Who's responsible:

Copyright Amendment (Technological Protection Measures) Bill 2006 and related Regulations - Exposure Drafts

Summary of exposure draft provisions on technological protection measures

What is a TPM?

Technological protection measures (TPMs) are technical locks copyright owners use to stop their copyright material from being copied or accessed (eg. passwords, encryption software and access codes).

TPMs are used by copyright owners to support business models for distributing materials such as films and music online and self-protect against increased piracy.  The Copyright Act 1968 currently establishes liability for the manufacture and commercial supply of devices or services which circumvent TPMs. The Bill creates new offences for circumventing TPMs and new exceptions to those offences. 

Why is the Government changing the law?

The Government is introducing a new TPM scheme to create a more secure environment for copyright owners to release their copyright materials.  TPM protection plays an important role in assisting copyright owners to protect their works from piracy.  This means more material will be made available digitally and through online distribution channels. 

The Government is replacing the current TPM scheme to implement the Australia-United States Free Trade Agreement (AUSFTA).  The new scheme also has a mechanism for creating additional exceptions that provides the flexibility necessary to respond to technological developments. 

TPMs must be connected with copyright infringement

The scope of the scheme is limited to preventing circumvention of TPMs designed to stop copyright piracy. The scheme will not cover TPMs which are not designed to prevent or inhibit people from infringing copyright.  The scheme will not apply to TPMs solely designed for other purposes, such as market segmentation (eg region coding) or the protection against competition in aftermarket goods (eg spare parts) where the TPM does not have a connection with copyright. 

New offences

To help combat piracy the new scheme introduces civil remedies and criminal penalties where a person circumvents an access control TPM.  It also builds on the existing scheme which already provides criminal penalties for dealing in circumvention devices and services.  To discourage the dealing in these devices, the provisions will provide strong criminal penalties of five years imprisonment and/or fines of 550 penalty units (currently $60,500). 

New exceptions

The Government recognises that some exceptions to liability are also appropriate where there is legitimate use of copyright material.  The Copyright Act already includes a number of exceptions to copyright infringement in special cases.  It is not intended that the new TPM scheme should shift this balance in the Copyright Act.  The AUSFTA sets out specific exceptions and provides for the introduction of additional exceptions.

The specific exceptions to TPM liability are included in the exposure draft.  The exceptions included in the Bill are for:

• interoperability between computer programs
• encryption research
• computer security testing
• online privacy
• law enforcement and national security, and
• acquisitions by libraries and other related institutions.

A number of additional exceptions were identified in the Review of Technological Protection Measures Exceptions by the House of Representatives Standing Committee on Legal and Constitutional Affairs.  Some of these will be included in the Copyright Regulations.  An exposure draft of the TPM amendments to the Copyright Regulations is now available for public consultation (see top of this page).  Including the exceptions in the Regulations provides greater flexibility and improves the responsiveness of the scheme to changes in technology.  The Government proposes to introduce the following additional exceptions for:

• reproduction of computer programs to make interoperable products (as authorised by section 47D of the Copyright Act 1968 in so far as it applies to articles)
• the reproduction and communication of copyright material by educational and other institutions assisting people with disabilities (as authorised by Part VB, Divisions 1-3 of the Copyright Act 1968)
• the reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes (as authorised by sections 49, 50, 51A, 110A and 110B of the Copyright Act 1968)
• the inclusion of sound recordings in broadcasts and the reproduction of sound recordings for broadcasting purposes (as authorised by sections 107 and 109 of the Copyright Act 1968)
• access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided,  and
• access where a TPM damages a product, or where circumvention is necessary to repair a product.
• The scope of these exceptions will be clarified in the exposure draft of the Regulations which will be available for comment in the next month. 

Further review of exceptions

The Attorney-General’s Department is commencing a further limited review of the following proposed additional exceptions and would appreciate your comments by 25 September 2006.  The exceptions to be considered would allow circumvention to gain access for:

• making back-up copies of computer programs
• correcting errors in computer programs
• allowing institutions to assist people with an intellectual disability
• making copies of works for inclusion in broadcasts, and
• making copies of copyright material for criticism, review or news reporting by broadcasters.

If the need for these additional exceptions is substantiated in the review process the exceptions will be added to the Copyright Regulations. 

Further information about this review is available in the 4 September 2006 ‘E-news on Copyright’ which can be found on at http://www.ag.gov.au/copyright.

Next steps

The exposure draft of the Bill is available for comment for the next three weeks.  As the Bill is expected to be introduced into Parliament in mid October, comments on the exposure draft must be received by Friday 22 September. 

Please note that submissions supporting additional exceptions contained in the further review of exceptions must be received by Monday 25 September. 

Comments on the draft Regulations should be sent to the Attorney-General's Department by close of business 6 October 2006.