Phillips Fox Report Out
Recommendation seventeen is choice:
That the definition of TPM in section 10 of the Act be amended so as to accord with the interpretation favoured by Sackville J in Stevens, at first instance.
That the permitted purposes in section 116A (3) be amended so as to clearly allow any supply or use of a circumvention device or service for any use or exception allowed under the Act, including fair dealing and access to a legitimately acquired non-pirated product.
That section 116A(1) be amended so as to prohibit the use, including commercial and personal use, of a circumvention device or service to circumvent a TPM, other than for a permitted purpose.
That section 135ANA be amended so as to prohibit the personal use of a broadcast decoding device other than for a permitted purpose, being the same permitted purposes listed in section 116A(3).
What the hell does that mean, I hear you ask. AIUI, the first paragraph says PlayStation 2 region coding isn’t a valid TPM, and thus that mod chipping isn’t circumventing a protection measure. ie, if you want to protect from copyright infringement, don’t make a tool that prevents parallel imports instead. The second paragraph means that supplying circumvention devices even ones that circumvent real protection measures is okay as long as you’re doing it to let people do sensible things — like watch DVDs they’ve bought. The third and fourth paragraphs increase the penalties if you’re pirating stuff.
Here’s another one: recommendation nineteen.
That the integrity of the permitted purposes in section 116A(3) be retained by preventing a copyright owner from making it a condition of access to or use of a copyright work or other subject matter that a user will not use a circumvention device or service for the purpose of making a fair dealing of the work or other subject matter.
That this amendment is made irrespective of whether the recommendation to include fair dealing as a permitted purpose is accepted. However, in those circumstances, a new subsection may need to be introduced in order to give effect to the recommendation.
It’s, like, the way laws should be made: consultation, and carefully balancing various interests.
Also of interest is recommendation fifteen, which suggests getting rid of the “communication” requirement in making transient copies of stuff — so that if you make a transient copy of a webpage while you’re trying to get it between your modem and screen that’s okay, even though you’re not communicating to anyone else. Recommendations thirteen and fourteen discuss a “limited subpoena process” for takedown notices that actually involves independent judicial bodies, rather than just hoping copyright onwers and ISPs do the right thing dealing with takedown notices. Other recommendations are interesting and sensible too, as are many of the things which are covered by “no change seems necessary or justified here”, such as the decompilation provisions.
Sweet.
Now let’s hope we can apply as many of these recommendations in the context of the FTA as we can.
Watch Kim Weatherall for further analysis.
UPDATE 2004/04/28:
Little sooner said than done: more analysis for your enjoyment. The conclusion bears repeating:
One more thing I’m thinking. My friend Peter Eckersley pointed out to me last night that getting depressed about aspects of the copyright law is not the only thing we can do. I think he’s right. Perhaps the reality (if it ends up being a reality) of a move to more protectionist, US-style laws means 2 key things for us into the future.
First, it means that we need to make a genuine, concerted effort to ensure that exceptions to copyright are broadened in Australia. To the extent that exceptions like US-style fair use are broader – or potentially broader – than Australian-style fair dealing, we need a shift. Soon. And we need to think about things like private copying. Because the possibility of lots and lots of Australians infringing copying all the time just makes no sense.
Second, it makes things like Creative Commons more important. Build alternative systems. That work.