harbour applies where:
• an OSP transmits, routes or provides connections for material contained in a transmission through a system or network operated by the OSP (“conduit functions”), and the content of that material is not modified by the OSP;
• that transmission was initiated by a third party;
• the conduit functions occurred automatically, with no selection of either the material or its recipients by the OSP; and
• the OSP only maintains a copy of the material for as long as is necessary to carry out the conduit functions.
This safe harbour is similar to the provisions of the Bill which provide that an ISP does not authorise an infringement of copyright merely by providing facilities used to authorise copyright infringement.[166]
(b) System caching[167]
For an OSP to qualify for the safe harbour relating to intermediate and temporary storage of material on the OSP’s system or network (“system caching”):
• the stored material must have been made available online by a third party;
• the material must be stored automatically without selection or modification by the OSP for the purpose of making the material available to users;
• the stored material is updated by the OSP if required by the provider of that material;
• any limitations on access to that material are maintained by the OSP; and
• the OSP does not interfere with the ability of the technology associated with the material to supply information to the provider of that material, provided that technology (i) does not significantly interfere with the OSP’s system or network; (ii) complies with accepted industry standard communications protocols; and (iii) does not extract information from the OSP.
These stringent conditions which OSPs must satisfy in order to take advantage of the DMCA’s system caching safe harbour contrast sharply with the “caching” provisions of the Bill, which do not impose any conditions which ISPs or Internet users must satisfy to qualify for the exemption from liability contained in those provisions.[168]
(c) User storage[169]
To qualify for this safe harbour, where an OSP stores material on its system or network at a user’s request, the OSP must:
• not know that and not be aware of any facts or circumstances which indicate that the material or an activity involving the material infringes a third party’s copyright;
• not receive a direct financial benefit from storing the material; and
• expeditiously remove or disable access to the material in accordance with the take down procedure outlined in section 512(c) on learning, by way of a “take down” notice, that the material infringes a third party’s copyright.
There is no equivalent of this provision in the Bill.
(d) Information location tools[170]
Where an OSP links or refers a user to a website containing infringing material or an infringing activity, the OSP will be eligible for the protection of this safe harbour if the OSP:
• did not know and was not aware of any facts or circumstances which indicated that the material or an activity involving the material infringes a third party’s copyright;
• does not receive a direct financial benefit directly attributable to the infringing activity; and
• expeditiously removes or disables access to the material on learning, by way of a “take down” notice, that the material infringes a third party’s copyright.
There is no equivalent of this provision in the Bill.
To qualify for protection under these safe harbours, OSPs must:
(a) comply with the various conditions relating to each safe harbour;
(b) adopt and implement a termination policy for users who repeatedly infringe copyright;[171]
(c) accommodate and not interfere with standard technological measures used by copyright owners to identify and protect copyright material;[172] and
(d) to take advantage of the storage and information location tool safe harbours, comply with the DMCA’s “notice and takedown” provisions relating to infringing material.[173]
OSPs do not have to monitor their service to qualify for the safe harbours.[174] Those OSPs who qualify for a safe harbour are not liable for monetary relief, and are only subject to limited injunctive relief for copyright infringement.
Unlike the Bill, the Directive does not deal with ISP liability. However, the European Commission intends to issue a proposed directive regarding OSP liability for online copyright infringement and other matters based on the German Information and Communication Services Act.[175]
The central aim of the “Digital Agenda” reforms is to amend copyright laws to take account of conditions in the digital environment, while maintaining the existing balance of rights between copyright owners and users. While the Bill takes a “bandaid” approach to reform, it is generally successful in achieving its central aim. The Bill also implements the requirements of the WIPO Treaties, so that Australian copyright law accords as much as possible with the laws of its international trading partners, and leaving it open for Australia to sign the WIPO Treaties. The “Digital Agenda” reforms will play an important role in bringing Australian copyright law into the digital era.
[*] Gaye Middleton is a solicitor in the intellectual property and information technology group at Mallesons Stephen Jaques, Brisbane. She holds a Bachelor of Laws with first class honours and a Bachelor of Science specialising in pharmacology and biochemistry from the University of Queensland. Gaye also holds a Master of Laws from the University of Queensland, focusing on intellectual property law. Her legal experience includes preparation of a wide range of technology agreements and contracting under the government information technology conditions.
[1] Barlow, J “The Economy of Ideas – A Framework for Rethinking Patents and Copyright in the Digital Age (Everything you know about intellectual property is wrong)” Wired (March 1994). Available at http://www.travel-net.com/~billr/economy.html
[2] Kerever, A “Problems Involved in the Adaptation of the Right of Reproduction and the Right of Communication to the Public in the Digital Multimedia Environment” (1997) 31 Copyright Bulletin 4 at 5.
