The Australian Government introduced the Copyright Amendment Bill 2006 into parliament on 19 October 2006. The Bill proposes to introduce a new scheme for technological protection measures (TPM) to assist copyright owners to protect their works against piracy. The Bill is aimed at meeting Australia’s obligations under the Australia–United States Free Trade Agreement.
TPMs are devices, products and components (eg encryption and access codes) which prevent unauthorised access to copyright materials. TPMs have been used in the distribution of films and online music to protect against piracy.
The Copyright Act 1968 (Act) currently prohibits the manufacture and supply of devices or services which circumvent TPMs, but does not prevent the actual use of a circumvention device or service. The Act provides civil remedies for manufacturing and supplying circumvention devices but does not include any criminal penalties.
The Bill, if passed, will amend the Act to create new criminal offences and civil remedies for circumventing TPMs, and manufacturing and supplying circumvention devices. The Bill will also introduce exceptions for the new offences.
The Bill will make it a criminal offence to:
- engage in conduct which circumvents a TPM with the intention of obtaining a commercial advantage or profit, and
- manufacture, distribute or supply devices and/or services which may be used to circumvent a TPM with the intention of obtaining a commercial advantage or profit.
Criminal penalties include five years imprisonment and/or fines of $60,500.
Under the Bill, a court may grant a number of civil remedies, including:
- an injunction
- damages for an account of profits
- an order that the circumvention device be destroyed, and
- additional damages depending on the circumstances (eg the flagrancy of the defendant’s acts).
The Bill also introduces a number of exceptions to the prohibition on circumventing TPMs, including circumventing TPMs for the purpose of:
- determining whether one computer program operates with another computer program (interoperability)
- encryption research, computer security testing and online privacy
- law enforcement and national security, and
- non-profit libraries and educational institutions to perform their functions.
The amendments are not intended to cover TPMs which are designed solely to control market segmentation (eg regional coding in DVDs).
The government has also released a draft amendment to the Copyright Regulations 2006. The amendments allow for TPMs to be circumvented for the following reasons:
- to make interoperable computer programs
- to assist people with disabilities, and libraries, archives and cultural institutions
- include sound recordings in broadcasts
- if a TPM is obsolete, damaged or malfunctioning, damages a product or is necessary to repair a product.