Cyberspace Law materials Copyright

1. Copyright Overview....................................................................................................2 1.1. Copyright in Australia 2 1.2. Copyright and the Internet 3 1.3. Existence of copyright 3 1.4. Term of protection 4 1.5. Exceptions to Copyright 4 1.5.1. Fair dealing 4 1.5.2. Educational institutions and libraries 5 1.5.3. Technical processes and temporary copies 5 1.5.4. Computer software 5 1. . Copyright infringement 5 1.!. "enalties 1.#. $eneral comments 2. Licensing of Copyright ...............................................................................................7 2.1.1. Background 7 2.1.2. You and Facebook 7 3. Test for ISP Liability .................................................................................................. 3.1.1. Roadshow v iiNet ISP liability for authorisation infringement 9 !. "oral #ights..............................................................................................................1$ 4.1.1. Background 10 4.1.2. Indigenous Australians and Copyright Law 11 %. Copyright &'en('ent )*igital &gen(a+ &ct 2$$$ )Cth+ .....................................13 ,. &nti-circ.'vention in &.stralia..............................................................................1! .1. Case %tudy& %ony Computer Entertainment ' %te'ens 15 7. &nti-Circ.'vention in the /nite( States ...............................................................1, !.1. Case %tudy& (nited %tates ' Elcomsoft 1! 7.1.1. Background 17 7.1.2. Arguments at trial 17 7.1.3. The decision 18 0. Protection of Co'p.ter Progra's .........................................................................1 #.1. Copyright Amendment )"arallel Importation* Act 2++3 1, . Protection of Online *atabases................................................................................2$ ,.1. %atisfying -.riginality/ 2+ ,.2. 0imitations associated 1ith -online/ data2ases 21 1$. The International #egi'e.......................................................................................21 1+.1. European (nion 3irecti'es 22 11. Case St.(y1 2apster ...............................................................................................23 12.

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Date: 13 September, 2011

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'

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4 #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' .

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 websitea 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.

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5 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$s death or 7, years from the year of first publication (s 44 Copyright Act, see also ss 14, 15 . # published edition of a book is protected for only 27 years after first publication of the edition (s 12 . /nce copyright expires, the material enters the public domain and can be freely used by others. The period of copyright protection has been extended to A, years in the <uropean 8nion and the 8B (<uropean 8nion )irective on 8armonising the Term of Copyright "rotection , as well as the 8! (%onny 4ono Copyright Term Extension Act . =see p17A of *itCgerald et al, Internet and E9Commerce 0a1> <xtensive amendments were made by the (% 7ree Trade Agreement Implementation Act 2++4 (8!*T#% #ct and the Copyright 0egislation Amendment Act 2++4, both of which entered into force on 1 Danuary 2,,7, giving effect in large part to #ustralia$s obligations under the #ustraliaE8nited !tates *ree Trade #greement (#8!*T# . #mong the changes introduced by the 8!*T#% #ct were" (i (ii (iii (iv (v an extension of the 7,Eyear period of protection to A, years, an expansion of the protection given to performers, enhancement of the scope of protection for electronic rights management information, new criminal offences for commercial and significant infringements of copyright, and 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 .

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7 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. 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 .

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2 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 workstampering 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 .

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A 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. # 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.

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3 #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. <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.

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1 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 concernedthe nature of the relationship between the %!( and the infringer- and whether the %!( took reasonable steps to prevent or avoid the infringement.

+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.

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1, #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.

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 creatortreating 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

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11

4.1.2. 'ndigenous *ustralians and Copyright +aw p.221 (*itCgerald et al %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.

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12 %? 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 . !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 .

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14 ".

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. 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 availableand 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.

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15 #. 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 . 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

/S 3ree tra(e agree'ent8s affect on the Copyright &'en('ent )*igital &gen(a+ &ct 2$$$ )Cth+

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17 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. <nhancement of scope of protection for electronic right management information ?ew criminal offences for commercial and significant infringement of copyright ;imits of the liability of carriage service providers %ntorudciton of eoncmoic rights for performers %mplementation of a scheme to limit the remdedies available against carriage service providers

E E E E E

#.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. 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

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12 $. 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 . %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

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1A 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 offenceshttp"''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#$s anticircumvention provisions. The #dobe eGook :eader enables electronic books to be read, moved between computers, backed up, printed, copied and to be read aloud through a text to speech feature. # publisher of a particular electronic book can disable any or all of the functions provided by the #dobe eGook :eader, which is usually done to protect the intellectual property in the book. )mitry !klyarov, an employee of :ussian software programmer <lcom!oft, designed the Q#dvanced eGook (rocessorR, which enables the user of an #dobe eGook :eader to disable restrictions that the publisher of a particular electronic book might have imposed. #mong other things it meant that a reader using the #dvanced eGook (rocessor could make copyright content available for unlimited duplication and distribution. <lcom!oft sold the #dvanced eGook (rocessor over the %nternet. #bout 2, copies were sold worldwide, including nine in the 8nited !tates. #dobe became aware that <lcom!oft had developed the #dvanced eGook (rocessor and contacted <lcom!oft asking that they cease and desist from manufacturing and selling the software program. <lcom!oft refused and #dobe then alerted the 8nited !tates +overnment who charged <lcom!oft with trafficking in, and offering to the public, a software program that could circumvent technological protections on copyright material. ,.1.2. *rguments at trial The two key issues at trial were <lcom!oft$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.

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13 <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$s right to make fair use of copyright works is an entrenched part of copyright law. %n the 8nited !tates the fair use provision is regarded as necessary to provide a balance between copyright law and the *irst #mendment guarantee of free speech. Gurton claimed that the )JC# brushes aside the fair use rights of consumers protected by mainstream copyright law. Gurton asked the 9urors to compare the generous rights afforded to a paper book purchaser to the rights afforded an eGook purchaser. The purchaser of a paper book can lend, resell, or give the book away. 8nlike a paper book, an eGook seeks to control what the user can do with that book. Gurton argued that <lcom!oft$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

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11 &. %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. &.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 .

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2, 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 . 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.

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21 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.

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.

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22 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 . 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-

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24 sets out a new right of communication to the public by wire or wireless (that is, by nonEtraditional, including electronic meansspecifies an exhaustive list of optional exceptions to the rightsimposes 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

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

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25 Casenote (http"''www.copyright.org.au'news'newsbytopic'recentcases'822,54'

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