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by Catherine Hawkins [∗]
This paper examines whether the proposed new remedies to be included in the Copyright Act 1968 against the abuse of technological copyright protection measures are likely to enhance or restrict the availability of copyright material in the public domain.
The findings and recommendations of the CCG, CLRC, WIPO, the Attorney-General’s Department and the Department of Communications and the Arts are presented and analysed. The paper concludes that there should be some form of legislative protection for technological measures, and that such protection would not be against the interests of the public domain. On the other hand, the author stresses that in developing such legislative protection, the Government must be aware of the possibilities of diminishing access to public domain material and reducing the effectiveness of the fair dealing exceptions.
But is that public domain really under threat? The answer, plainly, is ‘yes’. Look at every aspect of intellectual property and the evidence is plain: the public domain, like the mighty rain-forests of South America, is being whittled away almost while we watch.[1]
Ultimately, the ‘digital economy’ will only prove to be viable if the creators of material disseminated by means such as the Internet consider that they have adequate and enforceable protection for their works.[2]
This paper discusses the proposals in the Discussion Paper Copyright Reform and the Digital Agenda (the Digital Agenda paper) on technological copyright protection measures. The purpose of this paper is to examine whether the proposed new remedies to be included in the Copyright Act 1968 (the Copyright Act) against the abuse of technological copyright protection measures are likely to enhance or restrict the availability of copyright material in the public domain. This is an important issue. Appropriate copyright laws are needed to reward and encourage cultural and intellectual endeavours such as the creation of literature, computer software, musical works, artistic works, films, sound recordings and broadcasts. Appropriate copyright protection must be balanced to ensure that the community has reasonable access to such creative endeavours.
This paper explores what is meant by the terms ‘public domain’ and ‘technological copyright protection measures’. It discusses a brief background to the Digital Agenda proposals, the proposals in the Digital Agenda paper and the responses received on them. After surveying these matters this paper assesses whether the new move to protect technological measures is likely to reduce access to copyright material in the public domain or, on the contrary, whether such proposals are necessary to facilitate the continuing creation of material for the public domain.
At the seminar ‘Defining the Public Domain: The Limits of Copyright’, defining the public domain was not limited to debates about whether the term of copyright protection is too long or should be extended,[3] whether the idea/expression dichotomy in copyright has collapsed,[4] or issues relating to the subsistence of copyright such as the requirement of originality[5] and material form.[6] The exploration of the term ‘public domain’ was not limited to examining which material is not protected by copyright at all, either through the expiry of the term of protection, or because it is ‘an idea’ rather than ‘an expression’ of an idea,[7] not original or not in material form.
Papers presented at the seminar broadly interpreted the concept of the ‘public domain’ and extended it beyond a consideration of the limits of copyright to an examination of exceptions to copyright, that is, permitted uses of copyright material including use of copyright material for the purpose of fair dealing. In this paper I use the term ‘public domain’ in the broad sense to refer to both the limits of copyright, such as material in which no copyright subsists, and permitted exceptions to copyright, such as fair dealing.
There has been a good deal of debate about whether the advent of digital technologies and the ever-increasing growth of the Internet will sound the death knell of copyright.[8] But, ever resilient, owners of copyright have been quick to turn technology to their advantage and hence the development of many forms of technological protection measures used by copyright owners to protect their material from unauthorised use.[9]
The unwieldy expression ‘technological copyright protection measures’ conjures up high-tech images that many people would be happier to leave to IT specialists than grapple with themselves. But, most people working in offices in Australia, for example, would come in contact with technological protection measures on a daily basis. Many office workers would be required to type in a password to log onto their fileservers and email accounts in the morning at work. The use of password protection is a common form of technological protection that can be used to protect copyright material.
Computer program ‘locks’ are another example of technological copyright protection measures. Computer program locks include devices such as the AutoCAD lock that was central to the Autodesk litigation on copyright protection for computer software.[10]
The encryption or scrambling of subscription broadcasts is another example of a technological copyright protection measure. Pay TV operators encrypt their signals to ensure that only paying subscribers can view the signal by using a ‘decoder’.[11] ‘Spoiling devices’ are also employed to prevent unauthorised copying of CDs and cassettes.
As quickly as owners of copyright use technology to protect their material from unauthorised use, pirates on the cyber-frontier develop devices or services to get around these measures. For example, Mr Kelly in the Autodesk case produced and marketed an unauthorised device called the Autokey lock which circumvented the AutoCAD lock and thus enabled the AutoCAD program, or a copy of it, to be used on a computer without the AutoCAD lock.
