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30 October 2006 Committee Secretary Senate Legal and Constitutional Affairs Committee Department of the Senate PO Box 6100 Parliament House Canberra ACT 2600 Email: legcon.sen@aph.gov.au Dear Sir/Madam Inquiry into the Copyright Amendment Bill 2006 We enclose herewith submission from Electronic Frontiers Australia Inc. to the Committee's inquiry. Enquiries or questions related to the attached submission may be directed to the Convenor of EFA's Intellectual Property Committee, Mr Dale Clappert
  30 October 2006Committee SecretarySenate Legal and Constitutional Affairs CommitteeDepartment of the SenatePO Box 6100Parliament HouseCanberra ACT 2600Email: legcon.sen@aph.gov.auDear Sir/Madam Inquiry into the Copyright Amendment Bill 2006 We enclose herewith submission from Electronic Frontiers Australia Inc. to the Committee'sinquiry.Enquiries or questions related to the attached submission may be directed to the Convenor of EFA'sIntellectual Property Committee, Mr Dale Clapperton.Yours faithfullyIrene GrahamExecutive DirectorElectronic Frontiers Australia Inc.Encl: Submission in RTF format.  Electronic Frontiers Australia Submission to the Senate StandingCommittee on Legal and Constitutional Affairs Inquiry into the Provisionsof the Copyright Amendment Bill 2006   About EFA Electronic Frontiers Australia Inc (EFA) is a non-profit national organisationconcerned with the protection and promotion of the civil liberties of users ofcomputer based communications systems and of those affected by their use.EFA was established in 1994, is independent of government and commerce, andis funded by membership subscriptions and donations from individuals andorganisations with an altruistic interest in promoting civil liberties.Intellectual property issues have increasingly become the concern of computerand Internet users, and developers of related technologies. EFA members andsupporters come from all parts of Australia and from diverse backgrounds. Theyhave a common interest in ensuring that copyright law, particularly as it applies inthe digital environment, provides an appropriate balance between ensuringprotection for copyright developers and freedom for copyright users and otherdevelopers. Introduction EFA believes that copyright law is and should be for the purpose of promotingcreativity, innovation and development. The traditional means for achieving thatend has been the granting of economic incentives through copyright ownership. Itshould be borne in mind that the making and enforcement of law are not ends inthemselves 1  and that rights granted under copyright law should be treated as means  and not as ends  .The provisions of the Copyright Amendment Bill 2006  (the Bill) continue theunfortunate modern trend of treating rights under copyright as ends rather thanmeans. This submission seeks to articulate our major concerns about the Bill,but due to the very short timeframe available to prepare this submission, andother demands upon the time of EFA’s volunteer board members, should not betaken as an exhaustive statement of our concerns.We have had the advantage of reading the submission of Mr Dale Clappertonand Professor Stephen Corones from Queensland University of Technology (the‘Clapperton/Corones submission’) in draft form, and we endorse the issuesraised and recommendations made by that submission. 2   1 Mason P, speaking extra-judicially at the 3rd Annual Conference of the Association forCompliance Professionals of Australia Inc, 23 September 1999:<http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/sp_230999> 2 Mr Clapperton is a board member of EFA and contributed to the production of this submission.Page 1 of 7  We have also had the advantage of reading the thoughts of Ms KimberleeWeatherall as expressed in her blog. 3 While we do not concur with herassessment of the Bill in every respect, we concur with and endorse her views onthe criminal liability provisions of the Bill, 4  and on the changes to fair dealing forresearch or study. 5 Last but by no means least; we endorse the issues raised by Professor BrianFitzgerald in his online opinion piece. 6 Stevens v Sony    A useful starting point in any discussion of anti-circumvention laws in theAustralian context is the decision of the High Court of Australia in the case of Stevens v Sony. 7  Delivered in 2005, this decision was in part a warning of thepotential effects of giving the protection of anti-circumvention laws to deviceswhich control access to copyrighted works, instead of devices which preventinfringing copying of those works.In his judgment, Kirby J discussed one effect of the purported TPM: By their line the Popes of old divided the world into two spheres of influence.Sony, it appears, has divided the world (for the moment) into at least threespheres or markets. By the combined operation of the CD ROM access code andthe boot ROM in the PlayStation consoles, Sony sought to impose restrictions onthe ordinary rights of owners, respectively of the CD ROMS and consoles,beyond those relevant to any copyright infringement as such. In effect, andapparently intentionally, those restrictions reduce global market competition.They inhibit rights ordinarily acquired by Australian owners of chattels to use andadapt the same, once acquired, to their advantage and for their use as they seefit. Kirby J went on to discuss the effect of giving anti-circumvention protection totechnologies which control access to copyright material: If the definition of TPM were to be read expansively, so as to include devicesdesigned to prevent access to material, with no inherent or necessary link to theprevention or inhibition of infringement of copyright, this would expand the ambitof the definition beyond that naturally indicated by the text of s 10(1) of theCopyright Act. It could interfere with the fair dealing provisions in Div 3 of Pt III ofthe Copyright Act and thereby alter the balance struck by the law in this country. 3 http://weatherall.blogspot.com 4 http://weatherall.blogspot.com/2006_10_01_weatherall_archive.html#116099974198599060 5 http://weatherall.blogspot.com/2006_10_01_weatherall_archive.html#116160341318821312 6 http://www.onlineopinion.com.au/view.asp?article=5068 7 [2005] HCA 58.Page 2 of 7  [Protecting access controls] would enable rights holders effectively to opt out ofthe fair dealing scheme of the Act. This would have the potential consequence ofrestricting access to a broad range of material and of impeding lawful dealings aspermitted by Div 3 of Pt III of the Copyright Act. The inevitable result would bethe substitution of contractual obligations inter partes for the provisions containedin the Copyright Act — the relevant public law. Potentially, this could haveserious consequences for the operation of the fair dealing provisions of that Act. Notwithstanding these warnings, the Australia-United States Free TradeAgreement (FTA) obligates Australia to extend legal protection to devices whichcontrol access to copyright material. 8  The critical question is how far that protection must go. Changes to the anti-circumvention provisions from the exposure draft The legislation which would implement Australia’s anti-circumvention obligationsunder the FTA was first publicly released as an exposure draft of the Copyright Amendment (Technological Protection Measures) Bill 2006  (the ‘exposure draft’)by the Attorney-General’s Department on 4 September 2006. Similar provisionsform Schedule 12 of the Bill.The Attorney-General, in his second reading speech on the Bill, stated: Exposure drafts of most of the amendments were made available to the publicfrom my department’s website prior to introduction of the bill to give interestedparties the opportunity to consider them and prepare any comments forsubmission to the Senate committee. I look forward to the committee’s report. What the Attorney-General failed to say is the provisions within Schedule 12 hadundergone serious and fundamental changes from what was contained in theexposure draft. These changes were unannounced, unexplained, and only cameto light after doing a side-by-side comparison of the provisions of Schedule 12with the provisions of the exposure draft.Any comments on the anti-circumvention provisions which were made to theAttorney-General’s Department, or prepared for the Committee, on the basis ofthe exposure draft would be largely invalidated by these changes. Interestedparties instead had a mere 7 business days to prepare submissions to theCommittee on the radically different provisions within Schedule 12. 8 EFA opposed these provisions of the FTA at the time, and remains opposed to them. Seegenerally our submission to the Joint Standing Committee on Treaties(http://www.aph.gov.au/house/committee/jsct/usafta/subs/SUB50.pdf) and our submission to theSenate Select Committee on the FTA(http://www.aph.gov.au/senate/committee/freetrade_ctte/submissions/sub282.pdf).Page 3 of 7
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