AFACT AHEDA - Attorney-General's Department

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BY EMAIL: copyright@ag.gov.au 

8 October 2012 

Government Copyright and Reviews 

Business Law Branch 

Australian Government Attorney-General's Department 

3-5 National Circuit | Barton ACT 2600 

REVIEW OF TECHNOLOGICAL PROTECTION MEASURE EXCEPTIONS UNDER THE COPYRIGHT ACT 

1968 SUBMISSION BY AFACT AND AHEDA 

The Australian Federation Against Copyright Theft (AFACT) and Australian Home Entertainment Distributors 

Association (AHEDA) provide this submission in response to specific proposals for reform filed by interested 

parties in response to the Attorney General’s Review of Technological Protection Measure Exceptions under 

the Copyright Act 1968 (Cth) (the Review). 

Australian Federation Against Copyright Theft 

AFACT was established in 2004 to protect the film and television industry, retailers and movie fans from the 

adverse impact of copyright theft in Australia. AFACT works closely with industry, government and law 

enforcement authorities to achieve its aims. 

AFACT acts on behalf of the 50,000 Australians directly impacted by copyright or intellectual property (IP) 

theft including independent cinemas, video rental stores and film and television producers across the country. 

AFACT members include: Village Roadshow Limited; Motion Picture Association; Walt Disney Studios Motion 

Pictures Australia; Paramount Pictures Australia; Sony Pictures Releasing International Corporation; 

Twentieth Century Fox International; Universal International Films, Inc.; and Warner Bros. Pictures 

International, a division of Warner Bros. Pictures Inc. 

Australian Home Entertainment Distributors Association 

The AHEDA represents the $1.3 billion Australian film and TV home entertainment industry covering both 

packaged goods (DVD and Blu-ray Discs) and digital content. AHEDA speaks and acts on behalf of its 

members on issues that affect the industry as a whole such as: intellectual property theft and enforcement; 

classification; media access; technology challenges; copyright; and media convergence. AHEDA currently has 

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Australian Federation Against Copyright Theft Ltd. ABN: 56 106 585 924 ACN: 106 585 924

12 members including all the major Hollywood film distribution companies through to wholly-owned Australian 

companies such as Roadshow Entertainment, Madman Entertainment, Hopscotch Entertainment, Fremantle 

Media Australia and Anchor Bay Home Entertainment. 

The Australian Federation Against Copyright Theft (AFACT) and Australian Home Entertainment Distributors 

Association (AHEDA) provide this submission in response to specific proposals for reform filed by interested 

parties in response to the Attorney General’s Review of Technological Protection Measure Exceptions under 

the Copyright Act 1968 (Cth) (the Review). 

General comments 

As outlined in the submission lodged by AFACT and AHEDA on 15 August 2012, the current Technological 

Protection Measure (TPM) regime in Australia is 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. 

If the TPM regime is to be amended to incorporate expanded exceptions to the application of the TPMs, then 

a demonstrable and evidence-based need for such exceptions must be established. Such an evidence-based 

approach has been endorsed by the Attorney-General’s department 1 and should be adopted here. The 

Review called for submissions in relation to the review of specific limited existing exceptions, and the potential 

to create additional exceptions under s 249(4) of the Copyright Act 1968 (Cth) (the Act). This section provides 

a number of conditions in order for the Minister to make a recommendation to the Governor-General for an 

additional exception to the prohibition against circumventing access control technological protection 

measures. These conditions include that: 

 

 

 

the act in question is non-infringing; 

it relates to a particular class of works or other subject-matter; and 

the adverse impact on the ability to carry out the act has been credibly 

demonstrated. 

A further condition includes that a proposed exception would not impair the adequacy of the protection of 

access control technological protection measures and the effectiveness of the remedies for their 

circumvention in the Copyright Act. 

The majority of the submissions lodged in answer to the Review propose the introduction of new exceptions to 

the prohibition against circumvention of TPMs and ignore one or more of these prescribed conditions and 

either a) are unable to prove that the conduct that would be enabled by the recommended circumvention / 

exemption is clearly non-infringing b) fail to limit their requests to particular classes of works or c) do not 

provide any credible demonstration of actual or likely adverse impact. Such submissions therefore do not 

meet the standards for review (and thus further consideration) set forth by the Department. 