The Copyright Convergence Group (CCG) recognised the problem of signal piracy in its 1994 report, Highways to Change: Copyright in the New Communications Environment, and noted that there was inadequate legislation to deal with signal theft.[12] To overcome the problem of signal theft, the CCG recommended the introduction of two new offences for fraudulent reception of transmission and making, importing, selling or letting for hire unauthorised decoding devices.[13]
In 1995, the Copyright Law Review Committee released its report, Computer Software Protection. The CLRC report recommended the introduction of remedies for the unauthorised circumvention of locks on computer programs. Specifically, it recommended that owners of copyright and their exclusive licensees should have the right to prevent the commercial manufacture, importation, distribution and possession for commercial purposes of devices which are designed to facilitate the unauthorised circumvention of locks or other devices applied to protect computer programs from unauthorised copying.[14]
The CLRC did not advert to the problems of potentially limiting access to public domain materials in making its recommendation for new copyright remedies against defeating computer program locks. However, the Committee did emphasise that it foresaw that there would be instances in which users of copyright material would have cause to legitimately circumvent locking devices such as for the purpose of decompilation or error correction or to create a new interoperable program.[15]
While the CCG and CLRC reports recommended new remedies against the abuse of technological measures, not all commentators have been convinced of the need for such remedies. For example, in 1995, Mr Howard Knopf, Executive Director of the Canadian Intellectual Property Institute (CIPI), University of Canada, warned of problems in introducing new remedies for technological measures. He argued that:
The dangers of unwise legislation include possible heavy-handed deterrence of legitimate activity ... public disrespect for dead-letter laws, the technical imposition of ‘de facto’ perpetual copyright, and the significant depletion of political capital that will surely be needed by copyright owners some day when there is a real (as opposed to potential) crisis at hand.[16]
At the international level, the need for owners of copyright to have remedies against abuse of technological copyright protection measures in the Internet age has been recognised in the new World Intellectual Property Organisation (WIPO) treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).[17] These two treaties were concluded at a WIPO Diplomatic Conference in December 1996 in Geneva.
After much debate at the WIPO Diplomatic Conference about the wording of the technological measures provisions, the final obligations in the WIPO treaties provide as follows:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures [that are] used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorised by the authors concerned or permitted by law.[18] (emphasis added)
The wording of the technological measures obligations in the new WIPO treaties is intentionally more general than the prescriptive provisions in the so-called ‘Basic Proposals’. The Basic Proposals were the negotiating documents considered at the WIPO Diplomatic Conference. The technological measures obligations in the Basic Proposals would have required Contracting Parties to make unlawful the commercial dealings with protection defeating devices.[19] Effectively, the obligations concerning technological measures in the Basic Proposals would have required a ban on certain devices.
Several major concerns were debated at the Diplomatic Conference in relation to the detailed technological measures proposal in the Basic Proposals. There was a concern that the wording of the provision was such that it could be taken to potentially ban PCs and other general purpose consumer electronic goods, such as VCRs, on the basis that they could be interpreted as being ‘protection-defeating devices’ which were expressly outlawed by the proposal. These concerns had also been raised well before the Conference began.[20]
Users of copyright material were concerned that the broad technological measures proposal would mean that copyright material could be ‘locked up’ and kept out of the public domain even after the expiry of the term of protection. If ‘devices’ were effectively banned, users of material would not have the technological capacity to access material protected by technological measures in cases in which the material was no longer subject to copyright protection. A related concern was that a ban on devices would mean that such devices would be lost to all users despite the fact that the use of such devices to get around certain technological measures could be permitted by law, eg, under the various existing exceptions provisions.[21]
Undeniably, the technological measures proposal in the Basic Proposals caused consternation and stimulated intense debate at the Diplomatic Conference. However, various post-conference assessments on the final text of the technological measures provisions welcomed the final text as striking a fairer balance between the needs of users and owners than the proposal in the Basic Proposals.[22] The vigorous lobbying of a broad alliance of user groups and the consumer electronics industry contributed to ensure that the technological measures obligations were not so broad as to lock up public domain material or ban devices with legitimate uses.
The growing need for protection for technological measures, as recognised in the CCG and CLRC expert advisory reports and the new WIPO treaties, led to the Digital Agenda proposals on technological measures.
