Australian Video Retailers Association and Others v Warner Home Video Pty Ltd and Others
On 7 December 2001, the Australian Federal Court issued a decision on the extent to which copyright owners can control the rental of DVD discs under the Australian Copyright Act 1968. The decision also placed some limits on the copyright rights applicable to computer programs.
Warner was brought before the court by the Association and its members for alleged threats of copyright infringement, and cross-claimed for infringement in relation to the rental of it’s DVD discs in the absence of a commercial rental arrangement. The Act provides exclusive rights to enter into a commercial rental arrangement for computer programs, but provides no such exclusive rental rights for cinematograph films.
The court was required to deal with a number of legal issues, discussed below, after acquainting itself with DVD technology. A DVD player includes computer program instructions embedded amongst the motion picture content on the disc. When the disc is played, the program instructions are copied into the RAM of a DVD player or computer, as required, to generate a menu interface for a person viewing the disc and to control play of the content. When decrypted, a number of streams of data are read from a DVD disc, including an MPEG video stream, audio stream, caption stream and command stream. The captions are used to produce subtitles and highlight buttons on the menu, whereas the commands are used to provide the menus presented. The video and audio content of the DVD discs was 99% of the total content of the discs.
Copying of Cinematograph Film
It was argued that the playing of a DVD disc constituted making a copy of the cinematograph film embedded in the DVD disc, according to s.86(a) of the Act. The court considered that there must be a point in which an article of film can be identified in which the visual images and sounds are embodied. It was found that the ephemeral embodiment of tiny fractions of the visual images and sounds that comprise a cinematograph film in RAM did not constitute making a copy under s.86(a).
What Constituted the Computer Program on the Discs?
A “computer program” is defined in the Act as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”. Warner argued that the result is the entire visual and audio experience that results from playing a DVD disc, and that the program consisted of the entire digital file stored on each disc. Yet the court felt that the particular result, for the purposes of the Act, was simply playing and navigating through a cinematograph film or motion picture. This involves simply converting the content on the disc for the user. Copyright protection for computer programs was considered not to be designed to extend to the original content that a computer program is capable of causing to be reproduced.
Essential Object of the Rental
The exclusive right to enter into a commercial rental arrangement in respect of a computer program does not extend to entry into an arrangement if the program is not the essential object of the rental, according to s.31(5). Once the court had reached the conclusion that the computer program was considerably less than the entire digital file stored on the disc, it had little difficulty in concluding that the essential object of the rental is not the computer program, but the video and audio content of the motion picture and other material embodied in the DVD disc.
Copying of Computer Programs
Copying of a substantial part of a computer program must involve reproduction of the program in a “material form”. To be reproduction material form it must be in a form of storage from which the computer program or a substantial part of it can be reproduced. It was considered that ordinarily it would not be possible to reproduce the contents of RAM in a DVD player, without modification. Therefore, it was considered that in the ordinary course temporary storage of a substantial part of the program in RAM will not involve a reproduction of the computer program in a material form. The court considered that the same also applied to a DVD disc played on a personal computer.
The decision is important, as it indicates that the court will take a practical approach when determining the limits of the rights afforded by the Act, particularly when more than one work or subject matter is afforded protection in a single article, such as a DVD or multimedia disc.