09 Copyright v2 No Highlight

Cyberspace Law materials Copyright
1. Copyright Overview..........................................................................................2
1.1. Copyright in Australia 2
1.2. Copyright and the Internet 2
1.3. Existence of copyright 3
1.4. Term of protection 3
1.5. Exceptions to Copyright 4
1.5.1. Fair dealing 4
1.5.2. Educational institutions and libraries 4
1.5.3. Technical processes and temporary copies 5
1.5.4. Computer software 5
1.. Copyright infringement 5
1.!. "enalties 5
1.#. $eneral comments
2. Licensing of Copyright.....................................................................................6
2.1.1. Background 6
2.1.2. You and Facebook 7
3. Test for ISP Liability.........................................................................................
!. "oral #ights......................................................................................................$
4.1.1. Background 9
4.1.2. Indigenous Australians and Copyright Law 10
%. Copyright &'en('ent )*igital &gen(a+ &ct 2,,, )Cth+............................12
6. &nti-circ.'vention in &.stralia....................................................................13
.1. Case %tudy& %ony Computer Entertainment ' %te'ens 14
/. &nti-Circ.'vention in the 0nite( States......................................................1%
!.1. Case %tudy& (nited %tates ' Elcomsoft 1
7.1.1. Background 16
7.1.2. Arguments at trial 16
7.1.3. The decision 17
. Protection of Co'p.ter Progra's................................................................1
#.1. Copyright Amendment )"arallel Importation* Act 2++3 1#
$. Protection of Online *atabases......................................................................1$
,.1. %atisfying -.riginality/ 1,
,.2. 0imitations associated 1ith -online/ data2ases 2+
1,. The International #egi'e...............................................................................2,
1+.1. European (nion 3irecti'es 21
11. Case St.(y1 2apster........................................................................................22
File: /var/www/apps/conversion/tmp/scratch_3/238656322.doc Date: 13 September, 2011
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File: /var/www/apps/conversion/tmp/scratch_3/238656322.doc Revision: 2 Date: 13 September, 2011
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1. Copyright Overview
Copyright protects authors and creators from unauthorised reproduction or adaptation of
original creations such as books, computer programs, scripts, paintings, sculptures,
drawings, photographs, music, film, video, broadcasts and the choreography of a
performance. The copyright owner has the exclusive right to copy, publish, perform,
broadcast, adapt (for example, a screenplay from a novel, sell, license or import
copyright protected creations. Copyright is a type of intellectual property as it protects
the creative and inventive endeavours.
!ome useful links that contain general information about copyright protection include"
#ustralian Copyright Council$s %nformation !heet An introduction to Copyright

in Australia &http"''www.copyright.org.au'()*'%nfo!heets'+,1,.pdf- and
.orld %ntellectual (roperty /rganisation$s 4asic 5otions of Copyright and
6elated 6ights &
http"''www.wipo.org'copyright'en'activities'pdf'basic0notions.pdf.
1.1. Copyright in Australia
%n #ustralia copyright is chiefly protected by the Copyright Act 1123 (Cth
(http"''www.austlii.edu.au'au'legis'cth'consol0act'ca1123144' and its various
amendments.
%n 2,,, the #ct was amended by the Copyright Amendment )3igital Agenda* Act 2,,,
(http"''www.austlii.edu.au'au'legis'cth'consol0act'caaa2,,,215' which extended
copyright protection to the full range of digital media.
/ther relevant legislation includes"
Copyright Amendment )"arallel Importation* Act 2,,4 (Cth
(http"''www.austlii.edu.au'au'legis'cth'num0act'caia2,,4521'
(% 7ree Trade Agreement Implementation Act 2,,5 (Cth (6(%7TAI Act/
(http"''www.austlii.edu.au'au'legis'cth'consol0act'uftaia2,,5424'
Copyright 0egislation Amendment #ct 2,,5 (Cth
(http"''www.austlii.edu.au'au'legis'cth'num0act'claa2,,5427'
#ustralia$s #8!*T# obligations in relations in relation to the circumvention of
technological protection measures have also been addressed by the Copyright
Amendment Act 2++ (Cth
(http"''www.austlii.edu.au'au'legis'cth'num0act'caa2,,2214'.
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1.2. Copyright and the Internet
%n the %nternet context"
typical web site content will generally constitute a number of different copyright
works in the form of original literature (including computer programs, dramatic,
musical, artistic works, sound recordings, films, broadcasts, cable programs and
adaptations of the above (including compilations-
a copyright owner en9oys an exclusive right to reproduce or to authorise another
to reproduce, their work on to or from a website-
a copyright owner en9oys an exclusive right of communication to the public in
relation to literary, dramatic, musical, and artistic works and sound recordings,
films and broadcasts (s 41(1(a(iv Copyright Act. The right protects copyright
material that is made available online or transmitted electronically (eg uploading
of copyright material onto a server connected to the %nternet. The right only
covers communication in the electronic domain and does not create an exclusive
right of communication in the tangible print environment- and
copyright is unlikely to exist in a 8:; (see <xxon Corp v <xxon %nsurance ;td
=1132> 1 Ch 111 where it was held that a single invented word e.g 6<xxon$ could
not be sub9ect to copyright, applying this to domain names it is unlikely a court
will find copyright exists in a domain name. %n any case, this does not matter as
there are other ways of protecting 8:;s & see )omain names (art 2 & )isputes
of the these course notes.
*or further reading see the #ustralian Copyright Council$s Internet& copying and
do1nloading %nformation !heet & http"''www.copyright.org.au'g,72.pdf.
1.3. Existence of copyright
Copyright comes into existence automatically in relation to an original creation in
#ustralia or in a country whose nationals are entitled to copyright protection in
#ustralia. Copyright in unpublished works does not begin to run until they are
published.
?o registration of copyright is re@uired, protection is automatic. There is no register to
search to ascertain if material is copyright protected.
