As a result of a Free Trade Agreement between Australia and the U.S. that came into force in 2005, Australia is required to rewrite its current, relatively flexible, technological protection measure law by 1 January 2007, to make it more like the DMCA. A serious policy debate on how to frame a DRM law that does the least damage to consumers, scientific research, technological innovation and competition has been underway in Australia for several years. In February, a landmark Australian parliamentary committee report with consumer and technology-friendly recommendations for Australia’s rewrite process also pointed the way for other countries seeking a sensible response to the U.S. effort to export its unbalanced DMCA regime through recent free trade agreements. But many of the insights from that policy debate could be lost if the 219 page Copyright Amendment Bill, currently being fast-tracked through Australia’s Parliament, is passed. Apart from rewriting Australia’s current TPM law, the Bill would also make a number of sweeping changes to Australian copyright law, including introducing new criminal penalties.
After the jump we explain what’s in the Bill and what concerned Australians can do.
The Bill makes Australia’s TPM law more like the DMCA. After the AUSFTA it was inevitable that there would be some movement in that direction. But what’s surprising is that the final version of the bill released on October 19 differs in a key respect from the Exposure Draft issued a month ago. The first version linked the scope of legal protection for DRM to copyright infringement. That’s good policy. It’s also consistent with current Australian law and the key recommendation of the February 2006 Australian House of Representatives’ Legal and Constitutional Affairs Committee report on TPM exceptions. The new version does not make that crucial connection, and therefore creates a broader TPM ban.
While the new version’s TPM ban is broader, the Bill does contain two carve-outs: First, there’s no legal protection for region-coding access control technologies on video games and DVDs. That is likely to avoid some of the potentially anti-competitive impacts of geographic market segmentation via TPMs – a practice that involves no copyright right. The carve-out is presumably designed to preserve the 2005 Australian High Court ruling in the Sony v. Stevens PlayStation modchip case, but unfortunately, does so in the narrowest possible way. Second, there’s an attempt to exclude misuses of TPM provisions on embodied computer programs like the printer cartridge and garage door opener cases invoking the DMCA.
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