[3] This treaty supplements the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”).
[4] This is a stand-alone treaty which deals with subject matter covered by the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (“Rome Convention”).
[5] Preamble to WCT and WPPT.
[6] Thirty States must ratify or accede to the WIPO Treaties before they come into effect (Article 20 WCT and Article 29 WPPT). As at 17 September 1999, only nine States had ratified WCT and only seven States had ratified WPPT. See the WIPO website at http://www.wipo.org/eng/ratific/s-copy.htm and http://www.wipo.org/eng/ratific/s-perf.htm. One of the nine points of the WIPO Digital Agenda, a set of guidelines and goals presented at the International Conference on Electronic Commerce and Intellectual Property on 16 September 1999, is to have both treaties enter into force prior to December 2001.
[7] This discussion paper was released by the Coalition government in July 1997.
[8] A the time of writing, the House of Representatives Standing Committee on Legal and Constitutional Affairs, appointed to inquire into and report on the Bill, was due to report to the Australian Attorney-General on 9 December 1999.
[9] Digital Agenda Copyright Amendments: proposed provisions implementing the Government’s decision on the Digital Agenda reforms – Exposure Draft and Commentary at 6.
[10] Id. at 7.
[11] Section 3 Bill. Hereafter, all references to item numbers are references to items in Schedule 1 of the Bill.
[12] The Exposure Draft of the Bill also
included a number of reforms in relation to copyright in computer software.
However, these
reforms were removed from the Bill, as legislators believed that
these much needed reforms would be delayed in Parliament if they
were connected
with some of the more controversial reforms in the Bill. The reforms relating
to copyright in computer software contained
in the Exposure Draft of the Bill
have now been passed into law as part of the 
Copyright Amendment (Computer
Programs) Act 1999 
(Cth), which came into force on 30 September 1999.
[13] See Items 35, 37, 81 and 82 Bill, which replace ss31(1)(a)(iv) and (v), 31(1)(b)(iii) and (iv), 85(1)(c) and 87(c).
[14] Exposure Draft and Commentary n 9 at 8.
[15] Item 6 Bill.
[16] Item 16 Bill.
[17] Exposure Draft and Commentary n 9 at 10-11.
[18] Discussion Paper – Copyright Reform and the Digital Agenda (Commonwealth of Australia, July 1997) at 32.
[19] Telstra v Australasian Performing Right Association [1997] HCA 41; (1997) 38 IPR 294 at 302.
[20] Peach, S and Garlick, M “Copyright and the Digital Agenda: An Analysis of the Proposed Changes” (April 1998). Available at http://www.gtlaw.com.au/pubs/copydigitalagenda.html
[21] ee the definition of “broadcast” in s10 Copyright Act 1968 (Cth).
[22] s26 Copyright Act 1968 (Cth).
[23] Davison, M “Australian Proposals for Copyright Reform: Some Unresolved Issues and Some Lessons from America” (1999) 1(1) Digital Technology Law Journal. Available at http://wwwlaw.murdoch.edu.au/dtlj/articles/vol1-1/Davison.html at 2.
[24] [1997] HCA 41; (1997) 38 IPR 294.
[25] Id. at 298.
[26] Exposure Draft and Commentary n 9 at 8.
[27] In this case, which settled before the hearing, APRA filed proceedings against Ozemail, an ISP, for infringement of APRA’s cable diffusion right in certain musical works transmitted over the Internet to Ozemail’s subscribers.
[28] Exposure Draft and Commentary n 9 at 9.
[29] For example, the right of publication.
[30] Report of the Copyright Law Review Committee on Simplification of the Copyright Act 1968 Part 2 – Categorisation of Subject Matter and Exclusive Rights, and Other Issues (February 1999) at 46-47. The CLRC illustrates this problem by comparing an unprotected extempore speech with a protected written speech.
[31] s87(c) Copyright Act 1968 (Cth).
[32] Exposure Draft and Commentary n 9 at 9-10; Item 83 Bill.
[33] Exposure Draft and Commentary n 9 at 10; Item 1 Bill. “Broadcasting” is extended from transmission to the public by wireless telegraphy to communication to the public of sound and television programs.
[34] Williams, Hon. D “Copyright Reform: into the Digital Future” – Transcript of Speech given at Copyright Futures Seminar, Brisbane on 12 February 1999. Available at http://law.gov.au/ministers/attorney-general/articles/Futures.html
[35] Item 29 Bill.
