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Australia’s High Court Delivers Some Copyright Lessons for Canada

The Australian High Court today delivered a landmark copyright decision involving "mod chips" and Sony PlayStations.  The case goes to the heart of anti-circumvention provisions that create very contentious proposals in Bill C-60 here in Canada.  At issue in the Australian case was whether mod-chips, used to modify the Sony PlayStation so that users could play games lawfully purchased outside the country, were themselves lawful.  The High Court reversed a lower court decision by finding against Sony, ruling that the mod-chips were not captured by Australia' s anti-circumvention laws in place at the time of the action.

There are several important things for Canadians to take away from the Australian decision (in addition to the court' s excellent decision to cite my colleague Ian Kerr' s work on TPMs).  

First, the court references WIPO implementation and (much like my column this week) states explicitly that "it will be apparent that the provision is expressed in broad terms, leaving considerable scope to individual States in deciding on the manner of implementation."  In other words, the U.S. model is not necessary in order to comply with the treaty.  Justice Kirby adds to this by acknowledging the Australian decision to avoid legislating protection for access controls, stating that "the preference inherent in the Australian Act has been viewed as one which 'favours the use of protected works', by limiting the operation of TPMs in terms of control over infringement of copyright rather than a potentially broader control over access. When the competing legislation of other jurisdictions, giving effect to the relevant international treaties, is contrasted, it appears clear that the distinctive statutory formula adopted in Australia was a deliberate one."

Second, the court provides a good illustration of why the Canadian decision to exclude devices from Bill C-60 is a good policy.  In discussing the definition of a device that would qualify as a technological protection measure, the court says that:

"in construing a definition which focuses on a device designed to prevent or inhibit the infringement of copyright, it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it. A defect in the construction rejected by Sackville J is that its effect is to extend the copyright monopoly by including within the definition not only technological protection measures which stop the infringement of copyright, but also devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful. One example of that conduct is playing in Australia a program lawfully acquired in the United States. It was common ground in the courts below and in argument in this Court that this act would not of itself have been an infringement."

Third, the court emphasizes the need to protect the rights of individuals and their personal property.  Justice Kirby states "ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual. The right of the individual to enjoy lawfully acquired private property (a CD ROM game or a PlayStation console purchased in another region of the world or possibly to make a backup copy of the CD ROM) would ordinarily be a right inherent in Australian law upon the acquisition of such a chattel."  This is an important statement that should resonate in Canada as Bill C-60 creates new limitations on rights associated with personal property, such as the right to make a personal copy of a store-bought CD that contains copy-control technology.

Fourth, the court raises constitutional concerns with copyright provisions that extend well-beyond traditional copyright norms. The court states that "to the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act."  These same concerns are echoed in a Canadian context by my colleague Jeremy deBeer in his piece in the In the Public Interest book.

Opponents of Bill C-60 have argued that Canada has proposed legislative reforms that are out-of-step with our trading partners.  This is simply wrong for many reasons.  Add the Australian High Court' s Sony decision to the list.

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