| 13. Circumvention devices |
| 13.1 |
The DA Bill inserts a new s116A which provides for a civil right of action against persons who make or deal in certain circumvention devices or provide certain circumvention services. The scope of the prohibition is set out in subsection (1) as a three part test:
- a work (etc) is protected by an 'effective technological protection measure' ( ETPM ); and
- a person makes or deals in a circumvention device or provides a circumvention service (nb the device or service must be capable of circumventing or facilitating the circumvention of the ETPM) without the permission of the owner or licensee of the copyright in the work (etc); and
- the person knew, or ought reasonably to have known, that the device or service would be used to circumvent or facilitate the circumvention of the ETPM.
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| 13.2 |
In the exposure draft, the third part of the test required knowledge that the device would be used to circumvent and infringe. The DA Bill now simply requires knowledge that the device would be used to circumvent, and substitutes a narrower set of exceptions by introducing the concept of 'permitted purposes'. |
| 13.3 |
Subsection (3) exempts a supplier from liability under Section 116A for supplying a device/service where the customer gives the supplier (on or prior to supply) a signed declaration that the device will only be used for a permitted purpose (and identifies that purpose in the declaration). Subsection (4) exempts a manufacturer/importer from liability under section 116A for making/importing a device for use only for a permitted purpose or for the purpose of enabling a person to supply the device, or to supply a circumvention service, for use only for a permitted purpose. |
| 13.4 |
The 'permitted purposes' are defined exhaustively in subsection (7). That subsection states that a device/service is taken to be used for a permitted purpose only if:
- the device/service is used for the purpose of doing an act comprised in the copyright in a work (etc); and
- the doing of the act is not an infringement of the copyright in the work (etc) under section 47D, 47E, 47F, 49, 50, 183 or Part VB.
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| 13.5 |
This covers the interoperability (s 47D), error correction (s 47E) security testing (s 47F) library (ss 49, 50), government (s 183) and some educational (Part VB) exceptions and statutory licences. It does not, however, cover all exceptions in the Act. For example, making a copy under the fair dealing exceptions (ss 40, 41, 42, 43, 103A, 103B, 103C, 104) or under the preservation/replacement/etc exceptions (ss 51, 51AA, 51A) will not be a permitted purpose. Similarly, making a copy under the 'normal use' exception (s 47B) or the back-up exception (s 47C) will not be a permitted purpose. It also appears not to cover dealings in public domain material. |
| 13.6 |
There is a specific exception to Section 116A to cover law enforcement and national security activities (subsection (2)). |
| 13.7 |
The first part of the three part test in subsection 116A(1) requires that a work is protected by an ETPM. This is defined to mean a device or product, or a component incorporated into a process, that is designed to prevent or inhibit the infringement of copyright subsisting in a work (etc) if, in the ordinary course of its operation, access to the work (etc) protected by the measure is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work etc) with the authority of the owner or licensee of the copyright in a work (etc). This appears to confine the definition to access control devices and may not cover mere copy control devices (ie those that do not specifically restrict access). However, it may be possible to argue that copy control devices do fall within the ETPM definition by virtue of the fact that copy control devices provide an indirect form of access control by restricting access to authorised copies of a work (although this seems not to be a particularly strong argument). |
| 13.8 |
There was previously a potential problem with the ETPM definition that has now been addressed. Under the exposure draft definition, it was possible to argue that a technological protection measure that could be circumvented (ie through use of a device) was not an 'effective' technological protection measure because access was not available 'solely' by use of an access code with the authority of the copyright owner. This problem has been addressed by adding the words 'in the ordinary course of its operation'. In other words, the fact that a technological protection measure can be circumvented can no longer be used to suggest that the measures is not an 'effective' measure. |
| 13.9 |
The definition of 'circumvention device' is much the same as it was in the exposure draft. It means a device (including a computer program) having only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitating the circumvention, of an effective technological protection measure. Any suggestion that computer programs may not have been covered (which, presumably, was put to the Government in a submission) is now addressed by specific mention of such programs. Words have also been added to make clear that devices with no commercially significant purpose or use other than circumvention are caught. Put simply, to fall outside the definition, a device must have more than a limited commercially significant purpose other than circumvention. |
| 13.10 |
The definition of 'circumvention service' is very similar in scope to the definition of circumvention device. |
| 13.11 |
In relation to the third part of the three part test (ie knowledge that a device would be used to circumvent), subsection (5) reverses the onus of proof by establishing a presumption that the defendant (in an action under Section 116A) knew, or ought reasonably to have known that the device or service would be used to circumvent an ETPM. To escape liability under this part of the test, defendants must prove that they did not know and that they ought not reasonably have known that a device or service would be used to circumvent. This weakens a defendant's position slightly when compared to the exposure draft, in which a defendant was only required to prove that it was not reckless as to whether a device would be used to circumvent. |
| 13.12 |
