While Canada is still weeks or months from new legislation (hence the 30 Days of DRM project), Australia's Attorney General has just released draft anti-circumvention legislation. Australia faces different circumstances from Canada since its free trade agreement with the U.S. requires new laws by the end of the year. The released draft includes a significant number of exceptions – a direct link to copyright (therefore no protection for region coding or anti-competitive uses), privacy, encryption research, security testing, computer program interoperability, library acquisitions, law enforcement, obsolete TPMs, product repair, and persons with disabilities. Moreover, the A.G. is consulting this month on several additional exceptions. Legislation is expected in mid-October.
Australia A.G. Releases Draft TPM Legislation
Tags: anti-circumvention / australia / copyright / privacy / securityCopyright Microsite - Digital Rights ManagementCopyright Microsite - Canadian Copyright / tpm
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I have written a short outline of the Exposure Draft. It is availble from Groklaw – [ link ]
ANU College of Law
I really despair about the legislative drafting of the TPM regime in the exposure draft.
10 Federal Court and High Court judges struggled to divine the meaning of TPMs under the old Digital Agenda Act.
The new regime proposed as a response to the Australia-United States Free Trade Agreement will add to the opacity, the complexity, and the mystification of TPMs.
One of the very peculiar aspects of the draft legislation is that half of the exceptions are contained in the legislation, and the other half have been hived off to future copyright regulations.
The Government has said that it hopes to respond to dynamic changes in technology and the marketplace through having such exceptions in the copyright regulations.
I have three criticisms to this approach.
First, the Government is perhaps over-reaching its powers, by trying to do substantive things – such as create exceptions to TPMs – in the regulations. The validity of the regulations would be open to challenge in any litigation.
Second, the dualistic approach to exceptions is hardly going to make it any easier for copyright owners and users to understand the complex TPM system.
Third, the Government will be able to chop and change the exceptions in the regulations, much more easily than it would if it were in the legislation. Such a process is obviously more vulnerable to lobbying.