Technological Protection Measures
in Australia
August 2013
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Definitions of ‘effective technological measure’ in international treaties
“Effective technological measure means any technology, device, or component that,
in the normal course of its operation, controls access to a protected work,
performance, phonogram, or other protected subject matter, or protects any
copyright or any rights related to copyright.”
- Transpacific Partnership Leaked text Article 4.9(f)
“Effective technological measure means any technology, device, or component that,
in the normal course of its operation, controls access to a protected work,
performance, phonogram, or other protected subject matter, or protects any
copyright.”
- Australia-United States Free Trade Agreement 17.4.7(b)
“Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are
used by authors in connection with the exercise of their rights under this Treaty or
the Berne Convention and that restrict acts, in respect of their works, which are not
authorized by the authors concerned or permitted by law.”
- WIPO Copyright Treaty Article 11
TPMs in Australia pre-AUSFTA
The Digital Agenda Act introduced new TPM protections for copyrighted material in
Australia. However, under this act TPMs had a much narrower definition than they do
today. Specifically, measures were required to actually “prevent or inhibit the
infringement of copyright”1.
This informed the decision of the High Court in the case Stevens v. Sony, in which Sony had
accused Stevens of distributing circumvention devices in the form of ‘mod chips’ which
enabled PlayStation consoles to bypass region coding on games.
The High Court found in Stevens favour. The joint judgment stated that:
…
“The true construction of the definition of ‘technological protection measure’ must be
one which catches devices which prevent infringement. The Sony device does not prevent
infringement. Nor do many of the devices falling within the definition advanced by Sony.
1
http://www.austlii.edu.au/au/legis/cth/consol_act/caaa2000294/sch1.html
Page | 3
The Sony device and devices like it prevent access only after any infringement has taken
place.”2
…
Therefore in Australia TPMs were determined not to include measures that did not protect
copyrighted work from infringement. This was in contrast to how TPMs are used under America’s
controversial DMCA.
This met Australia’s international obligations at the time. In Stevens v. Sony, the High Court
noted that Digital Agenda Act was intended to ensure that Australia was complying with the
WIPO treaties, including provisions requiring legal protection and effective legal remedies for
TPMs3.
TPMs under the AUSFTA
However this changed under the Australia-US Free Trade Agreement (AUSFTA), which was
signed in 2004. The agreement included a definition of TPMs which departed from the
definition used in the WIPO treaties.
When it was signed, many expressed concerned that the definition included in the article
17 of the treaty would result in a DCMA-like TPM regime in Australia where circumvention
of measures unrelated to protecting copyright from infringement would become illegal.
In particular, there were concerns that the definition in AUSFTA affords protection to
measures used to enforce market segmentation. As Jacob Varghese commented in 2004:
…
“A ban on devices that circumvent TPMs significantly strengthens the copyright holder’s
ability to prevent parallel importing, by making it illegal to circumvent the region-coding,
and thus play a DVD or computer game purchased in another country on an Australianbought machine. It does seem incongruous that a ‘free trade’ agreement, purportedly
intended to liberalise trade, should assist copyright holders to establish their own trade
barriers.”4
…
However, the concerns extended far beyond just market segmentation and parallel
imports. For example, a 2004 research paper conducted by David Richardson for the
2
3
4
Quoted in Rimmer, M., (2007), Digital copyright and the consumer revolution : hands off my iPod
Rimmer, M., (2007), Digital copyright and the consumer revolution : hands off my iPod
Quoted in Rimmer, M., (2007), Digital copyright and the consumer revolution : hands off my iPod
Page | 4
federal parliament argued that “17.4.7(e) of the AUSFTA severely limits the ability of the
Government to allow wide exemptions for non-infringing uses”5. He went on to state that:
…
“ Restrictions on encryption have the immediate effect of denying a lot of the fair
use exemptions that normally apply under copyright legislation, such as making backups and recording for later viewing, as well as activities undertaken for purposes such
as criticism, comment, news reporting, teaching, scholarship or research… The
Phillips Fox report mentioned earlier did in fact recommend amending the Copyright
Act 1968 to permit ETM circumvention devices so as to allow fair dealing and access
to legitimately acquired non-pirate copies of a work. However, 17.4.7(e) of the
AUSFTA severely limits the ability of the Government to allow wide exemptions for
non-infringing uses.”6
…
The AUSFTA expanded the definition of TPMs to include measures which control access to
protected works. Once Australian law was revised to comply with the AUSFTA, it become
apparent that the concerns raised above were not ill-founded.
TPMs in Australia post-AUSFTA
In 2006 the Australian parliament amended the Copyright Act to comply with the AUSFTA
requirements; however this came after a parliamentary inquiry which advised that the
legislation should define TPMs in a way that draws a direct connection between access control
and the protection of copyrighted works. It also made other recommendations, such as calling
for broad exceptions for TPMs in relation to activities related to fair dealing. However there has
been debate as to whether the recommendations of this committee are consistent with our
AUSFTA obligations7.
Despite the reservation around whether or not these recommendations comply with AUSFTA,
Australian law has made some attempts to reduce misuse of TPM protections. According to the
Electronic Frontiers Foundation “[t]his could be seen as an attempt to narrow the protection
provided by TPMs specifically to copyright-related purposes8.
For example the use of a measure which “controls geographic market segmentation by
preventing the playback in Australia of a non-infringing copy of the work or other subject-matter
acquired outside Australia” is specifically omitted from the definition of a TPM under Section 10
5
Richardson, D, (2004), “Intellectual property rights and the Australia—US Free Trade Agreement”,
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/r
p0304/04rp14#con
6
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
rp0304/04rp14
7
Rimmer, M., (2007), Digital copyright and the consumer revolution : hands off my iPod
8
EFF
Page | 5
of the Copyright Act. As a result tools for circumventing measures used for market
segmentation, such as region-free DVD players, are legal in Australia9.
Other important exemptions include10:

where there is permission of the copyright owner

interoperability between computer programs

encryption research

computer security testing

online privacy

law enforcement and national security, and

acquisitions by libraries and other related institutions.
There are also additional exceptions included in regulation11:

reproduction of computer programs to make interoperable products

the reproduction and communication of copyright material by educational and other
institutions assisting people with disabilities

the reproduction and communication of copyright material by libraries, archives and
cultural institutions for certain purposes

the inclusion of sound recordings in broadcasts and the reproduction of sound recordings
for broadcasting purposes

access where a TPM is not operating normally and a replacement TPM is not reasonably
available, and

access where a TPM damages a product, or where circumvention is necessary to repair a
product
Despite these efforts, however, there are numerous other measures which do not protected
against infringing use are considered TPMs under Australian law. For example digital locks which
prevent backing-up data or using works on other devices (reading a Kindle eBook on a non-Kindle
eReader) are TPMs. There are no exceptions for bypassing TPMs for fair dealing activities.
Furthermore, the provisions seeking to exclude uses like market segmentation have aged, and
may not be applicable to newer forms of market segmentation. CHOICE12 and others, including
9
http://www.ag.gov.au/RightsAndProtections/Documents/ShortGuidetoCopyright-October2012.pdf
Ibid.
11
Ibid
10
Page | 6
the Australian Digital Alliance13, Associate Professor Bruce Baer Arnold14 and Dr Nicolas Suzor and
Paula Dootson15 have argued that it is unclear how they may apply to new forms of TPMs, such as
online geo-blocks.
Conclusion
Before the AUSFTA, Australian law relating to TPMs had been interpreted by the High Court to
relate specifically to measures which prevent infringement. That is not the case now in
Australia. While not as restrictive as the DCMA, Australian law nevertheless applies broad
protections, including for TPMs which do not protect against copyright infringement.
TPMs which only applied to measures used to protect work against infringement would not
comply with the AUSFTA.
12
CHOICE, (2012), “Submission to the Review of Technological Protection Measure Exceptions Made Under
the Copyright Act 1968”
13
Australian Digital Alliance, (2012), “Inquiry into IT pricing”
14
https://theconversation.com/fyx-isp-will-unlock-geoblocked-sites-but-will-it-breach-copyright-6927
15
Dootson, P., Suzor, N., (2013), “Inquiry into IT Pricing”
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Appendix 1: Current definitions of TPMs in Australia
"technological protection measure" means:
(a) an access control technological protection measure; or
(b) a device, product, technology or component (including a computer
program) that:
(i) is used in Australia or a qualifying country by, with the permission
of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other
subject-matter; and
(ii) in the normal course of its operation, prevents, inhibits or restricts
the doing of an act comprised in the copyright;
but does not include such a device, product, technology or component
to the extent that it:
(iii) if the work or other subject-matter is a cinematograph
film or computer program (including a computer game)--controls geographic market
segmentation by preventing the playback in Australia of a non-infringing copy of
the work or other subject-matter acquired outside Australia; or
(iv) if the work is a computer program that is embodied in a machine
or device--restricts the use of goods (other than the work) or services in relation to the
machine or device.
"access control technological protection measure" means a device, product, technology or
component (including a computer program) that:
(a) is used in Australia or a qualifying country:
(i) by, with the permission of, or on behalf of, the owner or the exclusive
licensee of the copyright in a work or other subject-matter; and
(ii) in connection with the exercise of the copyright; and
(b) in the normal course of its operation, controls access to the work or other
subject-matter;
but does not include such a device, product, technology or component to the extent that it:
(c) if the work or other subject-matter is a cinematograph film or computer
program (including a computer game)--controls geographic market segmentation by preventing
the playback in Australia of a non-infringing copy of the work or other subject-matter acquired
outside Australia; or
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(d) if the work is a computer program that is embodied in a machine or device-restricts the use of goods (other than the work) or services in relation to the machine or device.
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