eNews on Copyright

THE AGD e-NEWS ON COPYRIGHT

Issue 37 – August 2005

Welcome to the third edition of the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department for 2005.

An HTML version of this newsletter with formatting and links is also available online at: http://www.ag.gov.au/enews.

You may forward this newsletter to friends and colleagues. When quoting from this newsletter, please provide an acknowledgment of source. Information on how to subscribe or unsubscribe is included at the end of the newsletter.

e-News editor: Angela Tsongas, angela.tsongasATag.gov.au

WHAT’S IN THIS ISSUE?

This e-news provides an update on the progress of implementation of the technological protection measures (TPM) obligation in Article 17.4.7 of the Australia–United States Free Trade Agreement (AUSFTA). Australia has until 1 January 2007 to implement this obligation.

Go to the end of the e-News for answers to the following questions:

Technological Protection Measures - Update

There are two elements involved in implementing the TPM obligation. The first element is the development of amendments to the Copyright Act 1968 to ensure compliance with Article 17.4.7. The second element involves a determination of whether there are additional exceptions to TPM liability that would be appropriate for Australia to create.

The Attorney-General’s Department is currently undertaking the first element.

At the request of the Attorney-General, the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) will undertake the second element. The Committee announced this reference on Wednesday 24 August 2005. Information about the reference can be accessed at http://www.aph.gov.au/house/committee/laca/previnq.htm. Further information about the TPM obligation and the Committee’s reference can be found below.

The implementation of the AUSFTA TPM obligation and the investigation of possible additional exceptions by the Committee are processes that are being run independently of the Digital Agenda Review and the Review of Fair Dealing Exceptions which are also currently being undertaken by the Attorney-General’s Department.

What are the TPM obligations?

Article 17.4.7 of the AUSFTA obliges Australia to introduce civil and criminal remedies in relation to the following three categories of activity:

The AUSFTA allows specific, limited exceptions to liability in relation to each of these three categories of activity. These exceptions are listed in the table below. The implementation of exceptions 1-7 are being considered by the Attorney-General’s Department as part of the first element of the implementation process.

 

Exceptions to liability for circumventing of access measures

Exceptions to liability for dealings with devices that circumvent access measures

Exceptions to liability for dealings with devices that circumvent copyright measures

1. reverse engineering for the purposes of achieving interoperability

X 

X 

X 

2. security testing of encryption technology

X 

X 

  

3. parental control locks

X 

X 

  

4. security testing of computers/networks

X 

X 

  

5. privacy issues

X 

    

6. law enforcement and national security

X 

X 

X 

7. libraries for making acquisition decisions

X 

    

8. other exceptions identified under an legislative or administrative review as addressing a credibly demonstrated actual or likely adverse effect on non-infringing use.

X 

    

Click here for a text version of the above table.

Exception 8 allows Australia to create other exceptions to liability in relation to the circumvention of access control measures providing these exceptions comply with certain criteria. This will be considered by the Committee as part of the second element of the implementation process. The Committee is currently seeking submissions on these ‘other’ exceptions.

What are the criteria for these ‘other’ exceptions?

Australia can only create ‘other’ exceptions if they comply with Article 17.4.7(e)(viii) and (f) of the AUSFTA. In summary, exceptions must:

Who should make a submission on the ‘other’ exceptions?

You may wish to make a submission to the Committee if you:

What should your submission address?

To be of most assistance to the Committee, submissions on ‘other’ exceptions should specifically address the criteria in Article 17.4.7(e)(viii) and (f) of the AUSFTA which are listed above.

Which permitted purposes are not covered by the specific exceptions?

Currently the Copyright Act provides that certain ‘permitted purposes’ are exceptions to the TPM provisions in the Copyright Act. These permitted purposes are listed below. With the exception of reproducing computer programs to correct errors, and law enforcement/ national security purposes, these activities are not covered by the specific exceptions in Article 17.4.7. If any of these exceptions are to continue to apply once Article 17.4.7 is implemented, it will need to fall within the ‘other’ exceptions being considered by the Committee.

What does Article 17.4.7 of the AUSFTA provide?

Article 17.4.7 Australia - United States Free Trade Agreement

7. (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorised acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

(i) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram, or other subject matter; or

(ii) manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public, or provides services that:

(A) are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure;

(B) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or

(C) are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure,

shall be liable and subject to the remedies specified in Article 17.11.13. Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities. Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, archive, educational institution, or public non-commercial broadcasting entity.

(b) Effective technological measure means any technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other protected subject matter, or protects any copyright.

(c) In implementing sub-paragraph (a), neither Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing sub-paragraph (a).

(d) Each Party shall provide that a violation of a measure implementing this paragraph is a separate civil or criminal offence and independent of any infringement that might occur under the Party’s copyright law.