1.4. er! of protection
!ub9ect to exceptions, protection generally runs for the life of the author plus 7, years
from the year of the author$s death or 7, years from the year of first publication (s 44
Copyright Act, see also ss 14, 15. # published edition of a book is protected for only 27
years after first publication of the edition (s 12. /nce copyright expires, the material
enters the public domain and can be freely used by others.
5
The period of copyright protection has been extended to A, years in the <uropean 8nion
and the 8B (<uropean 8nion )irective on 8armonising the Term of Copyright
"rotection, as well as the 8! (%onny 4ono Copyright Term Extension Act.
=see p17A of *itCgerald et al, Internet and E9Commerce 0a1>
<xtensive amendments were made by the (% 7ree Trade Agreement Implementation
Act 2++4 (8!*T#% #ct and the Copyright 0egislation Amendment Act 2++4, both of
which entered into force on 1 Danuary 2,,7, giving effect in large part to #ustralia$s
obligations under the #ustraliaE8nited !tates *ree Trade #greement (#8!*T#. #mong
the changes introduced by the 8!*T#% #ct were"
(i an extension of the 7,Eyear period of protection to A, years,
(ii an expansion of the protection given to performers,
(iii enhancement of the scope of protection for electronic rights management
information,
(iv new criminal offences for commercial and significant infringements of
copyright, and
(v limits on liability of carriage service providers.
The 8!*T#% #ct extended moral rights to performers of live and recorded
performances, which entered into force in #pril 2,,A when #ustralia acceded to the
.%(/ "erformances and "honograms Treaty 1,,.

1.". Exceptions to Copyright
1.5.1. Fair dealing
The use of copyright material for the purpose of research or study, criticism or review,
reporting of news and professional advice given by a legal practitioner or patent
attorney generally does not constitute an infringement of copyright. :ules are provided
to determine what is fair dealing in respect of the research and study and the newly
created right of communication to the public (ss 5,E54,1,4#EC Copyright Act.
1.5.2. Educational institutions and libraries
<ducational institutions and libraries may digitise printed material and reproduce and
communicate a reasonable proportion of digital material for the same purposes as
permitted in the printed environment (see (art FG Copyright Act. # reasonable
proportion of a published literary work (excluding a computer program (s 147H< or
electronic compilation such as a database or a published dramatic work in electronic
form is 1,I of the words in the work or, if divided into chapters, one chapter.
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1.5.3. Technical processes and temporary copies
Temporary reproduction of a work that occurs as part of a technical process of making
or receiving an electronic communication is not an infringement of copyright provided
the making of the communication is not an infringement of copyright. This exception
covers browsing and certain types of caching (for example, by a software browser on a
user$s (C (ss 54# and 111# Copyright Act. %t is unclear whether this exception applies
to hypertext linking, framing, or caching by a proxy server. :emedies in relation to
hypertext linking and framing may be available under trade practices legislation.
1.5.4. Computer software
Copies of computer software made in the normal course of running the program, for the
purposes of developing interoperable products, security testing, error correction and
making backEup copies do not infringe copyright (ss 5AGE5A*.
1.#. Copyright infringe!ent
<lectronic digital technology employed by the %nternet facilitates unauthorised access,
duplication, storage, transmission and concealing of copyright works. (rotected work or
material may be scanned into a file server connected to the %nternet, uploaded onto the
%nternet via a network, downloaded into a hard drive, sent by email or printed to hard
copy. Copyright infringement (of the exclusive right to reproduce, adapt or
communicate to the public will occur in each case if the work or material is an original
work and a substantial part is reproduced without authority (see s 42 which deals with
copyright infringement generally, s 42(1 provides that copyright is infringed if an act is
undertaken that is inconsistent with the terms of the copyright.
%nfringement will not occur if"
the unauthorised use of the work fits within the above exceptions- or
a license from the copyright owner can be implied in the circumstances.
# substantial part (defined as a @ualitative and not @uantitative measure of any
copyright work must be reproduced to infringe copyright (Autodes: ' 3yason (1114
1A2 C;: 4,, E http"''www.austlii.edu.au'au'cases'cth'high0ct'1A4clr44,.html.
1.$. %enalties
Copyright owners are entitled to civil remedies for copyright infringement, such as an
in9unction, damages (including aggravated or exemplary damages and an account of
profits (s 117 Copyright Act. Criminal sanctions may also apply to"
the manufacture or possession for purposes of sale and distribution of infringing
works-
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tampering with electronic :ights Janagement %nformation (:J% (information
attached to or embodied in digital material that identifies the material, its author
or the copyright owner, or any terms of use or dealing in material whose :J%
has been tampered with- and
the manufacture and dealing in circumvention devices (devices which
circumvent technological measures employed by copyright owners to protect
their material for a purpose that is not a permitted purpose (s 142.
1.&. 'eneral co!!ents
# copyright owner does not control the medium in which the idea is expressed, for
example, a person may freely buy then sell the same book, but they cannot copy the
contents of the entire book without copyright permission.
%f an employee creates an original work for an employer, then as a general principle
(sub9ect to exceptions the employer owns the copyright in the work created.
+enerally, if a person commissions a person other than an employee to create an
original work, the person does not own that work unless the creator formally assigns
their copyright to the person. The assignment must be in writing and signed by or on
behalf of the creator.
Copyright ownership may be 9oint (a work produced by two or more authors or divided
(eg unless otherwise assigned, a newspaper has copyright ownership of work created by
a 9ournalist and published in the newspaper, but the 9ournalist retains copyright
ownership with respect to publication of the material in a book or film.
2. (icensing of Copyright
2.1.1. ac!ground
*or most material used on the %nternet, permission to digitise is unlikely to have been
obtained or included in any license agreement covering that material. /wnership of the
copyright in the material may be unclear, as physical ownership of a work does not
automatically confer copyright ownership. # person accessing that material on the
%nternet must recognise when permission from the copyright owner is re@uired and
when a license to exercise the copyright should not be implied.
# copyright owner who places material on the %nternet without notifying the user of any
:J% or use restrictions is likely to be giving an implied license to the user to download
or print the material.