1 http://www.ag.gov.au/Aboutthedepartment/Speeches/2012/Pages/Evidence-based-Indigenous-Justice-Policy.aspx. 

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AFACT and AHEDA’s main criticism of the submissions proposing additional exceptions is that the parties 

seeking to expand the exceptions to the TPM regime fail to establish any evidence-based or specific need for 

additional exceptions. Further, in some instances, the submissions call for the blanket removal of TPM rights 

(again without any reference to evidence or the specific need for such removal). The TPM regime implements 

Australia’s obligations as a signatory to the WIPO Copyright Treaty of 1996. Article 11 requires contracting 

parties to provide “adequate legal protection and effective legal remedies against the circumvention of 

effective technological measures.” The removal of rights would place Australia in breach of its international 

obligations. 

In particular, a number of the submissions seek exceptions to the TPM regime for the doing of acts in relation 

to copyright works which are permitted by the Act (by way of exception or statutory licence). These 

submissions proceed on the basis that if an act is permitted (for example, by way of the fair dealing 

exception), then circumvention of TPMs should be permitted in relation to that act. This is simply not the case. 

The presence of TPMs does not prohibit entities from using works and subject matter in the manner permitted 

by the Act (especially when alternatives exist that allow the desired use without undermining the security of 

the content through circumvention), and the limitations that TPMs impose on use are critical to the protection 

of the works and subject matter. This is particularly the case in relation to the circumvention of TPMs to create 

digital copies of works, which would lead to the proliferation of unauthorised digital copies of the works. Once 

a work or subject matter is available digitally in a format unprotected by TPMs, it has the potential to be the 

source of large-scale infringement on the internet. In AFACT and AHEDA’s view, this would be an 

unacceptable outcome in a regime which is designed to assist copyright owners in protecting their investment 

in the digital world. 

Additionally, AFACT and AHEDA note that the Act as currently framed provides a balance between 

exceptions to copyright infringement and protection of copyright material. The exceptions and statutory 

licences which are the basis for the proposals in this Review have largely been in place since 2006, the last 

time the TPM regime was considered. The Explanatory Memorandum to the Copyright Amendment Bill 2006 

states that: 

… the present system of exceptions and statutory licences that apply to specific uses of copyright 

material…has been maintained for many years because it gives copyright owners and copyright users 

reasonable certainty as to the scope of acts that do not infringe copyright. 2 

The balanced nature of the current scheme is emphasised by the ongoing development of sophisticated 

markets for online digital content delivery 3 (for example through businesses such as iTunes), which have 

developed within the existing Act and with the current TPM protection regime in place. This is clear evidence 

that the existing regime is not only appropriate, but has enabled the development of the very digital economy 

2 Explanatory Memorandum to the Copyright Amendment Bill 2006 at page 7. 

3 http://www.afact.org.au/index.php/core/internet/where_can_i_get_movies_tv_shows_legally. 

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that the government wishes to promote. Conversely, there is no evidence that the current TPM regime is 

restricting existing online content delivery models or that it is inappropriately restricting consumers from 

enjoying the content within reasonable licensing conditions. 

AFACT and AHEDA’s specific responses to some of the individual proposed exceptions are set out below. As 

a preliminary point, the Department should be wary of accepting submissions from organisations such as the 

Pirate Party Australia, an organisation (not a registered political party) with a primary argument to 

“decriminalise non-commercial copyright infringement”, 4 

where non-commercial copyright infringement 

includes conduct of an owner/operator of a website that makes unauthorised copyright material available 

where the primary purpose of the website is not to earn money (even where some income is accrued from the 

site). 5 

An entity that professes no respect for the rule of law is hardly one on which the government could or 

should rely in determining policy regarding whether to expand the scope of the TPMs. 

An exception for the circumvention of TPMs that corresponds with the fair dealing provisions in the 

Copyright Act 

The Australian Libraries Copyright Committee, Copyright Advisory Group, Copyright in Cultural 

Institutions and Universities Australia have proposed a new exception for the circumvention of TPMs that 

corresponds with the fair dealing provisions in the Act. 

AFACT and AHEDA oppose this exception as the mere existence of an exception to copyright infringement 

such as fair dealing does not entitle those taking advantage of that exception to circumvent TPMs, which are 

designed to limit the capacity to make copies of works. The proponents do not provide any evidence-based 

support for the introduction of this new exception, they fail to limit their requests to particular classes of 

works and also fail to provide or credibly demonstrate the adverse impact on the ability to carry out the act. 

