Copyright Issues and Technology Protection Measures - Essay Example

Copyright Issues and Technology Protection Measures (TPMs) Student’s Name Institution Tutor’s Name Course Date Copyright Issues and Technology Protection Measures (TPMs) Introduction Copyright ownership gives the creators of various works certain rights over them from the time of their production up to 70 years after their death. Copyright can be transferred from one party to another one; the copyright owners can sell all or part of their entitlements to other parties, but on specific terms and agreements (Davidson, Monotti & Wiseman 2012, p. 247). The government of Australia has taken significant steps to address the copyright issues by reviewing the exceptions proposed on various parts of Technology Protection Measures (TPMs) on the Copyright Act 1968. The Australian Home Entertainment Distributors Association (AHEDA) and Australian Federation Against Copyright Theft (AFACT) are the main organizations that assist the government to protect the TPM provisions (Jones & Moens 2008, p. 7). There are groups that want the TPM provisions redesigned to completely correspond with the fair dealings that are outlined in the Copy Right Act. These groups include the Australian Libraries Copyright Committee (ALCC), Copyright in Cultural Institutions (ICC), Copyright Advisory Group (CAG) and Universities Australia, which have come up with alternative approaches to avoid some of the TPM provisions to allow non-commercial groups to violate the Copyright Act based on the aspect of fair dealings (Safavi-Naini & Yung 2006, p. 67). This paper investigates these alternative approaches and the potential consequences that the approaches may bring. AHEDA, AFACT and the Copyright Act AHEDA and AFACT are the main organizations that have the authority to recommend to the government the TPM provisions to be reviewed, changed and enacted on the Copyright Act. The two governmental bodies currently maintain that the current TPM is properly formulated and as a result, it is fair for all the groups that are affected by the Act (Kenyon 2007, p. 165). AHEDA and AFACT argue that the current TPM offers the most appropriate intersection for the organizations that are pushing for the amendments and those whose activities may be affected by the proposed exceptions (Rimmer 2007, p. 61). AHEDA cares for the interests of the biggest number of people and organizations whose businesses and livelihood directly depend on copyright. Currently, the TV and film entertainment industries and digital businesses in the country whose interests lie with AHEDA are worth over $1 billion (Blakeney 2012, p. 271). AHEDA expresses the interests and views of these organizations in relation to the intellectual property infringement, media access, media convergence and copyright. Some of the members of AHEDA include Madman Entertainment, Fremantle Media Australia, and Roadshow Entertainment (Nham 2010, p. 113). AFACT, like AHEDA, protects the interests of TV and film industries, movie fans, and movie retailers from copyright infringement in Australia. AFACT was formed in 2004 and since then it has always fought for the rights of its members. To ensure that it achieves its objectives, AFACT works closely with the relevant bodies and authorities that are responsible for implementing and enforcing the intellectual property laws in the country (Macmillan 2005, p. 60). AFACT protects the interests of more than 50,000 individuals from infringement of intellectual property or copyright. Some of the AFACT members include Motion Picture Association, Paramount Pictures Australia, Village Roadshow Limited, and Sony Pictures Releasing International Corporation (Rimmer 2007, p. 128). The Alternative Approaches and Their Consequences The alternative approaches are the exceptions that have been proposed by the Copyright Advisory Group, Universities Australia, Australian Libraries Copyright Committee, and Copyright in Cultural Institutions. The first approach is the one that allows circumvention of TPMs to enable cultural institutions and libraries to avoid a TPM provision with the aim of conducting activities that correspond to the flexible dealing provision within the copyright (Strowel 2009, p. 283). However, this approach has a lot of shortcomings and poses a great threat to the organizations whose businesses depend on the TPM provision. The flexible dealing approach does not mention how it plans to take care of the organizations that may try to misuse this exception. The proponents do not show how the plan will be used to prevent the potential consequences that are likely to come with the exception. In addition, the approach does not prove that there would be no interference on the effectiveness and adequacy of the TPM provisions (Rooijen 2010, p. 260). The second and main proposed alternative approach is circumvention of TPMs that represents the fair dealing provisions in the Copyright Act. The TPM provisions state clearly that a mere exception to copyright theft that corresponds to fair dealing does not give individuals and organizations a chance to use it to their advantage or circumvent the provisions of the TPM. The TPM provisions were put in place to prevent people from producing copies of other’s works (Caenegem 2010, p. 67). The proposed approach does not demonstrate proper reasons for pushing for this exception. The proponents of this approach do not connect this exception to particular classes of works. This can be interpreted as an improper means of pushing for the exception to be allowed for all works so that the infringers would have an easy time stealing copyrighted material. The proposals do not illustrate how the organizations are going to apply the exception while at the same time ensuring that no one takes an unfair advantage of it (Caenegem 2010, p. 67). There are a number of suggestions that are made by the proponents that make the approach to appear filthy. These suggestions weaken the main purpose for which the exception should be allowed. The main limitation of this approach is the demand of the Universities Australia, which would allow students to apply other people’s works in correspondence with the fair dealing provision based purely on the argument that students are to use the works within the course instructions (Derclaye 2008, p. 241). It is convincing that the Universities of Australia recognize