A
# website provider may license to third parties any software used in its website where it
has the right to license such software. This may occur for example where the website
provider or an employee in the course of employment developed the software, or the
relevant software development contract confers the right to license or subElicense the
use of the software to third parties.
2.1.2. "ou and Faceboo!
*acebook is a networking website which has over 25 million active users worldwide. %t
is also the most popular website for uploading photos, with 15 million photos uploaded
daily. )ue to the websiteKs popularity, *acebook has met with much criticism and
controversy, especially with regards to privacy concerns. )iscussed below are some
contentious provisions that appear on the website$s Terms of 8se.
3aceboo4 has .nli'ite( (iscretion
;e reser'e the right< at our sole discretion< to change< modify< add< or delete
portions of these Terms of (se at any time 1ithout further notice.
Gy creating an account with *acebook, users will be bound by the rules of the
website, which can change at any time without notice. Gy continuing to operate
an account, one is deemed to be in acceptance of these rules whether or not they
are aware it has changed.
3aceboo4 has the power to (o whatever it wishes with .ploa(e( content
4y posting (ser Content= you automatically grant=to the Company an
irre'oca2le< perpetual< non9exclusi'e< transfera2le< fully paid< 1orld1ide license
)1ith the right to su2license* to use< copy< pu2licly perform< pu2licly display<
reformat< translate< excerpt= and distri2ute such (ser Content for any purpose
on or in connection 1ith the %ite or the promotion thereof< to prepare deri'ati'e
1or:s of< or incorporate into other 1or:s< such (ser Content< and to grant and
authori>e su2licenses of the foregoing.
#nother controversial provision is the following"
All content on the %ite=are the proprietary property of the Company< its users
or its licensors 1ith all rights reser'ed. 5o %ite Content may 2e modified<
copied< distri2uted< framed< reproduced< repu2lished< do1nloaded< displayed<
posted< transmitted< or sold in any form or 2y any means=1ithout the
Company?s prior 1ritten permission< except that the foregoing does not apply to
your o1n (ser Content )as defined 2elo1* that you legally post on the %ite=Any
use of the %ite or the %ite Content other than as specifically authori>ed herein<
1ithout the prior 1ritten permission of Company< is strictly prohi2ited and 1ill
terminate the license granted herein.
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<ffectively, once content is uploaded on *acebook, they are given copyright over
the uploaded material. *or example, it may be possible for *acebook to sell its
members$ uploaded photos and text without any of these funds benefiting the
member who uploaded it. *urthermore, there may be restrictions on the user$s
ability to engage in fair dealing (or fair use, or any other exception to copyright.
)oing so may mean that whatever limited licence they have granted the user to
use the content of the site will terminate. .hether this is enforceable in
#ustralia is still uncertain.
3aceboo4 is not responsible for har' ca.se( by e5ternal applications
@;Ahile 1e ha'e underta:en contractual and technical steps to restrict possi2le
misuse of such information 2y such "latform 3e'elopers< 1e do not screen or
appro'e 3e'elopers< and 1e cannot and do not guarantee that all "latform
3e'elopers 1ill a2ide 2y such restrictions and agreements. *acebook users have
the option of adding numerous external applications onto their profile (for
example, @uiCCes, games, etc.
Lowever, *acebook takes no responsibility for any harm cause by these
applications, or if the external applications were written with a purpose to obtain
the information of *acebook users for misuse.
Privacy is not g.arantee( by 3aceboo4
@;Ae cannot and do not guarantee that (ser Content you post on the %ite 1ill
not 2e 'ie1ed 2y unauthori>ed persons. ;e are not responsi2le for
circum'ention of any pri'acy settings or security measures contained on the
%ite.
%f, for example, *acebook is hacked and a user$s information is misused, there
may be a remedy against the hacker but not *acebook. *urthermore, there is
scope for *acebook$s thirdEparty contractors to misuse a member$s information.
3. est for I)% (ia*ility
#n %!( is not taken to have authorised any infringement of copyright in a work merely
because it provides facilities used by a person to do something the right to which is
included in the copyright.
# %!( will be liable only if it authorises a copyright infringement, which is determined
according to"
the extent (if any of the %!($s power to prevent the doing of the act concerned-
the nature of the relationship between the %!( and the infringer- and
whether the %!( took reasonable steps to prevent or avoid the infringement.
1
+iven that %!(s have little or no control over most copyright material not directly
hosted on their servers (that is, material to which they merely provide %nternet
connectivity and no relationship with a person who places material on such sites, their
liability is correspondingly limited. %!(s have greater control over websites on their
own servers and will need to consider taking reasonable steps to avoid authorisation
liability in respect of such websites (ss 41G as amended by the Copyright Amendment
)3igital Agenda* Act 2,,, (Cth, and s 112C.
The 4roadcasting %er'ices Act 1,,2 (Cth, !chedule 7, clause 12 allows an avenue for
an %!( to obtain merits review at the ##T. #n %!( can seek review on the decisions of
#CJ# to give an %!( accessEprevention notices (standard and special & see cl 12(1(e
and cl 12(1(f.
Clause 12(g allows the ##T to give, vary or revoke a decision that applies to an %!(.
*urthermore, an application may be made to the ##T for a review of a decision of the
#CJ# to refuse to register a code.
3.1.1. #oadshow $ ii%et & '() liability for authorisation infringement
6oadsho1 7ilms "ty 0td ' ii5et 0td )5o 3* =2,1,> *C# 25- (2,1, 224 #;: 217-
(2,1, 34 %(: 54, http"''www.austlii.edu.au'au'cases'cth'*C#'2,1,'25.html, ;awCite"
http"''www.austlii.edu.au'cgiEbin';awCiteMcitN=2,1,>I2,*C#I2,25, Computerworld
tag" http"''www.computerworld.com.au'tag'#*#CTI2,vI2,ii?et decided in the
*ederal Court of #ustralia on 5th *ebruary 2,1,, resulted in the %!( (ii?et successfully
defending itself from the claims of a broad array of movie industry plaintiffs (organised
by #*#CT that it should be responsible for 6authorisation infringement$ of its users.
