Sony round 3 in Australia
And thanks to Andres at Technollama for the VERY speedy reporting of the decision of the Australian High Court in Stevens v Sony of 6 October regarding the copying, and subsequent playing, of CD Rom computer games. As I have former colleagues on both sides of this case, I'd also been keeping a watching eye.
The High Court (ultimate appeal court in Australia) upheld the first instance decision, and rejected that of the Full Federal Court. It held that the combination of an access code and boot ROM in the CD Rom/Playstation console, was not a "technical protection measure" (TPM) under the Australian copyright legislation; and as such, it was not a contravention of the legislation to supply a device - a modchip installed in the console - to circumvent this.
The key question was whether the modchip, which did not prevent copying of computer games, just whether the copy could actually be played, fell within the definition of TPM - "a device.... designed in the ordinary course of its operation, to prevent or inhibit the infringement of copyright." The High Court held that "inhibit" could not be interpreted properly to cover a device which merely made it more difficult to access and use a copy already made; which might deter infringement but did not stop it or make it more difficult.
The lengthy decision goes into detail on principles of statutory interpretation and constitutional obligations in Australia. As would be the case in the courts of the UK, the courts look to the words used in the statute, in the light of context and purpose as can be derived from extrinsic material, including parliamentary debate. The case makes clear, however, that (not surprisingly) the TPM was the result of a compromise, and no specific purpose could be easily discerned.
Accordingly, the High Court considered the ordinary and grammatrical meaning of wording; the fact that it was acceptable to supply circumvention devices for permitted purposes (which provision would be "stultified" if Sony's approach were adopted); other possible circumstances (for example, a device might prevent one type of infringement, but not all, and as such only "inhibit" it - so Sony did not need to succeed for "inhibit" to have meaning); and the careful balance considered to have been struck by Parliament between the rights and interests of IP owners and others (including the consitutional property rights of those who had bought a CD).
The High Court felt that a narrow interpretation was appropriate. It was not prepared, absent clear indication from Parliament, to upset these careful balances by applying the legislation beyond the confines of infringement of copyright. The case is an example of the scope of litigation and courts: within certain limits, there are opportunities for creative interpretative arguments; but courts do not make policy and should not, and here did not, stray beyond those limits.
Perhaps concerningly, however, there is reference to the likelihood of further revision of the Australian copyright legislation in the light of the Free Trade Agreement with the United States. Will the careful balance referred to, and pursued by, the High Court be upset there?
The High Court (ultimate appeal court in Australia) upheld the first instance decision, and rejected that of the Full Federal Court. It held that the combination of an access code and boot ROM in the CD Rom/Playstation console, was not a "technical protection measure" (TPM) under the Australian copyright legislation; and as such, it was not a contravention of the legislation to supply a device - a modchip installed in the console - to circumvent this.
The key question was whether the modchip, which did not prevent copying of computer games, just whether the copy could actually be played, fell within the definition of TPM - "a device.... designed in the ordinary course of its operation, to prevent or inhibit the infringement of copyright." The High Court held that "inhibit" could not be interpreted properly to cover a device which merely made it more difficult to access and use a copy already made; which might deter infringement but did not stop it or make it more difficult.
The lengthy decision goes into detail on principles of statutory interpretation and constitutional obligations in Australia. As would be the case in the courts of the UK, the courts look to the words used in the statute, in the light of context and purpose as can be derived from extrinsic material, including parliamentary debate. The case makes clear, however, that (not surprisingly) the TPM was the result of a compromise, and no specific purpose could be easily discerned.
Accordingly, the High Court considered the ordinary and grammatrical meaning of wording; the fact that it was acceptable to supply circumvention devices for permitted purposes (which provision would be "stultified" if Sony's approach were adopted); other possible circumstances (for example, a device might prevent one type of infringement, but not all, and as such only "inhibit" it - so Sony did not need to succeed for "inhibit" to have meaning); and the careful balance considered to have been struck by Parliament between the rights and interests of IP owners and others (including the consitutional property rights of those who had bought a CD).
The High Court felt that a narrow interpretation was appropriate. It was not prepared, absent clear indication from Parliament, to upset these careful balances by applying the legislation beyond the confines of infringement of copyright. The case is an example of the scope of litigation and courts: within certain limits, there are opportunities for creative interpretative arguments; but courts do not make policy and should not, and here did not, stray beyond those limits.
Perhaps concerningly, however, there is reference to the likelihood of further revision of the Australian copyright legislation in the light of the Free Trade Agreement with the United States. Will the careful balance referred to, and pursued by, the High Court be upset there?
posted by Dr Abbe Brown at 3:17 pm
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