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Well, it’s out. Yesterday, the House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures Exceptions. This is the committee set up to examine what exceptions should be created, as Australia implements Article 17.4.7 of the AUSFTA, which requires Australia to implement stronger anti-circumvention laws, more akin to the US DMCA.

And what a report it is. It has a list of 37 recommendations, many of which are concerned with protecting user interests. More over the fold. Among the recommendations are:

1. A recommendation that the implementation of the FTA ‘clearly require a direct link between access control and copyright protection’
2. A recommendation that ‘the Government ensure that access control measures should be related ot the protection of copyright, rather than to the restriction of competition in markets for non-copyright goods and services.’
3. A recommendation that region coding TPMs be specifically excluded from the definition of effective technological measure
4. A recommendation on allowing interoperability that allows for reverse engineering of software for interoperability purposes, circumvention for software ‘installed involutnarily or without accceptance, or where the user has no awareness a TPM or no reasonable control over the presence of a TPM’,
5. that the Government ‘monitor the potential adverse impact of threats of legal action being made against legitimate researchers in Australia conducting research into encryption … and other issues relating to computer security
6. That the government consult with the National Gallery of Australia and any other relevant institutions to identify an appropriate exception for TPM circumvention for remporary reproduction for exhibition and preservation purposes

A whole bunch of exceptions for:

1. making back up copies of computer programs
2. provision of materials to Parliament or for the Crown, and generally to allow ‘for the full range of government activity’
3. obsolete, lost, damaged, defective, malfunctioning or unusable software
4. where the amount of non-copyright material protected under a TPM is substantial.

AND there is a recommendation that the US nullify any agreements purporting to exclude/limit the application of permitted exceptions. Hello, CLRC. It’s fascinating that the CLRC’s Copyright and Contract Report (from oh, 4 years ago)- which made recommendations that contract should not be allowed to be used to avoid exceptions – is one report that representatives of the Attorney-General’s Department did not mention at the ACIPA Conference in February as being one the government were preparing to respond to. This recommendation puts the issue on the agenda. Again. As did the Digital Agenda Review report. Oh, 2 years ago.

In essence, it appears that the House of Reps Committee has been convinced by arguments put to it about the importance of maintaining the copyright balance in the Act, and accepted, too (rightly, in my view) that it’s role was not limited to the role taken on by the US Copyright Office in its triennial process.

No, user groups can’t dance in the streets at this stage. These are recommendations: implementation is for the government and is the next phase.

But this unanimous report puts the ball squarely in the government’s court. Two arms of government have now spoken: the High Court of Australia, and a committee of the Parliament. Both have affirmed that copyright law must be balanced; that anti-circumvention laws should be matched to copyright rights, rather than overly extending them . How will the executive react?

update: I should note that there will be real questions about how much of what is proposed in the report can be done consistent with the AUSFTA. I expect there will be debate about that, although we must also assume that the Committee have been advised about and discussed those issues, and the recommendations do differentiate between situations where they think their proposal is allowed, and situations where they are less sure. The broad thrust, of preserving the Australian exceptions regime, is, however, significant.

I’ve not had a chance to digest this 162 page report. As I do, I will comment further.

Update 2: The commentary is starting to emerge:

1. Josh Gans comments here on the region-coding bit.
2. Michael Geist here (Canada)
3. Warwick Rothnie here
4. EFF here
5. Groklaw here
6. Boing Boing here