This is part of a long running attempt to force %!(s to cease claiming the benefits of
common carrier status and in effect accept that they become coEoffenders.
#n appeal to the *ull Gench of the *ederal Court was heard on 5 #ugust 2,1,,
:oadshow *ilms (ty ;td v ii?et ;td (?o 2 =2,11> *C#*C 32,
http"''www.austlii.edu.au'cgiEbin';awCiteMcitN=2,11>I2,*C#*CI2,32, affirming the
result but limiting the reasoning, and leaving open the door for movie industry to claim
that they would succeed if they ran a similar case again taking the limits into account.
:esult will be appealed again to the Ligh Court.
1,
4. +oral ,ights
4.1.1. ac!ground
Joral rights are rights relating to a creator$s reputation and creativity associated with
his or her work. They are separate from the economic rights such as the right to
reproduce work. They apply to authors of material on websites whose work is copyright
protected under the Copyright Act.
Joral rights protected by the Copyright Amendment )Boral 6ights* Act 2,,,
(http"''www.austlii.edu.au'au'legis'cth'num0act'cara2,,,452' include"
the right of attribution of authorship (s 114 Copyright Act-
the right not to have authorship falsely attributed (s 114#C- and
the right of integrity of authorship (s 114#%.
They only apply to individuals (s 11,, are not transferable (s 117#? and exist for the
same period as the copyright of the published material itself (s 117#J. #s moral rights
belong to the individual author or creator, only they have standing to sue if a moral right
is breached, where as if an economic right is breached the publisher of the material will
also have standing.
# moral right of an author could be infringed by"
not attributing a creator, in whole or in a way that is not a 6reasonable form of
identification$ (s 117 that is 6clear and reasonably prominent$ (s 117#G-
falsely attributing the work to someone other than the creator-
treating work in a derogatory way (s 117 #%, that is materially distorting,
mutilating or altering the work in such a way that it is pre9udicial to the authorKs
reputation (s 117#D- and
a dealing with a work that that has been sub9ect to derogatory treatment such as
reproducing the work (s 117 #%.
Jore information about moral rights can be obtained from the #ustralian Copyright
Council$s Joral :ights %nformation !heet at http"''www.copyright.org.au'+,54.pdf
4.1.2. 'ndigenous *ustralians and Copyright +aw
p.221 (*itCgerald et al
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%ndigenous people have the right to intellectual property over their cultural heritage.
This has been ecognised by #rticle 41 of the 8? Luman :ights Council$s 3eclaration
on the 6ights of Indigenous "eople
(http"''www.hreoc.gov.au'!ocial0Dustice'declaration'assembly.html.
%ndigenous peoples are increasingly using the internet and digital technologies to further
interpret and promote their cultural existence. #s appreciation has grown of the
#ustralian #boriginal culture and heritage, a substantial market has developed for goods
that embody expressions of it, particularly in the form of music recordings and visual
artworks, and websites offering such products have proliferated.
Lowever, the laws conferred by copyright law do not correspond to the interests of
indigenous cultural heritage recognised under traditional law and custom. This can
mainly be attributed to the differences between western and indigenous notions of the
value, significance and ownership of cultural heritage recognised under traditional law
and customs. *irstly, indigenous beliefs about the relationship between creative works
and the land, culture, religion and spiritiuality are not reflected in the copyright law.
Copyright law focuses on the economic interests and private property rights of
individual creators. %t does not encompass the communal interests of #boriginal
communities to control access to, or reproduction of, for example artworks and songs
regarded as sacred under customary law. #lso, indigenous cultural expressions are
largely oral or performanceEbased. #s such, they are usually not captured or recorded in
a recognised format such as a video or audio recording, which is a re@uirement for the
enforcement of western copyright law. %f these cultural expressions are recorded then
they will attract the application of copyright laws.
%? 4ulun ' 6 C T Textiles "ty 0td, von )oussa D held that the only copyright interests
that exist are those covered in s3 of the Copyright #ct 1123 (Cth. Communal interests
in a work exists only to the extent that it is a work of 69oint ownership$. #lthough the
entire community may be an interest in the work, cioyright will not recognise the entire
group as copyright owners unless the work has in rfact been produced by the members
of the group that worked collaboratively as 9oint authors. <@uity may be a more
effective remedy to rely upon, particularly the fiduciary duty doctrines. %n this case, the
artist owed a fiduciary duty to the tradiontal owners, where the latter permitted the artist
to use the ritual knowledge of the +analbingu people for portrayal in an artistic work.
This work was sub9ect to the condition that it had to comply with +analbingu law and
custom. They had effectively placed their trust and confidence in the artist who was
legally the copyright holder. The artist was permitted to sell the artwork but he was not
permitted to shirk his overriding fiduciary obligation not to act contrary to the
customary laws mentioned above. Lis Lonour also stressed that the +enalbinu people
did not have an e@uitable interest in the ownership of copyright in the artistic work,
notwithstanding the existence of the fiduciary obligation owed by the artist towards
them.
The full text of this case can be found on"
(http"''www.austlii.edu.au'au'9ournals'#%;:'1113'41.html. # case note is available on"
(http"''austlii.org'au'9ournals'%;G'1113'3A.html.
12
!ee
p2A4 (*itCgerald
The *ederal government had drafted a Copyright #mendment (%ndigenous Communal
Joral :ights Gill but this bill has not been enacted into legislation. %ts stated purpose
was to give indigenous communities moral rights over their creative works. These laws
have been considered too complex and unworkable and have been sub9ect to criticism.
*or example, see"
(http"''www.austlii.edu.au'au'9ournals'%;G'2,,5'17.html and
(http"''www.artslaw.com.au'0documents'files'#rts;aw%CJ:)raftGill!ub.pdf.
