Technological protection measures and circumvention devices - will new laws solve the problem?

By Peter Knight.

Key Points:
The proposed changes will not stop circumvention devices which get around copyright protection.

The Government has released for comment the Copyright Amendment (Technological Protection Measures) Bill 2006.

We have commented previously upon the problems surrounding the origins and problems surrounding the current provisions of the Copyright Act 1968, in the definition in section 10 and the operative provision, section 116A, and the proposals in the Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs regarding the need for a host of "exceptions".

There is nothing remarkable about the proposed provisions, other than that they replace the existing provisions with over 20 pages of legislative drafting, a triumph of prolixity compared to the brief (and proven to be effective) equivalent in section 296 of the UK Copyright Designs and Patents Act 1988. What is odd is that the new legislation is justified on the basis of implementation of the Australia-United States Free Trade Agreement (AUSFTA) – perhaps true to the extent that the current completely ineffective provisions needed to be replaced with something operative, but odd in that the drafting appears to conflict with both the spirit and the letter of the AUSFTA.

At the same time, has the legislative draftsperson learnt anything from what has happened in this area? In our view, the provisions are very likely, presented with the same circumvention devices we have already seen in the decided cases, to fail again in their apparent purpose.

In Sony v Stevens [2005] HCA 58, the existing provisions failed the copyright owner because the technology in question did not prevent copying (a copyright act) but prevented use (not a copyright act). Would the same technology now pass the test?

First, under the proposed provisions, for the copyright owner to establish that it has a technological protection measure it must show:

1. its "device, component or product (including a computer program)" was "designed" to do something specific – the plaintiff must prove what was in someone’s mind, possibly the designer or possibly the person who applied the device to its current use, at some previous time in history;
2. that specific intention of the designer which must be proved is to prevent breach of copyright (ie copying) by a particular type of person – it is not enough if the intention behind the device was to prevent access or use alone by this person;
3. the particular type of person who must be in the designer’s mind is a person who does not have "the permission of the owner or exclusive licensee" – permission to do what is left unstated (grammatically, it could be permission to "access" or permission to copy, or both); and
4. the designer must have intended that his or her TPM would prevent copying by denying the unauthorised person "access" to the copyright material (alas, "access" is not defined, although it is an expression used in the AUSFTA).

If Sony v Stevens were re-run, could Sony prove the intention of the designer was to prevent copying by preventing unlawful "access"? What if the designer had another intention, such as a system which limits the number of users or uses made of the copyright material, but the technology is also effective for copy protection? What if the designer had several intentions? The obsession of our contemporary legislators with DVD zoning and parallel importation generally is made evident by a footnote inserted in the definition of "access control technological protection measure" which refers to the "sole purpose" of zoning, but this is completely unhelpful, at best, or wrong, at worst, because the proposed standard does not refer to a sole, inappropriate purpose of the designer disentitling protection, but the opposite, namely that the designer could only have an appropriate purpose in order for the device to be entitled to protection..

Furthermore, we have the problem of this word "access" - the Sony device does not prevent "access" at all – it prevents use of the copied disk (as the High Court was at pains to point out), and it does not by doing so prevent copying at all. In this, again, the Sony device has features and functionality common to nearly all copy protection systems. For example, the "toggle" in Autodesk v Dyason did not prevent "access" to the AutoCAD software, its absence caused the software to stop operating. In effect, the legislation requires the copyright owner to prove the intentions of the designer of the alleged TPM.

Second, even assuming we can overcome the problems created by the definition of "technological protection measure," the hapless copyright owner must prove that the defendant is offering a "circumvention device." To do this, he must show the alleged circumvention device:

• is promoted, advertised or marketed as having a purpose of circumventing the subject TPM; or
• has no other, or little other, purpose or use; or
• is primarily or solely designed or produced for the purpose of enabling or facilitating circumvention of the subject TPM.

This, of course, is so easily defeated. Mr Stevens need only now say that the chip he is selling is intended to overcome DVD zoning (and sell "Bali silvers" as well), Mr Dyason need only supply the toggle for the purpose of helping licensees of the software who have lost theirs, in the unlikely event that any of these standard copy protection devices is a TPM, and the copyright owner is defeated anyway.

Apart from this, we have in addition pages and pages of exceptions. These add little and are unlikely to be tested.

It is a shame that the draftsperson again made no attempt to deal with the known examples of copy protection devices, nor to use language proved to be effective from the UK legislation, but chose instead to re-use language from the previous definitions which have been proved ineffective and vague words from the AUSFTA. These amendments are yet another drafting shipwreck waiting to happen, no doubt at great expense to copyright owners.