Peter Slipper (Fisher, Liberal Party) Share this | Hansard source

On behalf of the Standing Committee on Legal and Constitutional Affairs I present the committee’s report entitled Review of technological protection measures exceptions, together with the minutes of proceedings.

Ordered that the report be made a parliamentary paper.

by leave—On 19 July last year, the Attorney-General asked the committee to inquire into and report on the issue of technological protection measures exceptions under the Australia-United States Free Trade Agreement. Technological protection measures, or TPMs, are software or hardware components used by copyright owners to control access to copyright material or its reproduction. Examples of TPMs include software encryption, region coding technology and passwords. Under Australian copyright law TPMs are a legitimate response by copyright owners seeking to protect their intellectual property from infringement. TPMs can also be disabled or circumvented by a range of means, including the use of computer programs or devices.

Article 17.4.7 of the free trade agreement requires Australia to create a statutory liability scheme for certain activities relating to the circumvention of TPMs. The article also specifies a number of exceptions to this liability scheme and contains a provision which enables Australia to introduce further exceptions to liability under certain circumstances. The focus of the inquiry by the committee was the question of whether any further exceptions under this provision are warranted within the parameters set by article 17.4.7. The committee also examined other issues relevant to article 17.4.7 that were raised in the evidence.

It is worth noting that the committee faced considerable difficulties in conducting this inquiry. The legislation which will implement article 17.4.7 does not yet exist, and there is very little information on the particulars of this legislation. Indeed, the government still has several months of policy development and consultation to go before the legislation is drafted. Crucial definitional issues remain to be settled, and no interested parties are able to at this stage demonstrate actual adverse impacts as a result of the liability scheme. All of these factors significantly complicated the work of the committee. This said, the committee has assessed the exceptions put to it and has also sought to develop a rigorous interpretation of some of the key requirements for further exceptions under article 17.4.7.

Of the many exceptions proposed during the course of the inquiry, the committee has concluded that several are warranted, including exceptions relevant to important sectors of Australian society and the economy such as education, libraries, cultural institutions, the information technology industry, broadcasting and government. It was also clear from the evidence that the exceptions currently permitted under the Copyright Act 1968 are important and ought to be maintained, and the committee has recommended accordingly. The committee has further recommended that the balance between copyright owners and users achieved by the act should be maintained upon implementation of article 17.4.7.

Region coding of copyright material—used on DVDs, for example—emerged as a prominent issue during the course of the inquiry. While region coding is entirely lawful, the committee was not persuaded by arguments that it is essential for piracy prevention or that it is a genuine copyright protection, nor does the committee see why consumers should be further restricted from enjoying lawfully acquired copyright material. The committee has therefore concluded that the unauthorised circumvention of region coding TPMs should not attract liability under the new scheme. Region coding TPMs should be excluded from the operation of the scheme. If they are included, exceptions proposed in the future for circumventing region coding TPMs should be permitted where they meet the relevant requirements.

I would like to take this opportunity to thank all those who, in writing or in person, were able to provide their views on TPM exceptions to the committee. The committee appreciated both the quality and quantity of evidence received from a range of groups and individuals in relation to this highly technical and complex inquiry. As chairman of the committee, I would like to thank the inquiry secretary, Dr Nicholas Horne, the committee secretary, Mrs Joanna Towner, and the secondee from the Attorney-General’s Department, Ms Kirsti Haipola, for their assistance.

The committee brought down a unanimous report. That is a fairly powerful indication of how the members feel about the recommendations. The committee believes that its recommendations will materially assist the government in the formulation of the legislation implementing article 17.4.7 and will help to ensure a sensible and balanced liability scheme. The committee is pleased to have had this opportunity to contribute to this evolving area of intellectual property law under the Australia-United States Free Trade Agreement. I commend the report to the House.

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