The Digital Agenda proposals on technological measures were set out in the Digital Agenda paper, which was jointly released by the Attorney-General’s Department and the Department of Communications and the Arts in July 1997.[23]
The Digital Agenda paper invited comment on proposed legislative amendments to the Copyright Act to improve copyright protection in the face of technological advances, recommendations made by the CCG, the CLRC and new WIPO standards. In the foreword to the paper the Attorney-General, the Hon Daryl Williams AM QC MP, and the Minister for Communications, the Information Economy and the Arts, Senator the Hon Richard Alston, reiterated that the Government is committed to ensuring that the effective protection of the rights of copyright owners in the new communications environment is balanced against the need of users to have reasonable access to copyright materials.
The Digital Agenda paper proposed two new rights, a right of transmission to the public and a right of making available online to the public, and two ‘temporary copies’ exceptions for transmission and browsing. The paper invited comments on the application of the existing fair dealing exceptions to the new rights, exceptions for libraries and educational institutions and limitations on the liability of Internet service providers (ISPs).
Each of these issues could be analysed from the standpoint of assessing whether these proposals might operate to limit the copyright material in the public domain. For example, the interpretation of the expression ‘to the public’ is critical to setting the parameters of the proposed new transmission and making-available rights. If a transmission is not a transmission ‘to the public’ then such a transmission will not be an exercise of a copyright owner’s rights.
However, the focus of this paper is on the technological measures proposal in the Digital Agenda paper. The technological measures proposal is a new enforcement measure designed to supplement the proposed transmission right and the right of making available to the public by providing new ways to enforce the standards. Obviously it is of limited utility to have rights if there is no effective means of enforcing such rights. It could prove to be the case that the technological measures obligations come to be regarded as the most valuable provisions in the new WIPO treaties for copyright owners.[24] For that reason the technological measures obligations raise particular concerns for users of copyright material.
The proposals in the Digital Agenda paper effectively would outlaw devices and activities designed to circumvent or defeat certain forms of ‘technological’ copyright protection. The paper proposed both civil and criminal remedies for the commercial dealings with unauthorised equipment or information on receiving encrypted broadcast signals, circumventing electronic ‘locks’ and circumventing ‘spoiler’ devices on CDs.[25] One reason for providing for remedies against the abuse of specific forms of protection measures was to endeavour to avoid inadvertently banning legitimate devices.[26]
Consistently with the Digital Agenda paper approach, the proposed European Commission (EC) Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (the proposed EC Directive) is not directed simply at ‘circumvention of technological measures’ but extends to the commercial dealings with devices to circumvent technological measures.[27] The proposed EC Directive states that the remedies against the commercial dealings with such devices is a ‘fundamental element’ as ‘the real danger for intellectual property rights will not be the single act of circumvention by individuals, but the preparatory acts carried out by the commercial companies that could produce, sell, rent or advertise circumventing devices’.[28] That is, on the analysis of the EC, a ban on devices is the only ‘effective legal remedy’ against the circumvention of technological protection measures.
The Digital Agenda paper also invited comment on whether the act of receiving an encrypted signal should be a criminal offence.[29] Apart from this proposal, the Digital Agenda paper made no proposals to make the act of an unauthorised use of a device subject to criminal or civil sanctions.
On the basis of the technological measures proposals in the Digital Agenda paper, the commercial dealings with unauthorised decoders, that is, the manufacture, sale and importation of such devices, would be a criminal offence and could also be the subject of civil suit from the copyright owner in the broadcast signal that the unauthorised decoder was designed to unscramble. [30]
The Attorney-General’s Department and Department of Communications and the Arts have received about 70 submissions and conducted about 13 face-to-face consultation forums with interests on the proposals in the Discussion Paper.[31] Generally, the paper has been favourably received and welcomed as presenting a fair balance between the interests of owners of copyright and users of copyright.
Notwithstanding the general support for the Digital Agenda proposals, the technological measures proposals have been contentious. There has been disagreement about the appropriateness of the technological measures proposals in the Digital Agenda paper, particularly in regard to computer program locks and locks on copyright materials on the Internet.[32]
Before focusing on the divergence of views, it should be emphasised that there has been universal in-principle support for new remedies to afford copyright owners some form of legal protection against the abuse of technological copyright protection measures. The disagreement is about how to, and the extent to which, rights of users and the public domain should be safeguarded rather than whether technological measures should be afforded any protection at all.
The feedback on the technological measures proposals in the Digital Agenda paper echo the debate leading up to, and at, the Diplomatic Conference on the technological measures obligations. A number of submissions have suggested that ‘devices’ should not be made unlawful, or banned, as such but the unauthorised use of devices to defeat technical measures such as ‘locks’ or encryption used by copyright owners to protect their copyright material should be banned. Several submissions noted that the new WIPO treaties do not require a device ban and so a ban on unauthorised uses of such devices would be well within international obligations.
