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Monday, February 9, 2015

It's the (downloading) apocalypse, or is it?

By David Stewart, Associate

On 6 February, Scintilla blogged about all things patent-related in the proposed Trans Pacific Partnership Agreement (TPP). If you missed it (how could you!), check it out at the blog.

Cruelly, we left you on a cliffhanger, waiting to find out if proposed changes to Australian copyright law will sound the death-knell for downloaders of movies, music and TV shows (or at least make it much, much more costly), as seems to have been the media focus to date. Well, below is a summary of a few of the more controversial TPP proposals relating to copyright, and how they may affect Australian law.

Length of copyright protection

Various proposals have been put forward by the negotiating parties, the latest of which are that where the identity of the author is known, the copyright term should be not less than the life of the author plus 50, 70 or 100 years depending on the particular proposal. There is even more disagreement in the context of works where the identity of the author is unknown and the work is unpublished within 25 years of creation – parties have proposed a term of between not less than 50 years and not less than 120 years! Your guess is as good as ours as to where this ends up, although we'd be surprised if the final agreement goes further than the current Australian law (being life of the author plus 70 years where the author is known, and 70 years from first publication where the author is unknown).

Ban on circumvention of digital locks

A digital lock is a measure intended to prevent copyright infringement either by preventing unauthorised access to the work or by imposing copy controls on the use of the work. The November 2013 draft included a US and Australian proposal whereby, subject to certain limited exceptions, circumvention of digital locks will be treated as an offence, even where no copyright infringement has occurred. The proposal also contemplated criminal penalties in the event of circumvention ‘wilfully and for purposes of commercial advantage or private financial gain’. That proposal appears to have now been accepted by the other negotiating countries.

The introduction of criminal penalties for 'wilful circumvention' is largely similar to the existing Australian digital locks regime, which was introduced into the Copyright Act 1968 (Cth) in 2006 as a consequence of the Australia-US Free Trade Agreement. The existing regime includes criminal penalties where circumvention is done for the purpose of commercial advantage or profit.

Ban on parallel importation

Parallel importation refers to when goods produced legitimately and supplied in one market are imported into another market without the authorisation of the local IP owner or licensee. This proposal has been pushed by the US, presumably with protection of its film industry in mind. Seemingly motivated by competition concerns that may arise from such a ban, the Australian Government has stated that it opposes a ban on parallel importation of copyright material, as do a number of other parties. The government's position in this respect is consistent with the recommendations in the draft report of the Competition Policy Review, which was released in September 2014.

Ban on internet retransmission

This was a new proposal in the May 2014 draft, under which retransmission of television signals via the internet would be banned without the rights holder's permission. Presumably, this is directed at the Optus TV Now-style services, which (prior to being shut down) allowed users to record live TV on their mobile phones and computers, and then replay it later. These types of services are presently banned in Australia following a Full Federal Court decision on the topic in late 2012, although in February 2014 the Australian Law Reform Commission proposed changes to copyright law that may alter that position.

Criminal sanctions for infringement

The November 2013 and May 2014 drafts include a US proposal to introduce criminal penalties for certain types of infringement. The proposal would require that ‘each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale'. The language in the November 2013 proposal was very broad and arguably captured private activities like a friend copying your CDs  (despite you telling them not to, of course). While there have been some changes to the text in the May 2014 draft, there is still arguably a risk that, if accepted, you may be going to jail for sharing the latest Taylor Swift or AC/DC album with your friends. Australia is fighting the good fight on this proposal and seeking to narrow the scope of criminal liability to avoid situations such as this.

Obligations on ISPs to monitor for infringing activity

In 2012, the High Court held that iiNet was not liable for copyright infringement in failing to take reasonable steps to prevent its customers from downloading and sharing infringing copies of films and TV programs. As a result, ISPs in Australia are not required to monitor customer activity for copyright infringement.

Well, that would change under the TPP. The November 2013 draft included two (competing) proposals. One proposal provided that ISPs would be liable for copyright infringement by their customers unless they monitor their customers’ downloading activities, and potentially terminate services in the event of repeated infringement. The alternative proposal includes a general limit on ISP liability, and no requirement that ISPs positively monitor for infringing activity. Instead, they would be required to implement procedures to facilitate the removal of infringing material when notified by a rights holder. The May 2014 draft shows that the latter proposal seems to be gaining greater acceptance, although there is still a lot of disagreement between the negotiating parties.

Independently of the TPP negotiations, the Australian Government is considering options to expand ISPs' liability for their customers' copyright infringements. Some of these options were outlined in a discussion paper released by the Attorney General's department in July 2014. Given the interest in this issue from both stakeholders and the public more generally, we would not be surprised to see legislative changes introduced in this area independently of the TPP.

In summary, the May 2014 draft of the TPP includes a number of proposals that are likely to have a substantial impact on Australian copyright law, particularly in relation to parallel importation and illegal downloads. As such, illegal downloaders throughout Australia should probably be shaking in their boots.

No doubt there are many more twists and turns to come in the TPP saga. As noted last week, recent reports out of the US suggest that the TPP text may be ready as soon as mid-March. Whether this is in fact the case is anybody's guess, but we expect Wikileaks will keep us posted. Whatever eventuates, we can be assured that there will be some significant implications for IP law in Australia (if not Australian law more generally), even if it isn't entirely clear what they will be at the present time.

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