Some of the submissions attempt to limit the scope of the proposed new exception. For example, Universities 

Australia formulates the exception to enable students to use works in accordance with the fair dealing 

exceptions “solely for the purpose of a student complying with the requirements of a course of instruction”. 

The fact that Universities Australia recognises the need for such a limitation highlights the significant risk 

associated with allowing, for example, students to circumvent TPMs. AFACT and AHEDA’s position is that the 

limitations proposed are not sufficient and do not outweigh the serious risk in circumstances where digital 

copies of films without TPMs exposes the content to viral reproduction and distribution. Such an exception is 

also unnecessary wherever alternative means (other than circumventing the TPM) are already available to 

permit the intended use. 

4 http://pirateparty.org.au/faq/. 

5 Christian Engstrom MEP and Rick Falkvinge, The Case for Copyright Reform 2012, page 81, available at 

www.copyrightreform.eu. 

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A blanket exception, such as that proposed hereunder, would provide a dis-incentive for further response and 

development of technological solutions to address reasonable consumer needs, such as accessing 

legitimately acquired copies on multiple devices. Without any corresponding demonstration that TPMs do in 

fact inhibit fair dealing, such proposals fall outside the realm of both this particular review and the general 

tenets of Section 249 of the Copyright Act. 

In any event, it is inappropriate to consider the introduction of a new TPM to reflect fair dealing, when fair 

dealing is the subject of a separate, specific enquiry in the current review by the ALRC which AFACT and 

AHEDA feel is the more appropriate and comprehensive exercise for such connsideration. AFACT and 

AHEDA will therefore be providing detailed submissions in relation to fair dealing as part of the ALRC review. 

An exception for the circumvention of TPMs that allows libraries, archives and cultural institutions to 

circumvent a TPM for the purpose of undertaking an activity under the flexible dealing provision in s 

200AB of the Copyright Act 

The Australian Libraries Copyright Committee, Universities Australia, Copyright Advisory Group, and 

Copyright in Cultural Institutions have proposed a new exception allowing for libraries, archives and cultural 

institutions to circumvent a TPM for the purpose of undertaking an activity under the flexible dealing provision 

in s 200AB of the Act. 

AFACT and AHEDA oppose this exception for the same reasons as those outlined in relation to the fair 

dealing exception above, i.e., that proponents of such exceptions have neither demonstrated any present 

adverse impact on the identified use requiring such an exception, nor any assurance that such an exception 

would not otherwise impair the adequacy and effectiveness of Australia’s TPM regime. 

An exception for the circumvention of TPMs that allows the additional preservation copying activities 

permitted by sections 51B, 110BA and 112AA 

Copyright in Cultural Institutions has proposed an exception in relation to the preservation copying activities 

permitted under the Act. 

AFACT and AHEDA oppose this exception for the same reasons as outlined above, namely the existence of 

permitted exceptions to infringement under the Act does not and should not automatically lead to the 

introduction of an exception allowing for the circumvention of TPMs. The submission in support of this 

proposal does not provide any evidence-based support for the necessity of the exception, including any 

examples of instances where preservation copying has been inhibited by TPMs. The proponents also fail to 

provide or credibly demonstrate the adverse impact on the ability to carry out the act . 

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An exception for the circumvention of TPMs that allows the use of the statutory licence in Part VII Div 

2 of the Act, and in particular section 183 

Copyright in Cultural Institutions has proposed an exception in relation to the statutory licence in relation to 

services of the Crown. 

For the same reasons outlined in relation to the other exception proposed by Copyright in Cultural Institutions 

above, AFACT and AHEDA oppose this exception. The submission in support of this proposal does not 

provide any evidence-based support for the necessity of the exception, including any examples of instances 

where cultural institutions have been inhibited in undertaking “services for the Crown” by TPMs. 

An exception for the circumvention of TPMs to allow the making of backup copies of legitimate 

material 

The Pirate Party Australia proposes an exception for the circumvention of TPMs to allow the making of 

backup copies. 

AFACT and AHEDA strongly oppose this exception for the reasons set forth below. 

