Researchers, schools call for flexible copyright rules

Education institutions have urged the Federal Government to introduce new ways of circumventing copyright enforcement technologies.

Submissions to the Attorney-General's Department from groups representing Australian universities and schools called for more exceptions to the technological protection measures (TPM) regime, which allows users to bypass region-coding on DVDs.

It comes as part of the Attorney-General Department's review of allowances for circumventing such technologies under current legislation, a measure first introduced in 2006.

The current exceptions revolve around those enforcement technologies that control geographic segmentation as well as those restricting the use of after-market goods or services.

The review specifically targets exceptions related to "bypassing, disabling or otherwise circumventing" an enforcement method.

But submissions to the review warned that the current exceptions had failed to keep pace with newer technologies aimed at preventing copyright theft, and the regime had, in the view of the Pirate Party of Australia, largely failed.

Education groups sought to strengthen existing exceptions allowing the reproduction or re-use of copyright material by education and disability assistance institutions, as well as libraries, archives and cultural institutions.

Universities Australia said in a submission that newer technologies and digitised content meant that "rights holders — not courts — are determining the scope" of the regime.

"This is preventing universities from complying with statutory obligations to ensure that sight and hearing impaired students have access to course content in formats that are accessible to them," it said (pdf).

"It is also creating disincentives to the use of the most efficient ICT technologies by universities."

The existing measures, it argued, had not taken into account the increasing move to protected digital formats such as commercial DVDs, e-books and online video, a move the body said was shortchanging universities of the $4.5 million annual license fee they currently pay for such use.

"It is no exaggeration to say that the anti-circumvention regime has enabled copyright owners to use TPMs to rewrite the copyright balance," it said.

A separate submission from the copyright advisory group to the joint government committee on education argued the "practical scope of these exceptions is actually shrinking" as a result of the new technologies, providing teachers and students with fewer options to use copyright material (pdf).

Both bodies suggested including new exceptions permitting circumvention of such copyright enforcement measures, or enabling use of copyrighted works, for educational institutions.

They urged the government to more closely consider exceptions allowing for fair or flexible dealing of copyrighted works, a move called for by copyright experts but likely to fall under the purview of a separate review into copyright reform, rather than this inquiry.

IP geoblocking

Consumer representative body CHOICE (pdf) used the department review to echo calls for the Government to review the potential removal of IP-specific geographic blocks placed on websites or online stores.

The call, initially made in a parliamentary inquiry into IT pricing, would require US or companies placed elsewhere to provide Australians with access to the same content as elsewhere, at potentially the same prices.

Examples raised in the past have focused on US-based video streaming sites such as HBO and Netflix, which currently block Australian users from accessing the services based on the users' IP address.

"CHOICE believes that the use circumvention measures to buy or access genuine products and services online are perfectly legitimate," it said in a submission.

"CHOICE believes that if a copyright holder knowingly and willingly provides any product or service to the market online, then Australian consumers should be allowed to access those products and services at the price they are sold even if this requires the use of circumvention devices or services.

"Consumers should also be confident that the practices they are engaging in are legal."

TPM failure

The Pirate Party of Australia called for more significant exceptions allowing Australians to circumvent copy protection technologies to make backups of legitimate materials, while permitting "unrestricted format shifting" (pdf).

The initial introduction of format shifting in 2006 was one means of defence for Optus for its TV recording software, TV Now. While initially successful on this ground in the Federal Court, it later lost an appeal by sporting bodies in the case, and then was refused an appeal to the High Court.

"Technology makes it increasingly easier for consumers to access content at numerous locations, yet the law has fallen behind on protecting the benefits these developments bring. Instead of protecting the public's interests it unnecessarily prevents legitimate acts," the Pirate Party said in its submission.

"Technological protection measures are intended to prevent individuals from committing unauthorised acts which would constitute copyright infringement ... in reality, TPMs often fail to be significant deterrents for those committing such acts."

But copyright proponents suggested the scheme as it currently stood did not require any changes.

Separate submissions from the Australian Copyright Council as well as film and TV representative body the Australian Federation Against Copyright Theft argued that the existing regime was "fair, workable and strikes an appropriate balance between interests of those legitimately seeking access to copyright material and the interests of those whose businesses and livelihoods depend on the protection of copyright material against unauthorised activity" (pdf).

Both submissions stated that the exceptions should remain as they are, rather than being changed significantly.

The review, alongside a more wide-ranging copyright inquiry by the Australian Law Reform Commission, have led some to push for a more flexible regime, one they would say would promote innovation in technologies in Australia, while proving beneficial to the economy.

A report released this week by the Australian Digital Alliance said the economic benefits of a less rigid regime would be in the order of $593 million per year on conservative estimates.

However, AFACT chief Neil Gane refuted the report as having "no evidentiary foundation for its conclusions and its exaggerated finding of benefit to the economy".

"The paucity of evidence within this report to justify this claim is staggering. These assumptions underpinning the report have already been contradicted by work of a director of the ADA, Kimberlee Weatherall," said Gane, pointing to a 2005 paper (pdf) by the legal academic on the issue.