Nonetheless, it is now clear that a person can make or import a circumvention device for a permitted purpose. It is also clear that a circumvention device/service can be supplied to a person who provides a signed declaration that it is to be used for a permitted purpose. Although the need for a signed declaration is not ideal, it does make the provision much more clear than in the exposure draft. |
| 13.13 |
It is not yet known whether a digital signature will be recognised by the Australian courts. However, it is possible that digital signatures created and verified using a secure public key infrastructure will be sufficient to meet the common law requirements for a signature. Digital signatures are also likely to be given specific legislative recognition when (and if) the Electronic Transactions Bill 1999 is passed and comes into force. |
| 13.14 |
Section 116D sets out the relief available in an action under Section 116A. A court may grant an injunction and either damages or an account of profits. Provision is also made for aggravated damages awards. |
| 13.15 |
Criminal sanctions against making or dealing in circumvention devices and providing circumvention services are also included in the DA Bill. To achieve this, several new subsections are added to section 132 in substantially the same terms as Section 116A. The main difference with the criminal sanctions is that the knowledge test is based on recklessness (as it was in the exposure draft) and the defendant bears a lesser burden of proof. |
| 13.16 |
These provisions should ensure that most libraries and archives have the right to acquire circumvention devices and services where technological measures are used to prevent them from making copies under sections 49 and 50. This may help to deter the use of unreasonably restrictive technological measures by electronic publishers. It would be better, however, if circumvention devices/services were available for a broader range of permitted purposes than those currently referred to in the DA Bill. Libraries and archives should, for example, have the right to acquire devices to circumvent ETPM where necessary to make preservation copies of electronic material in their collections. |
| 14. Educational statutory licence |
| 14.1 |
In general terms, the DA Bill updates the statutory licence for educational copying as follows:
- The educational licence is split into two schemes. Division 2 will deal with reproduction of works that are in hardcopy form (essentially, the current scheme). Division 2A will deal with reproduction and communication of works that are in electronic form (the proposed new scheme).
- Educational institutions will be able to copy a different quantity of a work depending on whether the source material (from which copies are made) is in hardcopy or electronic form. For example, the 'reasonable portion' and 'commercial availability' tests will be slightly different for hardcopy and electronic source material.
- The method of calculating the equitable remuneration payable by an educational institution will depend on whether the copies made are in hardcopy or electronic form. Remuneration for hardcopies made under the current scheme is calculated either on the basis of a full record-keeping system or a sampling system (institutions must choose which system they wish to use by issuing a records notice or a sampling notice). Remuneration under the proposed new scheme will be calculated on the basis of an 'electronic use system'. An electronic use system will need to set out the amounts to be paid for both electronic copying and electronic communication of works. This is different from the exposure draft (which made no mention of an electronic use system).
- Various details in relation to the proposed new scheme (especially the basis of measuring copying/communication and calculating remuneration) will need to be agreed between an educational institution and the relevant collecting society (ie CAL). If agreement cannot be reached, the tribunal can resolve the matter.
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| 14.2 |
A detailed analysis of the changes to this part of the Act is beyond the scope of this summary. |
| 15. ISP liability |
| 15.1 |
A number of provisions in the DA Bill relate to the issue of ISP and communications carrier (ie phone company) liability. In general terms, the DA Bill provides that:
- Direct liability for making a communication will rest with the 'person responsible for determining the content of the communication'. This is intended to exclude ISPs and carriers from direct liability when material is communicated to the public using their networks, but they do not determine the content of those communications (subsection 22(6)).
- Indirect liability for 'authorising' infringements of copyright will be determined according to a codified authorisation test (based on existing case law), now set out in new subsection 36(1A). Under that subsection, authorisation liability will depend on, amongst other things, the extent of a person's power to prevent an infringement, the nature of the relationship with the direct infringer, and whether any reasonable steps were taken to prevent or avoid the act of direct infringement (including compliance with any relevant industry codes of practice).
- Indirect or 'authorisation' liability is further clarified for carriers and carriage service providers (which, broadly, should cover many phone companies and ISPs) through new sections 39B (works) and 112E (audiovisual items). These sections state that authorisation liability will not arise 'merely because the carrier or carriage service provider provides facilities' used by a person to infringe. The reference to 'facilities' gives this clause broader application than the exposure draft, which referred to 'physical facilities'. The Explanatory Memorandum explains that 'facilities' is intended to cover both physical facilities (and gives the example of a server) and 'the use of cellular, satellite and other technologies'.
- Liability for making temporary copies is also addressed through the temporary reproduction exception set out in sections 43A and 111A (which, as explained above, should cover 'browsing' and some 'caching').
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| 15.2 |
The net effect of these provisions is that phone companies and ISPs are much less likely to be liable for direct infringements, but may need to take some steps to ensure that they are not liable for indirect infringement. |
