Federal Government releases draft amendment Bill to regulate copyright on the Internet

Federal Government releases draft amendment Bill to regulate copyright on the Internet

The Bill, the Copyright Amendment (Digital Agenda) Bill 1999, was released on 26 February 1999. The changes provided by the Bill deal with five main issues:

  1. a broadly defined exclusive right of communication to the public;
  2. exceptions to the right of communication to the public;
  3. prohibition of devices and services which circumvent copyright protection measures, and prohibition of tampering with rights management information;
  4. limitation of the liability of carriage service providers for infringements of copyright which occur utilising their communications infrastructure; and
  5. definitions of computer program and the exclusive rights which attach thereto.

The Bill, if passed, would implement in Australian law the World Intellectual Property Organisation (WIPO) Copyright Treaty 1996 (WCT) and some of the provisions of the WIPO Performances and Phonograms Treaty 1996 (WPPT), as well as many of the recommendations made by the Copyright Law Review Committee in its 1995 Report on Computer Software Protection. Currently the Government intends to introduce the Bill plus any amendments made in light of the submissions it received during the winter 1999 sittings of Parliament.

Exclusive right of communication to the public

The Bill introduces a new, broadly defined and technologically neutral exclusive right "to communicate the work [or other subject matter] to the public". This right replaces the current exclusive rights of broadcasting and of transmitting to subscribers to a diffusion service.

The new exclusive right will apply to all copyright subject matter currently protected under Parts III and IV of the Copyright Act, with the exception of published editions. It thus implements article 8 of the WCT (concerning works) and article 14 of the WPPT (concerning sound recordings). The new right does not extend to the rights in performances currently provided in Part XIA of the Act. This is because the Government is yet to decide whether to implement article 10 of the WPPT, which deals with performances fixed in sound recordings.

The Bill provides that "communicate" means "electronically transmit or make available online (whether over a path provided by a material substance or otherwise) sounds or visual images, or sounds and visual images, that are not capable of being heard or seen except by the use of reception equipment". The new right thus includes wireless broadcasting and cable transmission, as well as making available via a computer server connected to a public network such as the Internet.

A definition of "to the public" is included in the Bill, which provides that it means "to the public within or outside Australia". Accordingly, Australian copyright owners can control an act in Australia of electronic transmission or making available online of their copyright material that is directed to audiences in other countries.

Exceptions to the exclusive right of communication to the public

As a general rule, the Bill extends the current exceptions and limitations of copyright owners to the new right of communication. In particular, the exceptions permitting fair dealings with copyright material for the purposes of research or study, criticism or review, reporting the news, and giving professional legal advice will apply to the new right.

The Bill also extends to the new right of communication the exceptions currently provided for copying by libraries and archives, and for copying under the educational institutions statutory licence in Part VB of the Act. The Bill does not, however, similarly extend the specific exceptions currently permitted in relation to broadcasting copyright material – such as those permitting the making of ephemeral copies, the broadcasting of material to the print disabled, and the Part VA educational statutory licence.

The Bill introduces a new exception permitting the making of a "temporary" reproduction of copyright material "as part of the technical process of making a communication, or in the course of looking at material on a computer screen". The word "temporary" is not defined in the Bill. This provision is intended to permit the inevitable "caching" of material that occurs in two situations – during computer network transmission, and during electronic "browsing". It is noteworthy that the provision does not permit caching for the purpose of listening to music on a computer.

Exception for material in electronic form

Certain exceptions in the current Act permit the copying of not more than a "reasonable portion" of copyright material. Currently a "reasonable portion" is defined to include, in relation to a published edition of copyright material, 10% of the number of pages of the edition or one chapter of the edition (even if that is more than 10% of the pages). The Bill provides that a reasonable portion in relation to an electronic version of a published edition is 10% of the number of words in the electronic version. However, a reasonable portion of an electronic version can only fall within this provision if a "hard copy" version of the material has been published and that hard copy version is "not conveniently available" to the person making the copy.

