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So I’ve been giving some thought to this question of – apart from the exceptions specifically allowed by Article 17.4.7 of the AUSFTA, just what additional exceptions might be required? You may recall that it is only to this, limited question that the Terms of Reference of the LACA refer.

So I thought, well, how might we start thinking about that? And I thought – well, why don’t we look at what the US has itself allowed as additional exceptions. That is at least a start. You see, in the US, when the DMCA was drafted, they created a process whereby every 3 years the Copyright Office would consider whether there were legitimate, non-infringing uses that were being adversely impacted by TPMs, and would consider whether new exceptions should be created to ensure an end to such adverse effects. There have been two such rule-makings already (in 2001 and 2003). The next is due in 2006.

And here’s what the rule-makings have come up with. The list, by the way, comes from a recent, comprehensive article by Jane Ginsburg on the DMCA and its interpretation in the US:

1. “compilations consisting of lists of websites blocked by filtering software applications”
2. “literary works, including software and databases, protected by access control mechanisms that fail to permit access becasuse of malfunction, damage or obsolescence”
3. “computer programs protected by dongles that prevent access due to malfunction ro damage and which are obsolete”
4. “Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access”
5. “literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made availbael by authorized entities) contain access controls that prevent the enabling of the e-books’ read-aloud function and that prevent the enabling of screen readers to render the text into a ‘specialized format’.

OK, so the first thing that strikes me about that list is how amazingly anal the drafting of these exceptions is. To use some words of Laddie, in a different context:

‘Rigidity is the rule. It is as if every tiny exception to the grasp of the copyright monopoly has had to be fought hard for, prized out of the unwilling hand of the legislature and, once conceded, defined precisely and confined within high and immutable walls.’ (Laddie, ‘Copyright: Overstrength, Overregulated, Overrated’ [1996] 18 EIPR 253, 258).

Fortunately, it seems to me that while the US Copyright Office, responsible for drafting these exceptions, might have taken the view that its mandate was limited, the mandate given to the Legal and Constitutional Affairs Committee is a broader one. The only real constraint is that exceptions must be consistent with the FTA. Being a Parliamentary Committee, it is appropriate that the Committee be prepared to exercise its law-making power in ways the US Copyright Office might refuse to do. This is not an administrative process – this is Parliament deciding on the proper scope of the law for Australian purposes.

The second thing that is striking about these exceptions is the number of them that are concerned with malfunction or obsolescence of technology (Ginsburg comments on this too, at page 23 of her paper). 2, 3, and 4 are all to do with this issue.

That’s really interesting, because it just so happens that when I was asked about the TPM review at the Copyright and Cultural Institutions Conference on Friday, the question that was asked of me was basically this: what if the technology goes out of date? Are there exceptions to allow circumvention of old, out of date, or malfunctioning technology?

It would probably surprise many to realise that the need to circumvent because of malfunction or obsolescence of TPMs was not one of the original exceptions drafted into the US DMCA. They have suffered the consequences, having to have this matter put forward in both reviews by the Copyright Office. Let’s hope that might be one of the exceptions considered by the LACA. Remember, too, that while in Australia we have (like the US) to review our exceptions periodically, we are not required to make those exceptions expire (unlike the US)!

There are two exceptions created by the US Copyright Office which have nothing to do with obsolescence. The first (number 1 above) is all about filtering/censorship technology. That’s a very American concern, but one which could also end up being live here. The last exception really concerns issues for disabled people (something mentioned in the LACA terms of reference, by the way).