The Australian Council of Libraries and Information Services (ACLIS) and other submissions have stressed that care needs to be taken to ensure that any legislative reform in this area does ‘not prevent the manufacture and use of technologies necessary to ensure the ability of users to rely, where appropriate, on fair dealing and other user rights’.
The Supporters of Interoperable Systems in Australia (SISA) is particularly concerned about this issue and warned that a device ban means that such devices are lost for all people for all time. A device ban does not recognise that most devices have legitimate and socially valuable uses, quite apart from their unlawful, infringing uses.
The Law Council of Australia submitted that although the Digital Agenda paper did not propose that the act of using a device should be unlawful, the Law Council expressed concern that the effective result may be that use of a device is prevented. If a manufacturer or a distributor of a circumvention device is made liable, the effect will be that users will not be able to obtain such devices and the result will be that users cannot circumvent protection measures which have the effect of preventing their authorised uses of material.
On the other hand, bodies representing the interests of copyright owners, such as the, Australian Copyright Council and the Australian Record Industry Association (ARIA) supported the technological measures proposals in the Digital Agenda paper. However, they submitted that the proposals are too narrow and that the prohibition should not be limited to certain defined technologies, such as spoiler devices and locks, but should have general application.
The Digital Agenda paper raised a number of key issues for consideration. In relation to the technological measures proposals, the paper asked whether owners of copyright material who use technological copyright protection measures should be compelled to give access to users of copyright material ‘locked up’ by technological measures if users of copyright material are to be able to use that copyright material pursuant to the fair dealing and other exceptions in the Copyright Act. Broadly speaking, this raises the interesting issue of whether fair dealing provisions can be used as a ‘shield’ or a ‘sword’. Little guidance was provided on this point in the submissions received on the Digital Agenda paper.
The Australian Copyright Council and a number of others, including the Internet Industry Association, opposed copyright owners being compelled to give access to material where a use of that material is allowed by a special exception or statutory licence. The ACC was of the view that the purpose of these provisions is to regulate the use of a work to which a person has access, not to give access to otherwise inaccessible material.
Indeed, right holders are free to keep their work locked in their offices or make access to copyright material subject to a fee.[33] For example, an art gallery can charge admission fees to an exhibition but that does not mean that copyright users can rely on fair dealing exceptions in copyright law and expect to get into the exhibition for free in order to make reproductions of the artistic works for the purpose of research or study.
In contrast to the views submitted by the ACC, the Arts Law Centre of Australia and the Australian Archives submitted that copyright owners who use technological copyright protection measures should be obliged to make their copyright material accessible to those who wish to use it pursuant to the fair dealing and other exceptions in the Act. According to the Australian Archives, a failure to implement compulsory access requirements will have far-reaching negative ramifications for the future development and exploitation of digital information networks by frustrating legitimate use and hindering research and education.
From the general support in the submissions on the Digital Agenda proposals on technological measures it can be concluded that some form of legislative protection for technological measures is considered to be in the broad public interest and not against the interests of the public domain. There is a general recognition that it is in the public interest for owners of copyright to be encouraged and rewarded to create works and in this regard there is support for legislative protection to measures to assist owners of copyright to enforce their rights.
It is equally clear from the strong arguments posed by users criticising the so-called devices ban in the Digital Agenda paper that there are many pitfalls to avoid in developing legal remedies for technological protection measures – interests have raised the possibility of access to public domain material being diminished and the effectiveness of fair dealing exceptions being reduced. The Government has been put on notice that a poorly drafted ban on devices could lead to an inadvertent banning of devices with legitimate, lawful purposes.
The Government has before it a fine balancing act to get right in introducing effective legal remedies for technological copyright protection measures while not losing sight of the needs of users and the public domain. In rising to this challenge, to save and not sabotage the public domain, the Government has been greatly assisted by the helpful and thoughtful feedback on the Digital Agenda proposals from a very broad range of bodies representing both owners of copyright and users of copyright.
From my perspective as a Government copyright policy lawyer working in the Attorney-General’s Department, the choice the Key Centre for Cultural and Media Policy made this year in concentrating on the ‘public domain’ and copyright was timely and provided valuable assistance in developing copyright law reforms in response to the new WIPO treaties and the Digital Agenda paper proposals.
[∗] BA/LLB University of Sydney. Senior Government Lawyer, Intellectual Property Branch, Attorney-General’s Department.
