There has been a lot of media attention in recent weeks about moves in the United States and United Kingdom to tighten copyright laws to increase the armoury of copyright owners in their fight against piracy. For example, the UK has recently increased the maximum penalties for copyright piracy to ten years imprisonment.
Perhaps more significantly, a draft Bill has been introduced into the US House of Representatives which would grant immunity to copyright owners under US State and Federal laws (subject to certain conditions) if they disable, block or otherwise impair a publicly accessible peer-to-peer (P2P) file trading network. In his speech to the House, US Representative Howard Berman suggested that the technological self-help measures the Bill would permit include using interdiction, decoys, redirection, file-blocking, spoofs and other technological tools.
Rep. Berman stated that the Bill, which enables 'responsible usage of technological self-help measures' is part of a broader solution to P2P piracy. Other elements of this solution were stated to be wider online deployment of legitimate copyright works in user-friendly ways, digital rights management technologies and lawsuits and prosecutions against infringers.
Although there has been no suggestion that a similar bill would be introduced in Australia, there is little doubt that Australian copyright laws have been significantly strengthened to deal with online copyright infringements. In fact, many elements of the P2P solution advocated by Rep. Berman already attract serious protection under Australian copyright laws.
The Copyright Amendment (Digital Agenda) Act 2000 (Australia's equivalent to the controversial US Digital Millennium Copyright Act) granted new enforcement rights to copyright owners on the Internet, including the possibility of additional damages for infringements involving the 'first digitisation' of copyright works, and criminal penalties for certain dealings with devices designed to circumvent the technological protection applied by copyright owners to their works. The Act also provided additional clarity as to when a P2P operator may be liable for copyright infringements committed by users of its networks.
For example, the Digital Agenda Act made it a criminal offence attracting a potential 5 year jail term for anyone who manufactures, supplies, advertises or makes available online a circumvention device (including computer code) that can circumvent a 'technological protection measure' protecting a copyright work.
The strength of these new laws was recently tested by the Federal Court in a case involving the access coding system on Sony PlayStation games and consoles. Whilst Sony was unsuccessful in arguing that supplying and installing 'modchips' for PlayStations infringed the new laws, the case hinged on a technical question of whether the access coding used by Sony was a 'technological protection measure' for the purposes of the Copyright Act (answer: no, because the access codes did not directly prevent an actual copyright infringement).
However, the Sony case left little doubt that the Digital Agenda Act would allow copyright owners to take action against the creators of devices that circumvent technologies that prevent the direct copying or communication of copyright works.
Developments overseas and the provisions in the Digital Agenda Act serve as an important reminder that the Internet is not a copyright-free zone, and copyright laws provide powerful tools for copyright owners wishing to enforce their rights online.
Carolyn Hough is a senior lawyer with Minter Ellison Lawyers who specialises in intellectual property in the Internet age.
