Submissions are starting to find their way onto the website of the Legal and Constitutional Affairs Committee website. That committee is doing an inquiry into the exceptions that should be provided to the new anti-circumvention laws which must be enacted in Australia as a result of the Australia-United States Free Trade Agreement.

In its submission in the fair use/fair dealing inquiry, The Copyright Agency Limited (CAL) found history, harking back to the invention of the wheel, which it appears CAL did not realise was a recent Australian invention, which received an Innovation Patent.

Now it’s serious. CAL have found religion:

…it is the simple foundation principles that matter most.

The principles are those we were taught from childhood. They have been core planks of legal, ethical, and religious frameworks from the 10 Commandments ‘ thou shalt not steal’ around 1400 BC and the Buddhist Five Precepts of morality, panca-sila, laid down over 2,500 years ago which includes abstinence from taking what is not given, to current anti-theft laws.

The principles are permission and respect. Don’t take without permission and respect the property of others.

That, in a nutshell, is what this investigation is all about.

You know, it’s not even worth beginning on this from a substantive perspective. Of course, I will anyway.

How about other principles? Like, say,

  • ‘If I have been able to see further, it was only because I stood on the shoulders of giants’ (Sir Isaac Newton, 1675 (pointing out that access to existing knowledge is essential for innovation);
  • ‘He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.’ (Thomas Jefferson, 1813, pointing out that there is nothing ‘natural’ about property in ideas).

Too recent? Hmmm, ok, what about we go back to this ‘property’ idea. What about other people’s fundamental rights in property? For example, what about the ‘legal rights of the owner of a Sony CD ROM and PlayStation console to copy the same for limited purposes and to use and modify the same for legitimate reasons, as in the pursuit of that person’s ordinary rights as the owner of chattels’ (Kirby J, Stevens v Sony at [213]). OK, so looking just at fundamental rights to Sony PlayStation games probably isn’t really to call on fundamental and ancient privileges. But you can’t ignore the fact that, in reality, granting rights in copyright is an interference in the ‘natural’ rights of individuals to do what they like with their own physical and legitimately acquired property. Including books. Including PlayStation games.

If copyright owners didn’t use TPMs to interfere with other people’s rights – rights to make fair dealings; rights of libraries to give casual visitors access to databases (rather than restricting access only to students); and consumers’ rights to play legitimately purchased material on legitimately purchased devices, this would indeed be a much simpler issue and a much simpler inquiry. If the issues are complicated, it is because TPMs are not only used for such purposes. They are used, in fact, to ‘extend the copyright monopoly rather than match it’ (Gleeson CJ et al, Stevens v Sony, at [47]). And that’s where the problems begin.

Let’s make this clear. I’m not saying copyright owners don’t have rights to use TPMs to protect their legitimate interests. Of course they do. But at least some of the opposition to TPM law lies in the very simple fact that the broad rights it tends to grant tend to be abused by some copyright owners. Some discretion in drafting, and some exceptions are required to make sure this kind of thing doesn’t get out of control. And pretending this is all really simple? That’s just not correct.