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Australia's High Court Delivers Some Copyright Lessons for Canada

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Thursday October 06, 2005
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.

Comments (5)add comment

peter said:

...
Can I at this time ( Oct 2005) ; legaly download music in Canada until the Canadian court renders a decision? If that future court decision makes downloading music illegal I would cease . If I follow that course would I be open to retroactive court prosecution....? FYI I am a senior and I retain all I download for my personal use.

thanks
October 06, 2005

Matthew Rimmer said:

The Genius of Basten QC
The result in Stevens v Sony may be explained in part by the brilliant, barnstorming performance of advocate Basten QC.

The Australian Digital Alliance - a peak body representing libraries, universities and educational institutions - intervened as an amicus curiae in the High Court proceedings. The Alliance raised concerns about TPMs having a detrimental impact upon access to information.

Basten QC supported a narrow definition of technological protection measures. He was concerned that devices could have multiple purposes:

"What I come back to saying is that the product which operates in this way must be designed with a specific purpose in mind, namely, to prevent or inhibit the infringement of copyright in a work. Now, what one obviously has, and particularly in a case like this where there are controls on regional access and so on, is that a particular measure may be designed for more than one purpose and it may operate in more than one situation. That was the discussion that was had before as to whether or not there is an overreach on the part of the manufacturer in adopting a measure which does not necessarily prevent only infringement of copyright but prevents or inhibits fair dealing with copyright material.

"At the end of the day I do not know that we can suggest a form of measure which would have the effect of preventing or inhibiting infringement which might not have other effects. It is difficult to envisage what the Parliament could have intended. One is left then with the question of whether the extent of the overreach in a particular situation suggests that it is designed for some other purpose than the prevention or inhibition of copyright. "

Basten QC expressed concerns that a broad definition of TPMs would undermine other features of copyright regime - in particular, the allowance of parallel importation of some copyright works, and the operation of the defence of fair dealing.

The High Court certainly responded in their judgments to such concerns about the impact of technological protection measures upon competition, access to information, and fundamental freedoms.

Little wonder Basten QC has since been made a judge of the Supreme Court of New South Wales. He has certainly had a remarkable career. Have a read of his swearing in ceremony: http://www.lawlink.nsw.gov.au/...sten_20505
October 06, 2005

a guest said:

...
doesn't the "grandfather clause" protect you from retro-active prosecution?
October 06, 2005

peter said:

...
Thanks for reply--Hmmmm as me being a senior?? "GF protection "thats great humor-I assume you meant it as such, BUT, knowing that ignorance of the law is no defence I wondered about the retro bit..I think that since this instance is an appeal requested by the Recording industry , if ruled illegal can they not prosecute those who they did at first?
I guess my question is this - if an appeal is won in Canadian law at what date does the new ruling ( interpretation) take effect?

thus my query remains... is it legal till the court says it is not and if so ruled what will be the date of effectiveness?
October 17, 2005

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March 12, 2014

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