". Copyright A!end!ent -.igital Agenda/ Act 2000 -Cth/
The Copyright Amendment )3igital Agenda* Act 2,,,
(http"''scaletext.law.gov.au'html'comact'1,'2224'top.htm (C#)# came into force on
5 Jarch 2,,1 and updates the law to ensure copyright extends to a full range of new
media. %ts purpose among other things is to ensure the efficient operation of relevant
industries in the online environment- provide reasonable access and certainty for end
users of copyright material online- ensure that cultural and educational institutions can
access copyright material online on reasonable terms (s 4 C#)#. (!ee also section 2
which looks at the antEcircumvention provisions of C#)#.
+iven the fairly significant changes created by the C#)#, the +overnment has
announced that it will review the legislation within three years of commencement.
Ja9or reforms imposed by the amendments include"
The new right of co''.nication to the p.blic 6 This is the most significant
change and allows owners to control how their work is electronically transmitted
and made available online. %t is technology neutral and applies to literary,
musical, artistic and dramatic work, as well as film and broadcast material
available online. %t also affords copyright protection to these types of online
materials.
14
75ception to the owners right to co''.nication 6 +enerally most of the
existing exceptions were extended to the digital environment, including fair
dealing and the copying of 1,I of an electronic text for research or study.
<xceptions for libraries and archives has been broadened, including allowing the
copy and electronic transmission of a work provided it has been re@uested by a
user for research or study purposes and is not otherwise reasonably available-
and making material available to the public in electronic form on a computer on
the institution$s premises that does not allow electronic reproduction (e.g
copying to a disk or communication (e.g email. ;astly existing statutory
licenses held by educational institutions authorising breach of copyright now
extends to the digital environment.
Li'itation of liability of ISPs 6 !ee section 4.
#. Anti1circu!vention in Australia
%n order to control the distribution and use of their works, copyright owners are
increasingly embedding access and copy protection mechanisms in their digital works.
%t is the circumvention of these access controls that often infringes copyright and paves
the way for free and easy dissemination of copyright protected material. The
permissibility of such technologies is a controversial issue, as there is no easy way of
reaching a balance between copyright holders$ right to have their work ade@uately
protected and the right of the consumer to freely use legitimately ac@uired material.
%n #ustralia the Copyright Amendment )3igital Agenda* Act 2+++ (C#)# contains
provisions to criminalise devices for the purpose of 6the circumvention, or facilitating
the circumvention, of any effective technological protection measures$ (now (art F
)ivison 2# of the Copyright Act. %t is similar to its 8! predecessor, the )JC# (see
below. #ctivities protected by the amendments include the importation, and
manufacture of circumvention devices and circumvention services (s 112# Copyright
Act, removal or alteration of electronic rights management information (s 112G and,
commercial dealings with works whose electronic rights management information is
removed or altered (s 112C. #ltering electronic rights management information may
include commercially distributing, importing a copy of a work, communicating the copy
to the public or using a copy knowing the electronic rights management information had
been so removed or altered without the permission of the copyright holder (s 112C, the
latter dealing also applies to s 112G.
15
The C#)# was unsuccessfully used by !ony in its case challenging the legality of
(lay!tation 6mod chips$, see below.
!ee p. 17A last paragraph , p.22,, p.243
the Copyright #mendment #ct 2,,2 (Cth replaced C#)#
(http"''www.comlaw.gov.au'Com;aw';egislation'#ct1.nsf','C3<77A)A###<)1*2C
#27A252,,,C<47)M/pen)ocument
Commentary
(http"''www.ema.gov.au'www'agd'agd.nsf'(age'Copyright0%ssuesand:eviews0Copyrig
ht#mendment#ct2,,2
!ee also (http"''www.unimelb.edu.au'copyright'information'fastfind'**0T(J.html
;%?B )/<!?$T ./:B
0S 3ree tra(e agree'ent8s affect on the Copyright &'en('ent )*igital &gen(a+
&ct 2,,, )Cth+
E <xtension of the 7, year period of protection to A, years (that is the term of
copyright protection now extends for the life of the author plus A, years rather
than the life of the author plus 7, years.
E <nhancement of scope of protection for electronic right management
information
E ?ew criminal offences for commercial and significant infringement of copyright
E ;imits of the liability of carriage service providers
E %ntorudciton of eoncmoic rights for performers
E %mplementation of a scheme to limit the remdedies available against carriage
service providers
#.1. Case )tudy2 )ony Co!puter Entertain!ent v )tevens
The *ederal Court in Da2ushi:i Daisha %ony Computer Entertainment ' %te'ens =2,,2>
*C# 1,2 (http"''www.austlii.edu.au'au'cases'cth'federal0ct'2,,2'1,2.html, found that
KmodEchipsK installed on (laystation consoles to circumvent copy protections do not
breach the new provisions of the Copyright Act as amended by the C#)# because the
device did not prevent the actual copying of the games.
<ach time a game is inserted, a (laystation console checked its authenticity by reading
the access code, which is burned onto the game C). The mod chips avoid this
authentication process, allowing pirated versions of the game to run on the console.
17
The finding rested on the fact that the chips do not 6prevent or inhibit the infringement
of copyright$, since the actual 6infringement of copyright$ occurs when the game is
copied, not when it is played.
The #ustralian Competition and Consumer Commission (http"''www.accc.gov.au,
intervening as an amicus curae (friend of the court, argued that the chips did not have
6limited commercially significant purpose or use, or no such purpose or use, other than
the circumvention$, since they also worked to overcome !ony$s regional protection
measures & a legal purpose. Lowever, the Court did not deal with this issue.
Da2ushi:i Daisha %ony Computer Entertainment ' %te'ens (2,,4 142 *C: 41 *ull
Court of the *ederal Court
(http"''www.austlii.edu.au'au'cases'cth'*C#*C'2,,4'17A.html
Commentary
(http"''www.ag.gov.au'agd'...'enewscopyrighthome.nsf'(age'e?ews0%ssue04,0E
0!eptember02,,4O2
$. Anti1Circu!vention in the 3nited )tates
#merica$s 3igital Billennium Copyright Act 1,,# (http"''frwebgate.access.gpo.gov'cgiE
bin'getdoc.cgiMdbnameN1,70cong0billsPdocidNf"h2231enr.txt.pdf represents the most
comprehensive reform of 8nited !tates copyright and seeks to update the law to reflect
copyright concerns of the )igital #ge. %t also implements the .orld %ntellectual
(roperty /rganisation$s (.%(/ (http"''www.wipo.org Copyright and (erformance and
(honograms Treaty (see section 1,.