The Pirate Party’s submission on this exception is particularly misguided (emphasis added): 

Pirate Party Australia requests a clear exception be made to protect the right of consumers to make 

backup copies of purchased material by circumventing TPMs, and that the form backup copies take is 

a decision to be made by the authorised user, provided it does not violate any other part of the 

Copyright Act. 

DVDs are particularly prone to prohibitive copy-protection, and while easily circumventable, there is 

no explicit exception that allows users to bypass it for the described purpose. There is no evidence to 

indicate that this would have an adverse effect on the rights holder, as copyright infringement is 

rampant – those committing infringing acts are already bypassing TPMs, while consumers are unsure 

of the legality of making legitimate backup copies. 

In essence, the submission is that because copyright infringement is already rampant, the protection afforded 

by the TPMs should be abandoned to enable backup copies to be made. This simply supports AFACT and 

AHEDA’s position – the proliferation of copyright infringement following the making of unprotected digital 

copies of cinematograph films means that those unprotected digital copies should not be permitted. 

An exception for the making of backup copies would be open to widespread abuse. It is unclear whether the 

range of “back up” uses the proponents seek are even permissible under the current scope of Australian law. 

Where users are permitted to make copies subject to specific end user licence agreements in relation to 

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computer software, the use of those copies is highly regulated. If such an exception were introduced, any 

unauthorised copy would undoubtedly be claimed to be a back up copy. 

The proponents submission fails to provide any credible evidence to show that the conduct that would be 

enabled by the exemption is non-infringing; that it is limited to a particular class of works or that there 

would be any credible demonstration of actual or likely adverse impact. The Pirate Party’s misinformed 

comment regarding unauthorised copying having “no adverse effect on the rights holder”, contradicts a 

September 2012 academic study6 which found that, with two exceptions, all published papers in peerreviewed 

academic journals found evidence of statistically significant harm to sales of recently released film 

and television content as a result of illegal file sharing. 7 

In any event, the development of digital markets has already overtaken any concerns about the ability of 

consumers to have access to a new copy if a copy of a work is destroyed or unusable. For example, a file that 

is downloaded through iTunes can be re-downloaded. On the other hand, were an unrestricted backup 

copying exception introduced then it would defeat the licensing conditions applied by legitimately providers 

such as iTunes, and would therefore impact on pricing and other terms. 

An exception for the circumvention of TPMs to allow unrestricted format shifting and circumvent 

TPMs in order to exercise fair dealing rights 

The Pirate Party Australia proposes that an exception be made to allow consumers to circumvent TPMs 

where TPMs would otherwise prevent them from using copyrighted content on any device of their choosing. 

AFACT and AHEDA strongly oppose this proposal. 

As set out in our earlier submission, the Attorney-General’s Department conducted an in-depth review of the 

format-shifting provisions in 2008, ultimately recommending no change to the provisions as allowing digital 

format-shifting may encourage the circumvention of the TPMs: 

Also a major concern of film rights holders is that extending section 110AA to allow digital formatshifting 

may encourage the circumvention of technological protection measures. That is, the public 

may not appreciate the distinction between permission to copy but a continuing prohibition against 

circumvention. AFACT states that once measures are circumvented for the purpose of format-shifting 

it would then be possible for unprotected copies to be limitlessly reproduced or made available online 

6 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2132153 

7 Of the two published papers that find no evidence of harm from illegal file sharing, one research paper only analysed the impact of file 

sharing on DVD sales and not digital sales, and the second research paper did not review the impact of piracy in the earlier part of a 

movie’s lifecycle where the availability of pirated content has the most detrimental impact on sales. 

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for distribution thereby undermining the opportunity of copyright owners to receive financial returns 

from exploitation of their works. 8 

The inability of copyright owners to receive remunerations for their copyright works under such a broad 

exception scheme as that recommended by The Pirate Party Australia is recognised by copyright academic 

Kimberlee Weatherall 9 (emphasis added): 

We could create a full, free exception to copyright for private copying under which all personal 

copying of any kind of copyright material would no longer be a copyright infringement. This would 

ensure that Australian consumers were no longer ‘serial infringers’ – but it would not provide any 

remuneration to the creators of copyright works and might lead to less production of copyright works. 

It may also be contrary to our international obligations. 