the risk that is associated with this alternative approach. The fact that the Universities of Australia acknowledge that there is an imminent risk in the exception is an indication that allowing it may cause a possible copyright infringement (Yu 2007). When students are allowed to circumvent the TPM provisions due to the fact that their actions will be restricted within the fair dealing exceptions, they are likely to abuse such provisions (Caenegem 2010, p. 70). The suggestions that are proposed to limit the freedom of the students and other users of this approach are not strong enough. The limitations are less sufficient when compared to the risks that this alternative approach imposes on the rights of the owners of these works. The greatest risks lie in digital works whose contents are exposed to malpractices such as electronic distribution and viral reproduction. The limitations proposed also do not make sense because there are alternative measures in place that take care of the permitted users (Derclaye 2008, p. 243). The proposed approach has the risk of propelling the organizations concerned to develop other ways to cater for users’ needs, which is mainly concerned with how to check lawfully acquired copies of a particular work. The proponents of copyright suggest that this proposal instead hinders the provision of fair dealing. The opponents of the exception argue that it does not make sense for the proponents to suggest another exception on the fair dealing provision when there is already such a provision under discussion (Derclaye 2008, p. 244). The third alternative approach is one that enables circumvention of TPM provisions to allow Copyright in Cultural Institutions to preserve copies of other people’s works. The approach is based on preservation of copying activities with correspondence to sections 112AA and 51B. The main problem with this approach is that it may allow an automatic introduction to a new exception that can lead to easy circumvention of TPM provisions. It is evident that permitting such an exception into the Act is likely to make it easier for similar proposals that may be made in future (Jordan 2006, p. 205). Another reason that makes this new approach to appear like it is intended for malicious gain is its inability to give a proper evidence for its necessity. For instance, the proposed alternative does not demonstrate how the TPM provisions have been hindering the process of preservation copying. This proposal is also weak in that it does not provide a credible consequence that may result from failure to preserve the copies of copyrighted works (Jordan 2006, p. 207). The forth alternative approach is the exception that is intended to circumvent the TPM provisions to allow for formulation of backup copies of legitimate works. This approach is to a great extent meant to misguide the Australians. The approach is asking for permission to allow consumers to make backup copies of the works they purchase, which automatically leads to circumvention of TPMs. This exception can only be granted to legitimate users and the permission should not affect any other provision of the TPM (Deaxley 2008, p. 71). The approach is based on the argument that copyright theft is widespread and accordingly, there is a need to circumvent the TPM provisions to allow for making of backup copies of the legitimate works that are purchased. In any case, any work especially the digital type, that has no protected copies should not be purchased by consumers. It is obvious that if an exception of making backup copies is granted, it is going to be subject to extensive abuse. This particular approach has never been permitted by the Australian Copyright Act and talking about including it in the Act will be such a long process. The main hindrance of this approach is that infringers may claim that all their illegitimate copies are back up copies (Deaxley 2008, p. 74). The fifth approach is the exception for circumventing the TPM provision to make them allow people and organizations to use the statutory license in section 183 of the Act. This, the proponents argue, is intended to allow for the use of the license in correspondence to services of the Crown (Correa 2010, p. 302). Like the first approaches, this one too has a number of weaknesses that bar it from sailing through. It does not explain how the organizations lose as a result of the not having this exception put in place. This approach could have at least outlined a few examples in which the daily activities of the cultural institutions have been hindered while conducting services for the crown (Deere 2009, p. 111). The last alternative approach is the proposal of exception that allows users of legitimate works to circumvent TPM provisions to be able to use copyrighted content on devices that they like. This is typically an exception to allow for unrestricted format changing without having to seek permission from the copyright owners (Hilty & Nerisson 2012, p. 379). This is an exception that has been rejected repeatedly since 2008. The main problem that prevents this approach from being acceptable is it potential to encourage more circumventions of the TPM provisions (Torremans 2007, p. 319). Apart from the encouragement, allowing this proposal to succeed may interfere with the operations of the holders of film rights. The holders may be disadvantaged by the extension of section 110AA as it will encourage circumvention of most of the technological protection strategies. The end result of this approach when implemented is expected to be a great confusion between copyright permits and circumvention prevention. This, in turn, might reduce returns on investments for most copyright owners (Stegmaier 2005, p. 97). In conclusion, it is evident that there is a battle between the AHEDA and AFACT, and the proponents of the new alternative approaches to circumvent the TPM provisions of the Copyright Act. The alternative approaches are based on the provisions of fair dealing, unrestricted format shifting, making of backup copies and making copies for additional preservation. Although the new alternative approaches offer meaningful measures, they fail to provide the necessity for their implementation. They are not evidence-based and they do not demonstrate the negative consequences associated with the failure to implement them. 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