Bypassing DRM May Be Legalised
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Time Shifting, Format Shifting and Place Shifting may all be legalised in Australia if the recommendations of a House of Representatives Standing Committee are accepted by the Government.

The changes would not only allow for the bypassing of DRM [which the Committee describes as Technological Protection Measure or TPM], but circumvention of Region Encoding could also be permitted under any new fair use provisions.

Further, the Committee noted the dangers of encoded Spyware and in particular the Sony Rootkit controversy and recommended that circumvention of protection should be permitted to mitigate the dangers caused by such TPMs.

In its report the Standing Committee on Legal and Constitutional Affairs endorses a number of exceptions which were proposed during the course of its inquiry.

The inquiry came about as a precursor to the changes required to the legislation covering the circumvention of electronic copyright protection as required under the Australia US Free Trade Agreement (AUSFTA).

The Standing Committee was investigating the affects of the AUSFTA with specific focus on the circumstances under which circumvention of copyright protection measures should be permitted

Under that agreement Australia is required to implement a liability scheme to prevent the unauthorised circumvention of technological protection measures (TPMs) placed on electronic copyright material by copyright owners to control access.

However, some specific exceptions will be permitted such as to support reverse engineering for research, to enable interoperability of computer software, for archival and education purposes and so on.

“Many exceptions were put forward during the inquiry and the Committee has concluded that several are warranted, including exceptions relevant to important sectors of Australian society and the economy such as education, libraries and cultural organisations, the information technology industry, broadcasting, and government,” Committee Chairman Peter Slipper said.

The report recommends that region coding on DVDs should not come within the liability scheme as the Committee was not persuaded it is “essential for piracy prevention or that it is a genuine copyright protection,” according to Slipper.

Although the committee’s recommendations are just that, recommendations, it signals a willingness by legislators to free up some of the restrictions which are currently at odds with widespread practice.

Although the Attorney General’s Department is currently undertaking a review of the Copyright Act 1968, it is presently against the law for consumers to video tape TV shows [Time Shifting], copy legitimately acquired digital music onto an MP3 player [Format Shifting] and other so called “Fair Dealing” uses.

A specific exception was proposed to the Committee for circumventing TPM for the purposes of format shifting copyright material. In its report the Committee noted that while format shifting and time shifting are currently an infringing use of copyright material under the Act, it was not able to recommend an exception for such use.

It did however note that, should the Government review of fair dealing contain an exception for format shifting [which the Committee supports], then it would support moves to allow an exception to the circumvention laws to enable this.

This would put Australia in a different legislative framework than currently exists in the US where format and time shifting is legal, but under the Digital Millennium Copyright Act of 1998 circumvention is [somewhat ironically] not permitted to achieve it.