Prohibition of copyright circumvention and RMI tampering

The WCT and the WPPT oblige member states to provide adequate legal protection and effective legal remedies against the "circumvention of effective technological measures" provided by copyright owners to prevent infringement of their rights. In the implementation of these obligations, the Bill provides civil and criminal sanctions against those who make, import or commercially deal in devices which circumvent technological copyright protection measures, and provides criminal sanctions against those who provide services to that effect.

The Bill defines a "circumvention device" and a "circumvention service" to be a device, or service, having only a limited commercially significant purpose other than the circumvention of an effective technological protection measure. A "technological protection measure" is defined as a device designed to prevent copyright infringement, and an "effective technological protection measure" is stated to be a technological protection measure which makes access to copyright material possible only by way of the use of a code or process with the authority of the copyright owner.

Making, importing or commercially dealing in a circumvention device, or providing a circumvention service, falls foul of the new provisions only if the maker, importer, dealer or service provider knew, or was reckless as to whether, the device or service would be used to circumvent an effective technological protection measure and for the purposes of infringing copyright. In relation to the civil prohibition of circumvention devices, a reverse onus of proof applies. Neither the civil nor criminal provisions apply to anything lawfully done for the purposes of law enforcement or national security, by the Commonwealth, a State or a Territory.

The Bill also provides criminal sanctions against a person who removes or alters any electronic rights management information attached to copyright subject matter, if that person knows, or is reckless as to whether, the removal or alteration will induce, enable, facilitate or conceal an infringement of copyright. Further, it is a criminal offence for a person to import or distribute for commercial purposes copyright subject matter in relation to which attached electronic rights management information has been removed or altered, if that person knows, or is reckless as to whether, rights management information has been removed or altered and that removal or alteration will induce, enable, facilitate or conceal an infringement of copyright.

The Bill defines "electronic rights management information" as information attached to copyright material that identifies (i) the material, and its author or copyright owner, and (ii) the terms and conditions on which the material may be used, or that use of the material is subject to terms or conditions.

Limitation of carriage service provider liability

The Bill makes two provisions for the limitation of liability for copyright infringement by a telecommunications carrier or a carriage service provider (eg an ISP). First, the Bill states that a television or sound broadcast, and a communication other than a broadcast, is taken to have been made "by the person responsible for determining the content" of the broadcast or communication. It follows that a service provider will not be directly liable for an infringement by broadcasting or communicating copyright material without the owner’s consent, unless the service provider actually determined the content of the broadcast or communication.

Under the current legislation, a person may be liable for a copyright infringement performed by another if the person is considered to have "authorised" the infringement. The Bill seeks to ensure that a service provider will not be found to have authorised another’s infringement merely because it provided the facilities by which the infringement took place. To this effect, the Bill provides that a telecommunications carrier or carriage service provider is not taken to have authorised any infringement "merely because he or she provides physical facilities used" by the infringer. Also, the Bill sets out a non-exclusive list of factors to be taken into account in determining whether a person has authorised an infringement – namely, the extent of the person’s power to prevent the infringement, the nature of the relationship between the person and the infringer, and whether the person took reasonable steps to prevent the infringement.

Computer program protection

The Bill simplifies the definition of "computer program" to "a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result". In so doing it removes the words "with or without related information" in the current definition. Thus the new definition focuses on instructions, leaving associated data outside the scope of subject matter protected as a computer program.

The Bill clarifies the acts which constitute the exercise of the exclusive rights of a copyright owner in a computer program. It deems the compilation of source code to object code, and the decompilation of object code to source code, to be reproductions of the computer program. The significance of deeming compilations and decompilations to be reproductions, rather than adaptations, is that the further act of making an adaptation of a compilation or a decompilation is also within the exclusive rights of the owner of copyright in the computer program, by virtue of section 31(1)(a)(vii) of the current legislation.

The duration of protection of a computer program that is unpublished at the time of the death of its author is reduced under the Bill. The protection is reduced from the current period of indefinite protection prior to publication, to the period of protection which applies to a published computer program – namely the life of the author plus fifty years.

The Bill introduces a number of exceptions to the rights of the owner of copyright in a computer program, but these appear to be largely superseded by provision in the later Copyright Amendment (Computer Programs) Bill 1999 referred to above.