The )JC# is divided into five titles"
Title I, the 6.%(/ Copyright and (erformances and (honograms Treaties
%mplementation #ct of 1113,$ implements the .%(/ treaties.
Title II, the 6/nline Copyright %nfringement ;iability ;imitation #ct,$ creates
limitations on the liability of online service providers for copyright infringement
when engaging in certain types of activities.
Title III, the 6Computer Jaintenance Competition #ssurance #ct,$ creates an
exemption for making a copy of a computer program by activating a computer
for purposes of maintenance or repair.
Title I9 contains six miscellaneous provisions, relating to the functions of the
Copyright /ffice, distance education, the exceptions in the Copyright #ct for
libraries and for making ephemeral recordings, QwebcastingR of sound
recordings on the %nternet, and the applicability of collective bargaining
agreement obligations in the case of transfers of rights in motion pictures.
Title 9, the 6Fessel Lull )esign (rotection #ct,$ creates a new form of
protection for the design of vessel hulls. (<xtracted from
http"''www.loc.gov'copyright'legislation'dmca.pdf.
12
%t is a controversial piece of legislation as its antiEcircumvention provisions affect the
way software engineers, computer scientists, and computer security specialists do their
work. The law also affects how librarians and educational institutions ac@uire new
works, how %nternet users can protect their privacy, and even how 9ournalists can report
on stories involving technical protection measures. Gy using a technical device to
protect music, images or words the copyright holder can turn traditionally permissible
access to or use of digital content into a civil violation. This new law has complex
provisions and a few narrow exemptions (extracted from
http"''www.chillingeffects.org'anticircumvention.
The <lectronic *rontier *oundation (<** also noted that the )CJ# also seriously
inhibits encryption research, as the current provisions are far too narrow to cover all
legitimate research methods (see
http"''www.eff.org'%(')JC#'1111,3,10eff0comments.html.
!ome useful links relating to the #ct and its pitfalls include"
http"''www.loc.gov'copyright'legislation'dmca.pdf E provides a detailed outline
of the #ct and its chief provisions.
http"''www.eff.org'%(')JC#' ;%?B )/<!?$T ./:B E includes a full
version of the legislation, as well as several other resources, hosted by the
<lectronic *rontier *oundation, a consumer rights group opposed to many
applications of the )JC#. The 1113 #merican legislation is one of the most
widely discussed and controversial laws in the area. %t gives sweeping protection
to copyright holders by making almost all copyright circumventions criminal
offences-
http"''www.chillingeffects.org'anticircumvention'fa@.cgi & a detailed *#S page
about the )JC#-
http"''antiEdmca.org'fa@0local.html and the #ntiE)JC# homepage & describes
some of the problems associated with the #ct.
$.1. Case )tudy2 3nited )tates v Elco!soft
,.1.1. ac!ground
:ussian software company <lcom!oft became the defendant in the first federal criminal
prosecution under the )JC#$s anticircumvention provisions.
The #dobe eGook :eader enables electronic books to be read, moved between
computers, backed up, printed, copied and to be read aloud through a text to speech
feature. # publisher of a particular electronic book can disable any or all of the functions
provided by the #dobe eGook :eader, which is usually done to protect the intellectual
property in the book.
1A
)mitry !klyarov, an employee of :ussian software programmer <lcom!oft, designed
the Q#dvanced eGook (rocessorR, which enables the user of an #dobe eGook :eader to
disable restrictions that the publisher of a particular electronic book might have
imposed. #mong other things it meant that a reader using the #dvanced eGook
(rocessor could make copyright content available for unlimited duplication and
distribution.
<lcom!oft sold the #dvanced eGook (rocessor over the %nternet. #bout 2, copies were
sold worldwide, including nine in the 8nited !tates. #dobe became aware that
<lcom!oft had developed the #dvanced eGook (rocessor and contacted <lcom!oft
asking that they cease and desist from manufacturing and selling the software program.
<lcom!oft refused and #dobe then alerted the 8nited !tates +overnment who charged
<lcom!oft with trafficking in, and offering to the public, a software program that could
circumvent technological protections on copyright material.
,.1.2. *rguments at trial
The two key issues at trial were <lcom!oft$s state of mind during the period it offered
the software, and the 6fair use$ provisions of the )JC#.
:ilf.l
#ccording to instructions given by the 9udge, the 9ury had to agree not only that
<lcom!oft broke the law, but that it did so willfully, as a conscious violation of the
)JC# antiEcircumvention provisions.
<lcom!oft$s attorney, Doseph Gurton, argued that <lcom!oft had no intention of doing
anything improper when it created a program to provide eGook customers with more
options for using the content they purchased. 6<lcom!oft believed at the time it was
creating a program that would allow legitimate users of eGooks more flexibility.
(rosecutor, #ssistant 8! #ttorney !cott *rewing on the other hand maintained that
<lcom!oft 6were selling a burglar tool for software to make a profit$. *rewing said
<lcom!oft representatives knew about the law and willfully violated it, emphasisng
<lcom!oft$s (resident and Janaging )irector$s admission in court about his awareness
of the )JC#.
3air .se
The public$s right to make fair use of copyright works is an entrenched part of copyright
law. %n the 8nited !tates the fair use provision is regarded as necessary to provide a
balance between copyright law and the *irst #mendment guarantee of free speech.
13
Gurton claimed that the )JC# brushes aside the fair use rights of consumers protected
by mainstream copyright law. Gurton asked the 9urors to compare the generous rights
afforded to a paper book purchaser to the rights afforded an eGook purchaser. The
purchaser of a paper book can lend, resell, or give the book away. 8nlike a paper book,
an eGook seeks to control what the user can do with that book. Gurton argued that
<lcom!oft$s #dvanced eGook (rocessor merely enabled persons, who had lawfully
purchased the right to view eGooks from retailers, to make back up copies and to
transfer text to other media for personal use under traditional 6fair use$ rights.