When discussing ‘private copying’ the Explanatory Memorandum to the Copyright Amendment Bill 2006 

recognised that the principal objective was to “ensure that exceptions and statutory licences in the Act 

continue to provide reasonable public access to copyright material” 10 and that in achieving this objective there 

was a need for government to only consider common forms of private copying that do “not undermine the 

economic incentives provided by copyright”. The Memorandum also recognised that in achieving this balance 

it was necessary to ensure that any amendments to the Act comply with international copyright treaties. The 

international copyright treaties to which Australia is a signatory all include a common international standard for 

copyright exceptions and limitations. The AUSFTA also contains this standard requiring each country to limit 

exceptions 11 . 

Given the Department’s conclusions in 2008, any attempt to expand the scope of the format shifting 

provisions by reference to the TPM exceptions should be treated with caution. It is clear that during the 2008 

review, the scope of the format shifting provisions were carefully considered, including by reference to the 

limits placed on format shifting by TPMs. . It is unclear whether the range of format shifting sought by 

proponents seek is even permissible under the current scope of Australian law. This Review is therefore not 

the appropriate forum for any reconsideration of the format shifting provisions. 

AFACT and AHEDA confirm that business models have been and are being developed on the basis of the 

current TPM regime, including models that provide consumers with multiple digital offerings For example 

8 At [5.14] of Copyright Exceptions for Private Copying of Photographs and Films: Review of sections 47J and 110AA Copyright Act 

1968, 2008. 

9 http://www.ipria.org/publications/occasional-papers/Occasional%20Paper%203.05.pdf 

10 http://www.austlii.edu.au/au/legis/cth/bill_em/cab2006223/memo_0.html (page 7) 

11 Article 17.4(7)(e)(viii) states that “Each Party shall confine exceptions to … non-infringing uses of a work, performance, or phonogram 

in a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those non-infringing uses is 

credibly demonstrated in a legislative or administrative review or proceeding; provided that any such review or proceeding is conducted at 

least once every four years from the date of conclusion of such review or proceeding”. 

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UltraViolet, 12 which is scheduled for launch in Australia in the first quarter of 2013, has seen unprecedented 

growth in the United States and now has around four million account holders. UltraViolet allows consumers to 

view their content on any device they own, anytime, anywhere by having it hosted in the cloud. 13 

If an exception to the prohibition against circumventing TPMs for format shifting were allowed, the 

consequence would likely be unlimited unauthorised file sharing of the now unprotected works. Once a work 

or subject matter is available digitally in a format unprotected by TPMs, it has the potential to be the source of 

large-scale infringement on the internet. In AFACT and AHEDA’s view, this would be an unacceptable 

outcome in a regime which is designed to assist copyright owners in protecting their investment in the digital 

world. 

An exception for the circumvention of TPMs regards to cinematograph films and computer programs 

that have TPMs for the purposes of geographic market segmentation 

Robert X proposes an exception for the circumvention of TPMs on cinematograph films and computer 

programs that are protected for the purposes of geographic market segmentation. 

The proposal ought to be rejected. It misunderstands the scheme of the TPMs insofar as they control 

“geographic market segmentation” of cinematograph films or computer programs. Both those types of works 

or subject matter are exempted from the TPM scheme (see definition of “access control technological 

protection measure” in s 10 of the Act). Further, the submission also misunderstands the nature of the 

copyright subject matter covered by the definition of “non-infringing copy” in s 10 of the Act. That definition 

collectively refers to the specific schemes ensuring authenticity of sound recordings, computer programs and 

literary or musical items provided for under ss 10AA, 10AB and 10AC respectively in relation to the separate 

issue of parallel importation. Cinematograph films are not and have never been covered by any equivalent 

scheme. 

Neil Gane 

Simon Bush 

Managing Director 

Australian Federation 

Against Copyright Theft 

Chief Executive Officer 

Australian Home Entertainment 

Distributors Association 

12 http://www.uvvu.com/faqs.php#question-1 

13 UltraViolet content can be acquired either by being bundled with DVDs/Blu-rays, electronic sell through, or in-store disc-to-digital 

conversion. UltraViolet works with multiple consumer electronic devices (game consoles, Blu-ray players and Internet TVs), as well as 

offering streaming and downloads to personal devices (PCs, Macs, iOS and Android devices).Rather than the single account of other 

services, UltraViolet enables users to create a household account which allows them to share their library with a group of designated 

users. 

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AFACT AHEDA - Attorney-General's Department

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