IF you'd like some insight into some of the dark room politics behind the changes to Australian copyright laws associated with the Australian government's free trade agreement with the US, IP academic Kim Weatherall has some details and she also has some serious concerns about the outcomes:
"when you play a pirate DVD, you are infringing copyright. This was new, of course. Usually, the purchasers of infringing copies are not infringers themselves. Suddenly, all kinds of consumers caught by the Copyright Act, when they weren't before. The Senate Select Committee was worried, saying (at para 3.200):
"[The Committee is] particularly concerned about the 'exception to the exception' anomaly which could lead to end users of infringing materials becoming infringers in their own right. This is a significant, perhaps unintentional, extension to the scope of copyright law in Australia. The Committee understands that removal of proposed subsections 43B(2) and 111B(2) would not be prevented by the AUSFTA."
They were rightly worried. The inclusion of "temporary copies" means that all the copies made in a Sony Playstation Console, or DVD player, are now within the exclusive rights of the copyright owner. The "exception to the exception" means that copyright owners can argue that playing an unauthorised game, or unauthorised copy of a movie, is an infringement. And that is important because that is exactly what has been argued in the Sony v Stevens litigation. If playing unauthorised games leads to infringements, then technological protection measures (TPMs) which prevent the playing of unauthorised games are preventing infringement. And suddenly the anti-circumvention laws - the laws that make it illegal to 'break' TPMs - have a much broader reach.
With the new Copyright Amendment Bill, this concern has been ignored. In fact, the 'exception to the exception' has been broadened. In other words, even more things will now be infringements than were before - despite what the Senate Select Committee said...
...OK. Now, I could be wrong here, but doesn't the text go further than that? Doesn't the text mean that the Government is proposing to strengthen the hand of copyright owners in preventing parallel importation, contrary to the whole policy of the government for the last few years? As I read it (please, correct me if I'm wrong), this means that if A makes an authorised copy of copyright work X in Indonesia, but B owns the copyright in X in Australia, and I buy the copy of X in Indonesia from A, and bring it to Australia, and play it in my machine, and a temporary copy is made, I'm infringing. Because if A had made the copy in Australia, they would have been infringing. Looks like strengthening the ability of copyright owners to engage in market segmentation to me. And, if I import copies from A into Australia (even if that is allowed under parallel importation law), I might be authorising infringement because all the temporary copies made by my customers are infringements."
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