# further fact that strengthened the defence case was that under cross examination an
#dobe engineer acknowledged that his company did not find any illegal eGooks on the
%nternet even after hiring two companies to search the .eb for unauthorised copies.
,.1.3. The decision
/n 1A )ecember 2,,2, after several days of deliberation, the 9ury ac@uitted <lcom!oft
of all charges. %n a later interview, Dury *oreman )ennis !trader said" 68nder the eGook
formats, you have no rights at all, and the 9ury had trouble with that concept$. *urther,
!trader said the 9urors didn$t understand why a million dollar company would put on
their web page an illegal thing that would ruin their whole business if they were caught.
*inally, !trader said the 9ury itself found the )JC# confusing, making it easy for 9urors
to believe that executives from :ussia might not fully understand it.
(http"''home.sandiego.edu'Tlsolum'ip'<lcom.htm
Checked, the link and material is no longer available in that website ;%?B )/<!?$T
./:B
&. %rotection of Co!puter %rogra!s
Copyright protection extends to the source and ob9ect code of a computer program and
any expression of systems or methods, but not the functionality of the program (which
is covered by the patent system (Autodes: ' 3yason (1114 1A2 C;: 44,- 3ata Access
' "o1erflex =1111> LC# 51
(http"''www.austlii.edu.au'au'cases'cth'high0ct'1111'51.html. The source code is
protected as a literary work whose definition includes computer programs (s1,
Copyright Act. This means developers may create functionally compatible software
programs without infringing copyright provided no underlying expression is
misappropriated ()iv 5# Copyright Act. The protection of online databases however is
not so straightforward & see section 1.
11
&.1. Copyright A!end!ent -%arallel I!portation/ Act 2003
The purpose of the Copyright Amendment )"arallel Importation* Act 2,,4 (Cth
(http"''www.comlaw.gov.au'comlaw';egislation'#ct1.nsf','*G,C374727512)C5C#27
2*A2,,1,,GA7M/pen)ocument is to amend the Copyright Act to allow parallel
importing of computer software, computer games, and books, periodicals and sheet
music in both electronic and print form. (arallel importation is the importation of works
which have been legitimately purchased overseas (i.e purchased without infringing the
creatorKs copyright in the overseas country by someone other than the authorised
importer. %t is believed by many that the prohibition of parallel importation results in a
segregated market. %ts authorisation is aimed primarily at encouraging competition.
!ome industry groups argue that there is a link between parallel importation and the
importation of pirated or infringing material. This is because parallel importation
weakens the ability to identify the importation and distribution of pirate copies (see
4ills 3igest 144 (http"''www.aph.gov.au'library'pubs'bd'2,,1E,2',2bd144.htm.
4. %rotection of Online .ata*ases
.ith the evolution and commercialisation of the %nternet, companies and organisations
are providing and storing large volumes of database information online. Jany
companies invest large amounts of time and money into the collection of data and the
creation of databases, and the information accumulated represents significant
commercial value. %n recent years, the %nternet has experienced significant growth and
expansion, and organiCations discover that their online databases become readily
accessible not only to the average consumers, but also to their competitors.
(rotection is afforded to databases under the Copyright Act as a 6literary work$- s 1,
explicitly defines a literary work to include Qa table, or compilation, expressed in words,
figures or symbolsR, provided that the database is original within the meaning of section
42(1 and provided that the 6traditional$ common law threshold of originality is
satisfied.
?umerous #ustralian cases have concluded that databases can be considered as
compilations, and @ualify for protection as a literary work, bringing databases under the
protection of the #ct (see below.
2,
4.1. )atisfying 5Originality6
*or copyright to subsist in a compilation it must be shown that the database contains
original content or has sufficient labour, skill, 9udgement or ingenuity used in its
selection and arrangement. %t is unlikely that databases will satisfy this re@uirement of
originality as most databases are a compilation of material that is generally available.
?evertheless, what will be sufficient will depend on the particular facts of the case.
#ustralia$s position on the standard of originality was decided in T6 7lanagan %mash
6epairs ' Eones =2,,,> *C# 227
(http"''www.austlii.edu.au'au'cases'cth'federal0ct'2,,,'227.html, the Court considered
this issue and found that the applicantKs motor vehicle database attracted protection
under the 6sweat of the brow$ doctrine. Dustice Lely suggested that copyright subsisted
in the databases because of the selection or arrangement of material, and the sufficient
skill, 9udgement and labour that was involved. Telstra Corporation 0imited ' 3es:top
Bar:eting %ystems "ty 0td =2,,1> *C# 212
(http"''www.austlii.edu.au'au'cases'cth'federal0ct'2,,1'212.html affirmed this
approach.
%f a compilation argument is successful, then generally speaking it is the combination or
arrangement of material in the online database which is protected, rather than the
underlying information or data. Copyright exists in the database as an entire work and
not in each individual piece of information that comprises the database.
4.2. (i!itations associated with 5online6 data*ases
<ven if the whole of the database is considered to be sub9ect to copyright, the @uestion
still remains whether a substantial part of that database has been copied. !ubstantial
copying has been referenced to the @uality of the replication rather than @uantity.
8ltimately, this is a @uestion of fact and degree depending on individual cases. %t is
however doubtful that courts will consider the taking of a few pieces of insignificant
data from a database as sufficient to constitute a substantial reproduction of the
copyright work in that database.
The Copyright Act appears to provide that the author of a work must be a 6@ualified
person$ (as described in s 42(1. There are concerns that where a computer program
has contributed or created an online database, the apparent re@uirement of 6human$
authorship may not be satisfied.
The use of copyright to protect online databases is an argument in #ustralia which is of
uncertain strength. <ven if databases are given standing as compilation works, they
continue to encounter difficulties in other elements of copyright, such as originality.