[36] “Retransmission” is defined in Item 15 of the Bill to mean a retransmission of a broadcast (a) where the content of the original broadcast is unaltered and (b) which occurs either simultaneously with the original broadcast or, if the retransmission is in an area in a different time zone to the original transmission, the retransmission is delayed no later than the equivalent local time.
[37] Item 214 Bill.
[38] Item 200 Bill.
[39] See proposed s135ZZI Copyright Act 1968 (Cth).
[40] International Bureau of WIPO “The WIPO Copyright Treaty (WCT) 1996” (1997) 55 Intellectual Property in Asia and the Pacific 23 at 27.
[41] Baulch, L “Singing in the Rain: Will the Digital Umbrella Work?” (1997). Available at http://138.77.20.51/Impart/baulch.htm
[42] Davison n 23 at 10. For digital transmission of sound recordings, see Digital Performance Right in Sound Recordings Act of 1995 (Pub. L. No. 104-39 (1995)).
[43] Ibid. See also Playboy Enterprises Inc v Frena, 839 F Supp 1552 (M.D. Fla. 1993), where the unauthorised posting of copyright photographs on a bulletin board was held to infringe the copyright owner’s display right.
[44] Explanatory Memorandum to the Proposal for a European Parliament and Council Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (“Explanatory Memorandum”) (10 December 1997) at 33-34.
[45] Exposure Draft and Commentary n 9 at 11.
[46] See ss40-43 and ss103A-103C Copyright Act 1968 (Cth).
[47] Items 43, 44, 88, 89 Bill.
[48] s10 Copyright Act 1968 (Cth).
[49] s40(3)(b) Copyright Act 1968 (Cth).
[50] Other than computer programs and electronic compilations – see Item 20 Bill.
[51] Item 20 Bill (proposed s10(2A) Copyright Act 1968 (Cth)). This provision can be contrasted with Item 16 of the Exposure Draft of the Bill, which appeared only to allow reproduction of an electronic versions of a work under the fair dealing provisions where (a) there was a published edition of that work in existence, and (b) a hard copy of the published edition of the work was not “conveniently available”. This provision was criticised because many electronic works are never produced as a published edition, therefore reproduction of those works could never fall within the definition of “reasonable portion”. Further, the meaning of when a hard copy of a work is not “conveniently available” was ambiguous.
[52] Item 20 Bill, inserting new s10(2B) Copyright Act 1968 (Cth).
[53] Item 20 Bill, inserting new s10(2C) Copyright Act 1968 (Cth).
[54] A new definition of library is inserted in s10 Copyright Act 1968 (Cth) by Item 11 of the Bill, replacing s49(9) Copyright Act 1968 (Cth). Section 49(9) currently provides that the term “library” does not include a library conducted for profit. However, in an era when Australian educational institutions are being forced to become more entrepreneurial, this definition would exclude many libraries servicing educational institutions from the protection of s49. As these libraries are among those for which the protection of s49 was primarily intended, the new definition of “library” in the Bill specifically includes libraries owned by educational institutions conducted for profit, while specifically excluding libraries owned and maintained for the purposes of businesses conducted for profit. In addition, s18 Copyright Act 1968 (Cth), which provides that a library is not taken to be established or conducted for profit simply because it is owned by a person carrying on business for profit, is repealed by Item 22 of the Bill.
[55] s49 Copyright Act 1968 (Cth).
[56] s50 Copyright Act 1968 (Cth).
[57] Exposure Draft and Commentary n 9 at 14.
[58] Items 48, 58-63 Bill.
[59] Items 57, 66 Bill.
[60] Exposure Draft and Commentary n 9 at 15.
[61] s21(1) Copyright Act 1968 (Cth).
[62] Item 23 Bill.
[63] Item 56 Bill, inserting a new s49(7A) Copyright Act 1968 (Cth).
[64] Item 64 Bill, inserting new s50(7B) Copyright Act 1968 (Cth).
[65] Items 54, 56 Bill. Item 54 of the Bill contrasts with Item 45 of the Exposure Draft, which did not oblige libraries and archives to prevent communication by users of material accessed online within a library or archives, potentially prejudicing the rights of copyright owners. Item 45 of the Exposure Draft also prejudiced copyright users by obliging libraries to ensure that users could not make hard copies of online material, which prevented users from making a hard copy of a reasonable portion of that material in accordance with the fair dealing provisions of the Act.
[66] Item 41 Bill. For background regarding s39A Copyright Act 1968 (Cth), see University of New South Wales v Moorhouse and Angus & Robertson (Publishers) Pty Ltd [1975] HCA 26; (1975) 133 CLR 1.
