The proposed amendments to the Digital Agenda Bill in the Advisory Report handed down recently by the House of Representatives Legal and Constitutional Affairs Committee provide that circumvention devices/access devices will only be available for use in very narrowly defined and restricted circumstances. Stringent penalties are proposed for the misuse of such devices.
The Government has rightly sought to maintain the delicate balance between copyright owners and copyright users in the digital environment, in the knowledge that access to information in a digital format is crucial if Australia is ever going to become ‘a clever country’.
Australia should be wary of following the United States’ lead in banning circumvention devices – the same forces which pushed through the US DMCA legislation in 1998 have wielded the law against copyright users in recent entertainment industry litigation.
Access devices are utilised for many purposes and legislators should not succomb to the horror stories perpetrated by copyright owners desperate to protect their interests. Security checking, preservation of digital works and systems administration are all legitimate uses of access devices. Whilst copyright owner lobbyists say that the Bill goes too far, we would claim that it does not go far enough. Fair dealing is also a legitimate use of an access device. Carrying over into the digital world the same fair dealing provisions that exist in the print world necessitate the use of access devices for limited research and study purposes.
The ease of transmission of information on the internet has prompted many creators to ‘lock up’ their material with encryption devices, for the purpose of increasing the potential revenue from distribution of their work. Where in the print environment it was possible for a student make a limited free fair dealing copy of a reasonable portion of a work, this will only be possible in the digital environment where the copyright owner provides such access. The potential result is then that mammoth amounts of information and innovation will not be accessible unless you can afford to pay for it – a pay per view system. Most of the students in Australia will not be able to afford to pay for access. Certainly our universities and libraries cannot afford to pay for access.
The answer is to allow the limited use of access devices for fair dealing purposes. This merely allows copyright users the same continued access to material in the digital environment as has always been available in the print world.
Another major concern that the legislation currently overlooks is that information in the public domain. The anomaly will exist where works in the public domain available on the Internet for instance, cannot be accessed by a user. According to the definition in the proposed legislation, unlocking a encryption device on a public domain work will not be a permitted purpose per s 116A(7)(a) because the device will not ‘be used for the purpose of doing an act comprised in the copyright in a work or other subject-matter’. Accessing a work in the public domain is not an act incorporated in the bundle of rights known as ‘copyright’.
This is what is wrong with the access provisions of the Digital Agenda legislation. This is why it is unfair on libraries, schools and universities in Australia. This is why it furthers the possibility of an information divide within our society. You will have to pay to read in the digital world. Keys cost money.
Access devices allow us to look at encrypted information in limited circumstances, without paying a fee. They are essential for libraries to preserve digital information for future generations. They are essential for preservation of fair dealing exceptions that work for the benefit of students, researchers and the community at large. Access devices facilitate the government’s agenda of carrying over into the digital environment, the same balance that exists in the print world. Australia will not be a ‘hacker’s haven’ nor will industry be discouraged from investment. Australia imports more copyright material than it exports, so the question of ‘whose interests are the copyright collecting societies and US lobbyists protecting’ should be asked. Scaremongering by copyright owners who are only concerned with protecting a potential income stream should not sway our legislators from their path. The path is one to a clever country. Access devices will ensure that the students of today have legitimate access to the works of the past, in order to realise Australia’s future potential.