One of the passages in the recent High Court case on anti-circumvention laws (or the Oz-DMCA), Stevens v Sony which attracted a little bit of attention, even excitement from people I know the following part, from Justice Kirby’s judgment:

[216] The provisions of the Australian Constitution affording the power to make laws with respect to copyright operate in a constitutional and legal setting that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are.

[218] To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.’

But what do these passages really mean?

Is Kirby J trying to say that particularly nasty anti-circumvention laws – laws that prevented all access to copyright works without explicit permission, for example, would risk being held unconstitutional because they would be ‘beyond power’ – not supported by the Federal Parliament’s power under s 51(xviii) of the Constitution to make laws with respect to ‘[c]opyrights, patents of inventions and designs, and trade marks’?

Surely that cannot be what he means? While I would agree that anti-circumvention laws are ‘not copyright’, but rather, ‘paracopyright’ – above and more than copyright in the way that they operate – the idea that they are beyond that section of the Constitution would be difficult to make, I think. Constitutional powers, as the High Court pointed out in Grain Pool of Western Australia v Commonwealth of Australia (2000) 202 CLR 479 are construed ‘with all the generality which the words used admit’ (para 16, citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226). Disagreeing with the law or its scope doesn’t take it outside the power:

if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice’ (Leask v The Commonwealth (1996) 187 CLR 579 at 602)

If a law regarding circuit layouts (Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160), and a law regarding Plant Breeders’ Rights (Grain Pool of Western Australia v Commonwealth of Australia (2000) 202 CLR 479) are within the power, then paracopyright laws likely are too. As the court noted in Grain Pool, power under s 51(xviii) also includes ‘power, as the legislation upheld in Nintendo demonstrates, to determine that there be fresh rights in the nature of copyright, patents of inventions and designs and trade marks’ (Grain Pool, at [41]).

What is more, even if (and it’s a big if, given the above) paracopyright laws were not within the Copyright power, they would likely fall within the external affairs power (s 51(xxix)). The WIPO Copyright Treaty includes Article 11:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

As I understand it, we’ve not ratified that treaty yet (even though we are meant to, under the AUSFTA Article 17.1.4). The AustLII information indicates that we hadn’t, as at August 2005, and the DFAT site doesn’t say anything different. But I’m pretty sure we could, at a moment’s notice. And I don’t think any argument that our anti-circumvention law – either now or post-FTA implementation – ‘goes beyond’ what the WCT requires would fly, particularly if our law closely matches the US law and all the other countries that the US has forced into its model.

Nor, according to one of my constitutional colleagues here, would we be likely to be able to ‘read down’ the external affairs power using the copyright power – that would be contrary to long-established priniciples that the powers are read independently unless there is something specific to suggest a limit.

So, all that said, why these passages in Kirby J’s judgment?

Personally, I think that the key to what Kirby was saying lies in looking at (a) the material surrounding these passages, and (b) the journal article in the Media and Arts Law Review by Brian Fitzgerald, that Kirby J cites. The paragraph immediately preceding [216] is this one:

‘Ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual. The right of the individual to enjoy lawfully acquired private property (a CD ROM game or a PlayStation console purchased in another region of the world or possibly to make a backup copy of the CD ROM) would ordinarily be a right inherent in Australian law upon the acquisition of such a chattel. This is a further reason why s 116A of the Copyright Act and the definition of TPM in s 10(1) of that Act should be read strictly. Doing so avoids an interpretation that would deprive the property owner of an incident of that person’s ordinary legal rights. ‘

And then in between the two paragraphs [216] and [218] Kirby J refers to the principle ‘that fundamental rights will persist in the face of legislation said to be inconsistent with them “‘unless there be a clear and plain intention’ to extinguish such rights”.’

In other words, what Kirby J’s concerned with here is finding a reason to adopt a particular statutory interpretation – the narrow one, over the broad one (he has already said, earlier in the judgment, that he disagrees with the view of the Full Federal Court that the intended meaning is ‘clear’ on the history). He’s not concerned with principles which will lead to a finding that laws are unconstitutional – he’s concerned with principles that will justify him taking a narrow interpretation that he is not entirely comfortable with. I think that is as far as Kirby’s judgment really goes.

This ‘using fundamental rights to read down the statute’ is something we also see in Brian Fitzgerald’s article in the Media and Arts Law Review Article (March 2005). In that article, Brian makes arguments that broad readings of anti-circumvention law would ‘not fit’ with fundamental rights, and that that can be taken into account in construing the legislation. He argues that a narrow view fits better with principles about interoperability and fits better with ‘fundamental liberty to enjoy private property’. These, along with the arguments about the legislative history that I have previously made, justify a narrow interpretation.