[67] s51 Copyright Act 1968 (Cth).
[68] Items 68 to 70 Bill.
[69] Item 13 Bill. Compare the current definition of “manuscript” which refers to “an original document embodying the work”, without linking such document to the author.
[70] s51 Copyright Act 1968 (Cth).
[71] This accords with recommendation 259 in Part 1 of CLRC Report on Simplification of the Copyright Act 1968 (1998).
[72] s51AA Copyright Act 1968 (Cth).
[73] s51A Copyright Act 1968 (Cth).
[74] ss110A, 110B Copyright Act 1968 (Cth).
[75] Items 71-77, 91-93 Bill.
[76] Item 25 Bill, inserting a new s21(6) into the Copyright Act.
[77] See Part VB Copyright Act 1968 (Cth).
[78] Item 126 Bill.
[79] See proposed s135ZMA Copyright Act 1968 (Cth).
[80] See proposed s135ZMB to s135ZME Copyright Act 1968 (Cth).
[81] Item 126 Bill.
[82] ss47, 47A, 65, 66, 67, 70 and Part VA Copyright Act 1968 (Cth).
[83] Exposure Draft and Commentary n 9 at 19.
[84] Item 80 Bill.
[85] s10 Copyright Act 1968 (Cth).
[86] The US case of Advanced Computer Services of Michigan Inc v MAI Systems Corp 845 F Supp 356, 363 (E.D. Va. 1994) decided that these temporary copies were infringing reproductions.
[87] Items 45, 111A Bill.
[88] Wood, C “New Plan for Copyright Online” (1998) 37 Computers & Law 9 at 10.
[89] Ibid.
[90] “Proxy caching” occurs where an ISP chooses to make a copy of a popular website on its server to increase the speed of connection to the information on that website for its users, and decrease the need for the ISP to connect to that website on the Internet. For a discussion of the copyright issues involved with proxy caching, see Garlick, M and Nicholls, R “Proxy Caching – The New Fair Dealing?” 5/10/99. Available at http://www.gtlaw.com.au/pubs/proxycaching.html. The authors suggest that Items 45 and 111A of the Bill do not apply to the practice of proxy caching, as reproductions made in the course of proxy caching are arguably not temporary reproductions. Further, the authors believe that it is doubtful that proxy caching, which occurs due to the positive act of an ISP, can be considered to be “part of the technical process of making a communication”.
[91] Article 9(2) Berne Convention.
[92] Baulch n 41 at 5.
[93] Ibid.
[94] Vinje, T “The New WIPO Copyright Treaty: A Happy Result in Geneva” [1997] 5 EIPR 230 at 231.
[95] Fox, S “Learning to Live with 1s and 0s: Response to the New WIPO Treaties” (1997). Available at http://138.77.20.51/Impart/fox.htm at 8.
[96] International Bureau of WIPO n 40 at 27.
[97] Davison n 23 at 6.
[98] DMCA §512(b). See discussion at section 6.3.1 below.
[99] Band, J “The Digital Millennium Copyright Act” (1998). Available at http://www.arl.org/info/frn/copy/band.html at 11.
[100] US Copyright Office “The Digital Millennium Copyright Act of 1998 – US Copyright Office Summary” (December 1998) at 15.
[101] Marsland, V “EU Attempts Greater Copyright Harmonization” IP Worldwide (May/June 1998) at 2. Available at http://www.ljx.com/copyright/0506_eucpharmony.html
[102] Explanatory Memorandum n 44 at 39.
[103] Items 100, 101 Bill.
[104] Commercial dealings are selling, hiring, offering or exposing for sale, exhibiting in public and importation.
[105] Items 4, 5 Bill.
[106] For example, computers and video recorders.
[107] Exposure Draft and Commentary n 9 at 23.
[108] Item 8 Bill.
[109] Exposure Draft and Commentary n 9 at 24.
[110] Exposure Draft and Commentary n 9 at 23; Explanatory Memorandum n 44 at 41.
[111] Vinje n 94 at 235.
[112] Ibid.
[113] “Supply” is defined in the proposed s132(5L) to mean to sell, let for hire, distribute or make available online a circumvention device.
[114] Proposed s132(5G) Copyright Act 1968 (Cth). “Permitted purpose” is defined in proposed s132(5J) Copyright Act 1968 (Cth) to mean an act within the scope of the copyright owner’s rights which is authorised by the copyright owner or a licensee of the copyright, or which is not an infringement under the Act.
