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Last week, a review was announced dealing with the drafting of Australia’s new anti-circumvention laws. For those who joined us late, basically, anti-circumvention laws are laws which seek to control how people interact with technologies used by copyright owners to control use and/or access to copyright-protected material. We have to draft new laws, to replace the current law in s 116A of the Copyright Act, because of the AUSFTA, Article 17.4.7. Article 17.4.7 is based on the US law, the DMCA.

So we’ve all had a chance now to look at the Terms of Reference on TPMs. So what’s happening, and how is this all running?

The important thing is that the review by the Legal and Constitutional Affairs Committee of the House of Representatives is, apparently, a narrow one. They are dealing with just one question: that is, what exceptions are required in addition to those exceptions specifically allowed by the AUSFTA. What kinds of things might we be talking about here? Well, they would include:

1. exceptions for educational institutions, libraries, archives and galleries beyond the ability to circumvent to make ‘acquisition decisions’ (deciding whether you want to buy something or not)
2. exceptions for overcoming region coding or making legitimate use of legitimately purchased copyright materials (to the extent that an exception is needed here)

By limiting the Terms of Reference to the question of additional exceptions, the LACA is left out of a number of other, important issues in the drafting of the Oz-DMCA, including specifically:

1. What ‘counts’ as a TPM
2. What counts as a circumvention device – what technologies won’t be allowed to be distributed and/or used?
3. How will the exceptions actually allowed under the AUSFTA be drafted?

It would seem that there has been a decision that these matters are too technical/difficult for discussion in the LACA. They are instead being dealt with by the Attorney-General’s Department. This of course is going to make it difficult to draft a sensible submission to the LACA on exceptions – how do you draft a submission on exceptions when you don’t know what the exception is to?

On the other hand, the LACA is a lay-person/generalist Parliamentarian committee. This will impact on the nature of any submissions to be made to the committee. From our experience in the FTA discussions, this stuff is hard to explain.

People contemplating making a submission have to think about what activities they need to be able to do which might be impacted by TPMs. That should be the upfront thing in any submission. It will be most convincing, and is most likely to elicit a response.

To the extent that those activities wouldn’t (or shouldn’t) be a breach of the Oz-DMCA provisions, that is a matter for AGs, who will no doubt be monitoring any submissions made to the Committee.

Happy submission drafting!