[1] Phillips, J, ‘The Diminishing Domain’, [1996] 8 EIPR 429-430 at 430.
[2] Davies, C, ‘WIPO treaties – the new framework for the protection of digital works’, Communications Law, Vol 2, No 2, 1997, 46-48 at 48.
[3] Generally, the Council Directive 93/98/EEC of 20 October 1993 harmonising the term of protection of copyright and certain related rights (the EC Directive on Term of Protection) extends the term of protection for literary and artistic works to life of the author plus 70 years. Currently the general term of protection provided in the Berne Convention is life of the author plus 50 years. The extended term of protection for copyright material provided in the EC Directive is in contrast to the moves in WIPO to protect non-original databases for a shorter term of protection. The Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be considered by the Diplomatic Conference (CRNR/DC/6), ie, the proposed treaty on databases, proposed two options for the term of protection for non-original databases, namely 25 years or 15 years. The Basic Proposal on databases was not considered at the WIPO Diplomatic Conference in December 1996 in Geneva but it was agreed that the databases proposal would be considered in the future.
[4] Article 9(2) of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides that ‘copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’ However, the Autodesk litigation highlights that the distinction between an ‘idea’ and an ‘expression’ of an idea is sometimes difficult to draw clearly in practice.
[5] Section 32(1) of the Copyright Act provides that copyright subsists in original literary, dramatic, musical and artistic works that are unpublished. Section 32(2) of the Act provides that copyright subsists in original literary, dramatic, musical and artistic works that are published.
[6] Section 22(1) of the Copyright Act provides that a work is made when it is first reduced to writing or to some other material form. Section 10(1) of the Copyright Act defines ‘material form’ as ‘in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced.’
[7] On this issue see the papers in this volume by Warwick Rothnie and Jamie Wodetzki.
[8] Such a debate has been characterised by Mihaly Ficsor (WIPO) as the ‘first stage’ of three stages of discussions on the impact of digital technology on copyright law. According to Ficsor, part of the first stage was the belief ‘that copyright only had one duty now, namely that it should die and be buried as deep as possible.’ On Ficsor’s analysis, the WIPO treaties and the Digital Agenda proposals would represent the ‘third stage’ which recognises that advances in new technologies have necessitated changes to, but not an entire transformation of, copyright laws. Ficsor, M, ‘Latest developments regarding the Protocol to the Berne Convention and the New Instrument’, ALAI Study Days, Copyright in cyberspace, Copyright and the Global Information Infrastructure, Amsterdam, 4-8 June 1996, 29-34, at 29-30.
[9] There are many examples of such technological measures. See, for example, Ashton-Davies, S, ‘Digital Locksmiths’, The Australian, 10 February 1998, 53. That article discussed the concept of ‘digital certificates’ and noted that ‘although a digital certificate does not replace user ID and password security, it introduces an additional and stronger layer of security that is less prone to violation than the traditional method.’
[10] Autodesk v Dyason [1992] HCA 2; (1992) 173 CLR 330. In that case, the AutoCAD program was designed not to work unless the user’s machine was fitted with an AutoCAD lock.
[11] It has been said that ‘[e]ncryption is as old as the Tower of Babel. Mankind has always used codes and signals to render private otherwise public communication. In the computer world this takes the form of encryption software.’ See Knopf, HF, ‘The Role of Law in Dealing with Technological Solutions to Copyright Problems created by Technology’, WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure, Mexico City, 22-24 May 1995, 205-247, at 221.
[12] Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment, 1994, at 53-4.
[13] In February 1996, the previous Government released an Exposure Draft Copyright Amendment Bill 1996 (the Exposure Draft). The Exposure Draft proposed amending the Copyright Act to include provisions for civil remedies against persons who dealt commercially with unauthorised decoding devices, and also made provision for criminal offences for the fraudulent reception of encoded broadcasts and for the commercial dealing in unauthorised decoding devices. The Exposure Draft was not introduced into Parliament before the federal election was called in 1996.
[14] Copyright Law Review Committee report, Computer Software Protection, 1995, recommendation 2.73, at 21.
[15] Copyright Law Review Committee report, Computer Software Protection, 1995, recommendation 2.29, at 12.
[16] Knopf, HF, ‘The Role of Law in Dealing with Technological Solutions to Copyright Problems created by Technology’, WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure, Mexico City, 22-24 May 1995, 205-247, at 208.