[115] Proposed s132(5H) Copyright Act 1968 (Cth).
[116] For example, when the library exemptions apply.
[117] Item 98 Bill, introducing a new s116A Copyright Act 1968 (Cth).
[118] See proposed s116D Copyright Act 1968 (Cth).
[119] See proposed ss116A(2), 132(5F).
[120] Item 104 Bill, introducing proposed s135AN Copyright Act 1968 (Cth).
[121] See proposed s135AS Copyright Act 1968 (Cth).
[122] See proposed s135AL Copyright Act 1968 (Cth).
[123] See proposed s135AU Copyright Act 1968 (Cth).
[124] Item 101 Bill.
[125] Item 100 Bill, introducing proposed ss132(5D) and (5E).
[126] Item 9 Bill.
[127] See proposed ss116B(3) and 116C(3).
[128] See proposed s116D.
[129] Exposure Draft and Commentary n 9 at 27.
[130] Wood n 88 at 10.
[131] Exposure Draft and Commentary n 9 at 21, 22.
[132] Exposure Draft and Commentary n 9 at 29.
[133] 17 USC §§1201, 1203 (dubbed the “black box” provisions).
[134] 17 USC §§1201(a)(1)(A) and (2), 1201(b).
[135] 17 USC §1201(a)(2).
[136] Band, J “The Digital Millennium Copyright Act: A Balanced Result” [1999] EIPR 92 at 92-93.
[137] Lutzker, A “Primer on the Digital Millennium - What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community” (1998). Available at http://www.arl.org/info/frn.copy.primer.html at 9-10.
[138] 17 USC §1201(a)(1)(B), (C).
[139] 17 USC §1201(d).
[140] 17 USC §1201(e).
[141] 17 USC §1201(f). Australia
now has a “reverse-engineering” provision in s47D Copyright
Act 1968 (Cth), introduced by the Copyright Amendment (Computer Programs)
Act 1999 (Cth). This provision enables the owner or licensee of a
non-infringing copy of a computer program, or someone on their behalf,
to make a
reproduction or adaptation of that computer program solely for the purpose of
making another computer program or article
to interoperate with that computer
program, and the relevant interface information is not readily available from
another source at
the time that the reproduction or adaptation is made.
However, unlike the US DMCA, the Australian technological protection provisions
target the supply of circumvention devices, not their use. As it is not
unlawful under the Copyright Act 1968 (Cth) to use a circumvention
device, it is not necessary for Australia to enact a provision equivalent to 17
USC §1201(f).
[142] 17 USC §1201(g).
[143] 17 USC §1201(i).
[144] 17 USC §1201(j).
[145] 17 USC §1202(b).
[146] 17 USC §1202(a).
[147] 17 USC §1203.
[148] 17 USC §1202(d), (e).
[149] Exposure Draft and Commentary n 9 at 23-24.
[150] Explanatory Memorandum n 44 at 41.
[151] Discussion Paper n 18 at 36.
[152] Item 26 Bill, which repeals and replaces s22(6) Copyright Act 1968 (Cth).
[153] Exposure Draft and Commentary n 9 at 30.
[154] Items 42, 95 Bill, introducing new ss39B, 112E.
[155] These factors codify the principles in University of New South Wales v Moorhouse and Angus & Robertson (Publishers) Pty Ltd supra n 66.
[156] Items 39, 87 Bill. Relevant codes of practice include the Internet Industry Association Code of Practice (Draft version 5.0), available at http://www.iia.net.au/code.html
[157] Discussion Paper n 18 at 38.
[158] Exposure Draft and Commentary n 9 at 32.
[159] Macmillan, F and Blakeney, M “The Internet and Communications Carriers” Copyright Liability” [1998] EIPR 52 at 60.
[160] Ibid.
[161] This pressure has increased significantly since the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) was passed on 26 May 1999. The measures introduced by this Act will require ISPs to restrict or prevent access to Internet content designated as “prohibited content” under the Act.
[162] Discussion Paper n 18 at 36.
[163] 17 USC §512(k)(1)(B).
[164] Band n 99 at 5.
[165] 17 USC §512(a).
[166] See Items 42 and 95 of the Bill, and the discussion at section 6.1 above.
[167] 17 USC §512(b).
[168] See discussion at section 4.5 above.
[169] 17 USC §512(c).
[170] 17 USC §512(d).
[171] 17 USC §512(i)(1)(A).
[172] 17 USC §512(i)(1)(B).
[173] 17 USC §512(c).
[174] 17 USC §512(m).
[175] Marsland n 101 at 6.
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