(e) Each Party shall confine exceptions to any measures implementing sub-paragraph (a) to the following activities, which shall be applied to relevant measures in accordance with sub-paragraph (f):

(i) non-infringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs;

(ii) non-infringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorisation for such activities, to the extent necessary for the sole purpose of identifying and analysing flaws and vulnerabilities of technologies for scrambling and descrambling of information;

(iii) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing sub-paragraph (a)(ii);

(iv) non-infringing good faith activities that are authorised by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;

(v) non-infringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work;

(vi) lawfully authorised activities carried out by government employees, agents, or contractors for law enforcement, intelligence, essential security, or similar governmental purposes;

(vii) access by a non-profit library, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

(viii) non-infringing uses of a work, performance, or phonogram in a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those non-infringing uses is credibly demonstrated in a legislative or administrative review or proceeding; provided that any such review or proceeding is conducted at least once every four years from the date of conclusion of such review or proceeding.

(f) The exceptions to any measures implementing sub-paragraph (a) for the activities set forth in sub-paragraph (e) may only be applied as follows, and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures:

(i) any measures implementing sub-paragraph (a)(i) may be subject to exceptions with respect to each activity set forth in sub-paragraph (e);

(ii) any measures implementing sub-paragraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions with respect to activities set forth in sub-paragraph (e)(i), (ii), (iii), (iv), and (vi); and (iii) any measures implementing sub-paragraph (a)(ii), as they apply to effective technological measures that protect any copyright, may be subject to exceptions with respect to the activities set forth in subparagraph (e)(i) and (vi).

How can I get more information about the TPM implementation process?

For information about the implementation of the AUSFTA TPM obligation contact Kirsti Haipola, Copyright Law Branch, Attorney-General’s Department, e-mail: kirsti.haipolaATag.gov.au

For information about the Committee’s examination of additional exceptions go to http://www.aph.gov.au/house/committee/laca/previnq.htm

WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?

International and Projects Section

Contact: Chris Creswell, tel: (02) 6250 6312; e-mail: chris.creswellATag.gov.au

New Technologies Section

Contact: Gabrielle Mackey, tel (02) 6250 6608; e-mail: gabrielle.mackeyATag.gov.au

Trade and Enforcement Section

Contact: Fiona Phillips, tel (02) 6250 6658, e-mail: fiona.phillipsATag.gov.au

Commonwealth Copyright Section

Contact: Peter Ostergaard, tel (02) 6250 6380, e-mail: peter.ostergaardATag.gov.au

The head of the Copyright Law Branch is Helen Daniels, Assistant Secretary. Ms Daniels can be contacted on (02) 6250 6313, e-mail: helen.danielsATag.gov.au.

Mr Tim MacKinnon is responsible for copyright matters in the office of the Attorney-General, the Hon Mr Philip Ruddock MP, please phone: (02) 6277 7300.

For general enquiries telephone (02) 6250 6313; fax: (02) 6250 5929; e-mail: copyrightlawbranch@ag.gov.au.

WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?

The Copyright Law Branch website is at:http://www.ag.gov.au and follow these links, The Department, Portfolio Responsibilities, Copyright Law.

The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. To obtain copies of the guide please phone (02) 6250 6313.  The updated version is available online at:
http://www.ag.gov.au/copyright/shortguide.

Past publications including discussion papers and fact sheets on a variety of issues, are also available online at:

http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/RWP7B3B6A5CD28F19B5CA25704C001A5627

The Copyright Law Branch does not give legal advice to members of the public. The Copyright Law Branch can provide federal Government departments and agencies with legal advice on copyright law matters.

Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at: http://www.copyright.org.au/.

For information on patents, trade marks and designs contact IP Australia on tel: 1300 651 010 or access information online at: http://www.ipaustralia.gov.au/.

Reports of the Copyright Law Review Committee are available at http://www.ag.gov.au/clrc.

HOW CAN I SUBSCRIBE TO/ UNSUBSCRIBE FROM THIS NEWSLETTER?

Subscribe:

You may subscribe to the e-News by using the form at:

http://152.91.15.15/publications/copyright_enews/EnewsEmail/Enewsemail.html

You may also subscribe by sending an e-mail to lyris@lstsvr1.ag.gov.au. Leave the 'subject line' of your e-mail blank and include in the body [ie, the text part] of your message:

Subscribe enews:

Please note that e-mail addresses will only be used for the purpose of subscribing to e-News and will not be added to any other mailing lists unless you specifically request that this be done.

Unsubscribe:

You may unsubscribe by using the form at: http://152.91.15.15/publications/copyright_enews/EnewsEmail/Enewsemail.html

or by sending an email to lyris@lstsvr1.ag.gov.au, leaving the 'subject line' blank and including in the body of your message:

unsubscribe enews

The above form can also be accessed by clicking 'subscribe' on the following page: http://www.ag.gov.au/enews.

We would also like to hear from you if you have any feedback or comments on this newsletter. Send an e-mail to copyrightlawbranch@ag.gov.au.