21
10. he International ,egi!e
The first international document protecting copyright was the 1332 Gerne Convention
for the (rotection of ;iterary and #rtistic .orks
(http"''www.wipo.int'treaties'en'ip'berne'trtdocs0wo,,1.html, which contains 4 basic
principles"
?ational Treatment & which prevents discrimination against copyright holders of
other countries-
#utomatic protection & provides works are automatically protected- and
%ndependence of protection & the work will be protected within a signatory state
irrespective of the copyright status in the country of origin.
The Convention since 1332 has gone substantial changes, the latest in 11A1 in (aris, and
is administered by the .orld %ntellectual (roperty /rganisation (.%(/. The
Convention$s ma9or shortfall was that it lacked effective enforcement measures.
This deficiency lead to the #greement on Trade :elated #spects of %ntellectual (roperty
:ights (T:%(! (http"''www.wipo.int'treaties'en'ip'berne'trtdocs0wo,,1.html,
administered by the .orld Trade /rganisation (http"''www.wto.org. .hile T:%(! still
embodies many principles of the Gerne Convention, it contains a powerful enforcement
mechanism. !tates who do not adopt T:%(sEcompliant intellectual property systems can
be disciplined through the .T/Ks dispute settlement mechanism, which is capable of
authorising trade sanctions against dissident states. %n 1115 it was incorporated into the
+eneral #greement on Tariffs and Trade which makes it an important trade focused
source of copyright protection.
The other notable international treaty is the 8niversal Copyright Convention 1172
(http"''www.law.cornell.edu'treaties'berne'overview.html, which is administered by
8?<!C/. %t was offered as initially offered as an alternative to the Gerne Convention,
but today is shadowed by the Gerne Convention (see
http"''www.wikipedia.org'wiki'8niversal0Copyright0Convention.
.%(/$s Copyright Treaty (http"''www.wipo.int'clea'docs'en'wo'wo,44en.html and
(erformance and (henograms Treaty 1112
(http"''www.wipo.int'clea'docs'en'wo'wo,45en.html protect copyright in electronic
media and computer programs, as well as updating the Gerne Convention to reflect
T:%(!. The .%(/ Copyright Treaty ensures that computer programs are protected as
literary works (#rticle 5 and that the arrangement and selection of material in databases
is protected (#rticle 7. %t provides authors of works with control over their rental and
distribution (#rticles 2E3 which they may not have under the Gerne Convention alone.
%t also prohibits circumvention of technological measures for the protection of works
(#rticle 11 and unauthorised modification of rights management information contained
in works (#rticle 12.
22
The interoperation of these instruments results in protection for exported works being
assured by in signatory country, and protection for imported works is guaranteed by
domestic legislation which reflect the principles within these agreements (see Uee *en
;im Cy2erspace 0a1& Commentaries and Baterials p 5,5.
p.132
p. 111 )raft access to knowledge treaty 2,,7
(http"''www.cptech.org'a2k'a2k0treaty0may1.pdf
The treaty is intended to ease the transfer of knowledge to developing nations, and to
secure the viability of open innovation systems all over the world
10.1. European 3nion .irectives
Copyright of material published on websites is protected by the <8 )irective 12'1'<C
on the ;egal (rotection of )atabases (http"''eurE
lex.europa.eu';ex8ri!erv';ex8ri!erv.doMuriNC<;<V"42,,1;,,21"<?"LTJ; by
classifying a website as a database. %t provides protection to the creator of the databases
from extraction and reEultilisation of a whole or substantial part of the content of the
database based on either @ualitative or @uantitative measurements.
The <8 )irective 2,,1'21'<C on the Larmonisation of Certain #spects of Copyright
and :elated :ights in the %nformation !ociety (http"''eurE
lex.europa.eu';ex8ri!erv';ex8ri!erv.doMuriNC<;<V"42,,1;,,21"<?"LTJ; seeks
to further harmonise copyright law across the <8 and the provisions encourage member
states to ratify the .%(/ Copyright Treaty. The )irective"
harmonises the rights of reproduction and distribution-
sets out a new right of communication to the public by wire or wireless (that is,
by nonEtraditional, including electronic means-
specifies an exhaustive list of optional exceptions to the rights-
imposes obligations on member states to protect technological measures
employed by
rights owners to prevent unauthorised use and to protect rights management
information attached to works by rights owners to enable them to keep control of
their works- and
contains limited safeguards to enable legitimate users to use copyright works.
(http"''www.nationalarchives.gov.uk'legal'copyright.htm
24
11. Case )tudy2 7apster
%n 2,,1 ?apster agreed to comply with court orders forcing them to restrict access to
copyright materials available via their site. ?ine record companies and other rights
holders, including !ony Jusic and Capitol :ecords had sued ?apster for copyright
infringement in the case of A C B 6ecords Inc< et al ' 5apster Inc
(http"''www.copyright.gov'docs'napsteramicus.html.
?apster provided a central registration and indexing facility for endEuser sharing of
J(4 files. Gy sharing files through uploading and downloading, the 8! Court of
#ppeal found that ?apster$s subscribers were dealing with musical copyright works in
breach of the true copyright owner$s exclusive rights of reproduction and distribution
under 8! copyright law.
The Court further found that ?apster, although not itself engaging in direct copyright
infringement, nevertheless had both actual and constructive knowledge of direct
infringement by its subscribers and had therefore contributed to the breaches.
# casenote of this case can be obtained from
http"''www.digital.org.au'issue'napster.htm. *or further details of the copyright issues
raised by ?apster see http"''www.digital.org.au'issue'napster.htm.
p.2,2
BaCaa case
p.2,3 J+J !tudios, %nc. v. +rokster, ;td. 757 8.!. 114 (2,,7
(http"''www.law.cornell.edu'supct'html',5E53,.H!.html
Casenote (http"''www.copyright.gov'docs'mgm'index.html
p.2,1
#ustralian BaCaa case
(http"''www.austlii.edu.au'au'cases'cth'federal0ct'2,,7'1A2.html
Casenote (http"''www.copyright.org.au'news'newsbytopic'recentcases'822,54'
25

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