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Total entries in this category: Published On: Aug 03, 2007 10:44 AM |
LACA and tpmvia the Australian Copyright Council, the
House of Representatives' Standing Committee on Legal and Constitutional Affairs
has published its report into its
Review of technological
protection measures exceptions
...
There are 37 recommendations in total.
There are far too many for me to deal with here! What will be particularly
interesting to watch is how well the Committee's attempt to support its
recommendations as consistent with The Free Trade Agreement withstand
scrutiny.
The recommendations are wide ranging indeed. For example, they include proposed exceptions for fair dealing purposes. See recommendation 28. In what looks like, but is not expressed to be, an interesting attempt to reinforce the High Court's approach to tpm, the Committee recommends that there must be a direct link between access control and copyright protection. (Recommendation 2). Striking yet another blow for parallel importers, LACA specifically recommends that "region coding TPMs on copyright material (used on DVDs for example) should not come within the liability scheme." See recommendation 4. Hmm. Where would implementation of that recommendation leave Sony's (not) TPM in the Stevens case. You may remember that the ACCC became involved as amicus curiae in that case to argue that the, er, measure implemented by Sony was not a tpm because it was really to stop parallel importing. Sackville J, however, did not find this argument compelling: 104 Mr White suggested that a device could not be designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright unless this was its sole purpose or objective. I do not think this is correct. There is nothing in the language of the definition indicating that the device must be designed exclusively to prevent or inhibit the infringement of copyright. Nor is there anything in the extrinsic materials to which I have referred that would suggest that the definition should be construed this way. The fact that a device can be said to be designed to achieve two or more objectives, only one of which is to prevent or inhibit the infringement of copyright, does not seem to me, of itself, to take the device outside the definition of "technological protection measure". There may be a question as to whether a device that is designed primarily to achieve a particular non-copyright purpose by the specified means is within the definition simply because it can be said incidentally to prevent or inhibit the infringement of copyright. I do not think, however, it necessary to address that question in the present case. This may be addressed by recommendation 3 which enjoins the Government to ensure that any protected access control measures should be related to the protection of copyright, rather than the restriction of competition in markets for non-copyright goods and services. But, Sony's games are copyright goods and services and there may be a real question whether it, or the producers of DVDs or recorded music have sufficient market power to be restricting competition. See Universal Music v ACCC [2003] FCAFC 193. Finally, in case they have missed any thing, the Committee sensibly recommends adoption of a US style ad hoc review every 4 years. This they consider should be carried out by the Attorney General's Department and implemented, if any exceptions are forthcoming, by the Attorney General instead of the Copyright Tribunal as proposed in some submissions. Copyright Council here; LACA press release here and report here. (The Report includes the text of The Free Trade Agreement.) Links to the contrasting US approach here. Posted: Thursday - March 02, 2006 at 05:08 PM | |