[17] The new WIPO treaties may be accessed at http://wipo.int [check address]
[18] Article 11 in the WCT. Article 18 in the WPPT provided an obligation in similar terms.
[19] Article 13 in the Basic Proposal for the Substantive Provisions of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works to be considered by the Diplomatic Conference (CRNR/DC/4) provided obligations concerning technological measures as follows:
(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorised by the rightholder or the law.
(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).
(3) As used in this Article ‘protection-defeating device’ means any device, product or component incorporated into a device or product, the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under the Treaty.
Article 22 in the Basic Proposal for the Substantive Provisions of the Treaty on for the Protection of Performers and Producers of Phonograms to be considered by the Diplomatic Conference (CRNR/DC/5) provided similar obligations concerning technological measures.
[20] Creswell, C, ‘Copyright Protection Enters the Digital Age: The New WIPO Treaties,’ Copyright Reporter, 1997, Vol 15, No 1, 4-21, at 14.
[21] Vinje, T, ‘The New WIPO Copyright Treaty’, [1997] 5 EIPR 230-236 at 234.
[22] Vinje, T, ‘The New WIPO Copyright Treaty’, [1997] 5 EIPR 230-236 at 235 and Wodetzki, J, ‘What about the Copyright User?’ 103-111 at 110 in Saunders, D and Sherman, B (eds), From Berne to Geneva: Recent Developments in International Copyright and Neighbouring Rights, Australian Key Centre for Cultural and Media Policy, 1997.
[23] The Discussion Paper, Copyright Reform and the Digital Agenda, is available at http://law.gov.au and http://www.dca.gov.au.
[24] Dr Hugenholtz, Institute of Information Law, University of Amsterdam, the Netherlands, has suggested that ‘on the superhighway, copyright law will, perhaps, no longer be the legal cornerstone of the information trade. Rather, the future role of copyright will be to act as a legal ‘safety net’ whenever technical or contractual protection schemes would fail.’ See Hugenholtz, PB, ‘Intellectual Property Rights in the Information Superhighway, Report to the Commission of the European Communities (DG XV), 1994, at 13.
[25] Discussion Paper, Copyright Reform and the Digital Agenda, 1997, at 36-7.
[26] See Vinje, T, ‘Brave New World of Technical Protection Systems’ [1996] 8 EIPR 431-440 at 433.
[27] Article 6 of the proposed EC Directive provides for the protection of technological measures as follows:
(1) Member States shall provide adequate legal protection against any activities, including the manufacture or distribution of devices or the performance of services, which have only limited commercially significant purpose or use other than circumvention, and which the person concerned carries out in the knowledge, or with reasonable grounds to know, that they will enable or facilitate without authority the circumvention of any effective technological measures designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC.
(2) The expression ‘technological measures’, as used in this Article, means any device, product or component incorporated into a process, device or product designed to prevent or inhibit the infringement of any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. Technological measures shall only be deemed ‘effective’ where the work or other subject matter is rendered accessible to the user only through application of an access code or process, including by decryption, descrambling or other transformation of the work or other subject matter, with the authority of the right holders.
[28] Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society, Brussels, 1997, COM(97)628 final.
[29] Discussion Paper, Copyright Reform and the Digital Agenda, 1997, at 36.
[30] Discussion Paper, Copyright Reform and the Digital Agenda, 1997, at 36.
[31] Lists of the submissions received on the Digital Agenda paper are available at the websites of the Attorney-General’s Department http://law.gov.au and the Department of the Communications and the Arts http://www.dca.gov.au. Please make direct contact with the authors of submissions if you would like a copy of their submission on the paper.
[32] It can be inferred from the responses to the Digital Agenda paper that the banning of unauthorised decoders seems to be less contentious than banning devices to defeat computer program locks and locks on Internet materials. It seems that encryption of subscription broadcasts is accepted as a legitimate barrier to access – but this acceptance of legitimate encryption for pay TV transmissions does not translate to acceptance of the encryption of copyright material on the Internet. Although there is arguably a qualitative and quantitative difference between the copyright material on pay TV and the Internet, it would seem that the distinction is only a distinction of degree.
[33] However, as Thomas Vinje notes the law does not prevent all reproductions of all published works. He makes the point that a prohibition on specific unauthorised decryption devices is specifically directed at preventing clearly illegal access. In contrast, he argues, broad provisions shielding ‘technical protection systems’ would prevent the legitimate possessors of copyright works from doing what the law permits them to do. See Vinje, T, ‘Brave New World of Technical Protection Systems’ [1996] 8 EIPR 431-440 at 433.
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