Recent developments in relation to the enforcement of copyright in the United States and the United Kingdom have highlighted the fact that individuals now have a capacity to make and exchange digital copyright material on the Internet.
This is challenging the ability of owners and governments to police and control infringement and illegal production. However, in Australia, the law is at the cutting edge of copyright protection.
The Copyright Amendment (Digital Agenda) Act 2000, which commenced on 4 March 2001, includes reforms to ensure the provision of strong new rights and enforcement measures for copyright owners in the digital environment.
The UK has taken the step of increasing the maximum penalty for copyright piracy to ten years imprisonment.
In the US, a draft Bill has been introduced into the US House of Representatives which proposes to grant immunity to copyright owners if they disable, block or otherwise impair, a publicly accessible peer-to-peer (P2P) file trading network. The approach taken in the US Bill also raises important concerns in relation to other areas of the law such as privacy and interference with computer networks. In Australia, the new rights implemented by the Digital Agenda Act include strong enforcement measures against devices and services designed to circumvent the technological protection measures used by copyright owners to protect their copyright material.
Civil remedies and criminal sanctions are provided against anyone who manufactures, supplies, advertises or makes available online a circumvention device that can circumvent a 'technological protection measure' protecting a copyright work.
The Digital Agenda Act recognises that the copyright owner's exclusive right of reproduction includes the right to digitise their copyright material and provides the potential for increased damages for copyright infringements involving unauthorised digitisation.
It also clarifies the legal position of service providers for third party infringements committed using their facilities. Some of these provisions also apply more generally to persons other than service providers. As a result of the amendments it would be open for a court to find that a P2P service authorised the infringement of copyright by its users.
The Government has made a commitment to review the operation of the Digital Agenda Act by 4 March 2004. This recognised that the amendments were at the cutting edge of copyright reform. The commitment also acknowledged the challenges posed to copyright law as new technologies continue to rapidly evolve.
The Digital Agenda Act and the three-year review of its operation demonstrate the Government's commitment to a balanced and workable copyright regime for the digital age that encourages creativity and innovation while maintaining reasonable access to copyright material.
The whole issue of copyright is getting out of hand. On the one hand you have companies like IBM pumping out thousands of Patents every year to lock away every idea that might ever be thought of, on the other you have legions of Napster-ites flogging the latest movies and CDs on-line before they hit the cinema.
In the US it is now illegal to even research the protection used in a device on the grounds that such behaviour is tantamount to piracy.
Companies like Sony are trying to stop users from modifying their hardware to play content other than officially licenced Sony discs. They are starting to apply usage licences to ordinary consumers that mimic commercial agreements.
Imagine being sold a vacuum cleaner with a licence that allowed you to use it on only one brand of carpet or vinyl flooring. And imagine being sued if you modified it to work on some other brand - in fact, in the US you could be sued for simply trying to figure out what the protection device was that stopped it working on other products.
Copyright needs to be protected, but I'm not sure we've got it right just yet.