DRM and the Reform of the Australian Copyright Act
Some time ago I attended a street corner meeting with my local federal member Kate Ellis and I raised with her the issue of DRM. I wanted to see if there was anything she could do on my behalf to try and avoid the train wreck I can see coming.
For those not familiar with DRM it is basically a way of preventing music from being played on different devices. For instance if I buy a song on the iTunes music store and I then want to use it on any other MP3 player than an iPod, I can’t. This means that I am locked in to buying only Apple iPod music players rather than deciding for myself what the best player is. It also means that at any time Apple can control what I can and can’t do with the music I have purchased from them.
This week I received a response via Kate Ellis from Phillip Ruddock the federal Attorney General regarding my query:
Dear Ms Ellis
I am writing in response to your letter dated 29 June 2006 to Senator the Hon Helen Coonan, Minister for Communications, Information Technology and the Arts, concerning copyright legislation before the French Parliament. Senator Coonan referred your enquiry to me as the Minister responsible for copyright law.
The Government is generally aware of the proposed French DADVSI law reforms or the “ipod laws,” particularly as they relate to interoperability and information technology. I understand that the stated objectives of the DADVSI laws are to adapt the French copyright regime to new uses, including interoperability, strengthen rights against digital piracy, facilitate access to works for some users and to strengthen the French Ministry of Culture and Communications’ powers to manage copyright and performing rights.
As regards interoperability, I note that there is an existing exception under section 47D(1)(d) of the Copyright Act 1968 for the reproduction of computer programs for the purposes of interoperability. However this exception does not extend to other forms of copyright material, in particular to music and sound recordings, in the same way that I understand the French DADVSI law reforms propose to.
The Australian Government has no immediate intention of introducing reforms like the DADVSI laws in Australia, but we will monitor their progress. However, the Australian Government will soon be introducing a number of important reforms to the Copyright Act. These reforms will strengthen the enforcement measures in order to address increasing piracy and will also legalise some forms of copying by consumers, including ‘format shifting’ of legitimately acquired music.
I attach my media release of 14 May 2006 and an overview of the proposed reforms. I hope these will be of assistance in responding to your constituent.
The action officer for thismatter in my Department is Lauren Henschke who can be contacted on XXXX-XXXX.
Yours Sincerely
(signed)
Philip Ruddock
With the letter was a media release on the new laws issued on the 14th of May which is too long to reproduce in full (the complete release can be found here) but I thought that there were a few sections that were interesting:
The changes will, for the first time:
- Make it legal for people to tape their favourite TV or radio program and play it at another time
- Legalise ‘format shifting’ of material such as music, newspapers, books – meaning people can put their CD collection onto IPods or MP3 players
- Provide new exceptions allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes
- Provide new exceptions for people with disabilities to allow access to copyright materials
- Allow the use of copyright material for parody or satire
- Provide new enforcement measures to combat copyright piracy including onthe-spot fines, proceeds of crime remedies, a change in presumptions in litigation to make it easier to establish copyright piracy
So “format shifting” is being legalised. Format shifting is defined a bit further down:
Format-shifting means copying material from one format to another. Formatshifting may be done to take advantage of new technology (eg. dubbing a video tape to DVD) or to enjoy the material in different locations (eg. transferring music from CDs to a portable MP3 player).
OK so does converting a song purchased at the iTunes Music Store into another MP3 format so that you can download it into the cheap MP3 player you bought at the gym constitute “taking advantage of new technology” or “enjoying the music in a different location” ? I don’t think the release is clear.
In another part of the release it says:
The second exception will permit a person who has purchased a legitimate copy of some categories of copyright material to make a copy in a different format. In particular, this exception will allow individuals to store their personal music collection recorded on CDs, audio tapes or vinyl records in the memory of an MP3 player or home entertainment personal computer. It will also allow people to scan an article from a newspaper they have purchased to save on their computer (although they will not be able to upload it onto the internet). People also will be able to dub their old VHS cassettes onto a DVD.
The Government is mindful consumers may want to use technology to copy audiovisual material (eg. DVDs they have bought) to other devices as well. The Government will monitor the implementation of the scope of the format shifting
exception to review in two years’ time, whether the scope can be expanded to digital audio-visual materials in a way which complies with our international obligations.
This suggests that the protections do not apply to audiovisual materials but that I can copy my CD’s onto my PC and my iPod. It is still not clear whether stripping the DRM off a song and putting it on another type of player is illegal. The phrase “international obligations” is also ringing alarm bells with me:
There will be separate legislation this year dealing with Australia’s remaining obligations under the Australia-United States Free Trade Agreement concerning the liability regime for circumvention of technological protection measures. This issue is under active consideration by the Government.
So does this mean that because of the free trade agreement we will be subject to DMCA style restrictions in Australia? I hope not.
In the Q and A at the bottom of the release we find the follwing 2 points (other points removed for brevity)
Copying music in different formats
1. Will I be able to copy my music collection?
Yes. You can format-shift your music collection from CDs, audio tapes and vinyl records to devices such as an MP3 player, X-Box 360 or home entertainment PC, but only if the original is a legitimate copy that you own and you format-shift for your personal use in a different audio format.
…9. What if my CD has copy protection applied to it?
The Government is still considering this issue of copy protection.
A “different audio format”. What will they consider to be “different”? There is no mention. Also they say that the jury is still out on copy protection.
I have 2 questions for Mr Ruddock:
- Will it be legal to circumvent DRM copy protection in order to play DRM protected content on a different device than the one intended by the content vendor as long as it is for personal use?
- Will he make it illegal for the copyright owner to prevent me from format shifting the copyrighted material?
If he agrees to the first and not the second then we are stuck with pretty much the status quo of the crackers coming up with ways to circumvent copy protection and the copyright owners coming up with new ways to defeat the crackers in a cycle of hack and counter hack. If Australia actually makes it illegal it drives a technological imperative for companies like Apple, Microsoft and Sun to come up with technology solutions to allow me to use the content I have purchased in a reasonable manner without giving free reign to copyright pirates.