That is as far, I think, as the ratio of Kirby J’s judgment goes. But could we go further? Fitzgerald does, arguing that:

‘…the right to hold property is a fundamental principle of democratic existence. In essence, a stable system of holding and recognising property entitlements is foundational to the workings of the Australian democratic system. The approach of the Full Federal Court ignores the pre-existing entitlements of the consumer who has lawfully acquired the PlayStation and the game accessory in favour of expanding the reach fo the exclusive rights of the copyright owner. This is very much a loss/gain scenario – a form of unjust enrichment – that may well fall foul of s 51(xxxi).

Brian is making two points here I think. One is that broad anti-circumvention laws conflict – seriously conflict – with the ordinary property rights of other people. The rights that the government has been concerned about (and asserted would be protected in the Senate Select Committee on the FTA, and implicitly put into their Terms of Reference to the Legal and Constitutional Affairs Committee by including region coding as an issue) – rights for people to make legitimate use of legitimately purchased copyright material. Rights that Rusty Russell has been talking about too. This is a really important point, I think, and it needs to be made and made repeatedly. It’s something that appealed to the conservative elements of Kirby J’s thinking too – conservative in the sense of protective of property rights. It’s an argument that takes us beyond touchy-feely lefty politics of the public domain, and makes us realise that copyright claims can interfere with others’ property rights.

There is a second aspect to Brian’s argument – that this interference with property rights may raise a constitutional issue under s 51(xxxi) of the Constitution. This is the constitutional provision that requires that when the Commonwealth acquires property, it must do so ‘on just terms’. Kirby certainly doesn’t entirely dismiss such an idea, with his footnote 163 which cites Lessig, and cites the very page where Brian makes the constitutional ‘just terms’ argument.

I’m a little uncomfortable with the ‘clinging to constitutional arguments’ approach that scholars and activists (and scholar-activists) sometimes adopt. For a long time in the United States, IP scholars have been pushing a certain line about the constitution, and constitutional limits on IP. Those arguments are centred around two things in the US constitution that are not found in the Australian constitution: a purposive copyright power (ie one that grants Congress power to make copyright laws, for a specific purpose), and a First Amendment right to free speech. Even in the United States, the constitutional arguments have been, for the most part, relatively unsuccessful. US Courts have often rejected ‘free speech’ limits (including on the DMCA in Corley), and famously rejected an argument that the terms of Article I made extension of copyright term unconstitutional in Eldred.

Surely, such constitutional arguments are likely to have less success here in Australia? The Australian constitution has neither of the elements which made the US ‘constitutional limits on copyright’ argument plausible. Of course, that is why Brian turns to the ‘acquisition of property’ argument. I can’t help but think the argument is weak. Maybe I’m wrong. I’d be interested to hear others’ views.

Personally, I’m inclined to think that the important point to take from Kirby J’s comments is the affirmation that there are limits in copyright, there are reasons for those limits, and one of those reasons is that copyright interferes with peoples’ property rights and their use of purchased materials. What the judgment of Kirby J – and indeed, the other judgments – highlight in Stevens v Sony is that we need to take a second look at laws that have that effect. And that claims by some commentators – that anti-circumvention laws are completely analogous to laws that make it illegal to break into a house to steal a book (arguments made most recently by CAL) – are just misconceived.

This doesn’t have to be a constitutional argument. The constitutional argument is, inevitably, weak. It is actually an argument about the proper limits and principles of copyright law. To paraphrase/alter unashamedly some arguments made by Bowrey and Rimmer quite some time ago now,

‘In touting [the constitution] as a superior body of law to [anti-circumvention law], and in developing the notion of [constitutional freedoms like property rights and free speech] … an analysis of the status of more conventional copyright principles seem to have fallen by the wayside. Incontestable copyright concerns such as for the idea/expression dichotomy, substantial part, limited terms and fair use, can, of course, be related to a [constitutional] story. However they need not be. The apparent removal of these from current jurisprudence requires judicial account. Academic lawyers should be mindful of this conventional jurisprudential detail, and not allow it to be lost in the intellectual excitement of leading “emerging” jurisprudence, in a highly charged litigation context.’

The comments by the High Court in Stevens v Sony usefully remind us that there are limit inherent in copyright law. And I think there is plenty of reason to think that the government is aware of the limits – with their comments that they don’t want to limit ‘legitimate use of legitimate products’. The important thing, now, is to use this awareness – by the High Court, and others – to make sure that the laws are drafted right in the first place.