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Section 55 of the Copyright Act provides a statutory licence that allows 'manufacturers' to record musical works for retail sale, or for making other records for retail sale. The scheme is remarkably convoluted, and there are a number of restrictions – most importantly, a licensed recording of the work must have already been available for at least one month.¹⁾

The statutory licence extends to copyright in the lyrics (literary or dramatic works) that have also been recorded with the music and released in Australia.²⁾ In compliance with the statutory licence, the manufacturer must give notice to the owner of the copyright in the musical work and pay a royalty to the owner.

The first thing to note about the statutory licence is that it only applies to musical works and the associated lyrics. It will not apply to recordings at all. This means that it might be possible to record a new cover version, but the licence provides no latitude for remixing an already recorded track.

So, today's question is – under the statutory licence, can I record a cover version and release it under a Creative Commons or other open licence?

The statutory licence provides no clear guidance as to what licence can be applied to a cover version. However, several restrictions apply to widespread distribution under the licence.

The first is the requirement that the record be made for 'retail sale'. This requirement is further limited to exclude sale for “a consideration not consisting wholly of money” and sale by anyone “not ordinarily carrying on the business of making or selling records”³⁾ So, people distributing their own recordings on the internet for no fee are out of luck. Licensing to Apple for sale on iTunes is presumably allowable, but selling on your own website for a nominal fee is probably not, unless you are ordinarily in 'the business'. But here we run into another problem – the statutory licence covers 'records', not 'recordings'.⁴⁾ It refers to physical records, and is certainly not technologically neutral. So electronic distribution appears to be right out.
A certain amount of 'gratuitous disposal' is permissible – that is, you can give away records at your gig or elsewhere, as long as you're planning on selling a substantial proportion of the records, and you pay royalties on each of the records you give away.⁵⁾

The next question is whether, if you do manage to satisfy the requirement that you sell the records, what licence can you apply? Well, to the extent that you own the copyright in the recording and any new music and lyrics, you can apply whatever licence you like. However, the statutory licence provides no rights for downstream users. So while you could technically stick a CC sticker on your cover record that you're selling (or giving away), you would have to specifically exclude any claim over the original music and lyrics.

Practically, what does this mean? Simply put, downstream users will have no right to copy or remix the record unless they can separate out your new material (that is not based on the original material in any substantial way) from the original, which is unlikely. So, in terms of electronic distribution and downstream licensing, the statutory licence is fairly underwhelming.

APRA/AMCOS maintain that “Lyric changes and parodies of works must have been cleared directly with the copyright owner.”

This conclusion appears to be supported by the wording of s 59, which allows lyrics to be recorded in conjunction with the musical work only if “those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music” on an existing (licensed) recording.

There is also a conspicuous absence of a provision for literary or dramatic works in similar terms to that in s 54(1)(a), which states that

a reference to a musical work shall be read as a reference to the work in its original form or to an adaptation of the work.

So, under the statutory licence, it appears that modifying and interpreting the music is permissible under the statutory licence, but modifying or interpreting the lyrics is not.

Under the previous law, s 55(2) provided a requirement that the recording artist not 'debase' the musical work, but this condition was removed with the introduction of moral rights into the Copyright Act.⁶⁾ Now, the style of the cover is governed by the moral right of integrity. Interestingly, because we still do not have much guidance on the meaning of the moral right of integrity, a case under s 55(2) still provides the best assistance for determining when the moral right will be infringed.

The Federal Court and the Full Federal Court on appeal considered the meaning of 'debase' in the Carmina Burana case.⁷⁾ The question in that case was whether four techno remixes of the chorus of Carmina Burana 'debased' the original work. The Full Federal Court found that the techno remixes did not 'debase' the original. Importantly, Wilcox J held that the qualitative analysis need not be technical – because the term 'debase' is a strong one, for it to be applicable, “the adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work.”⁸⁾ His Honour concluded that the requisite level of quality is quite low, noting that “[i]t is difficult to think an adaptation that has its own integrity could be so characterised, even if it is musically inferior and however radical or distasteful (to some) it may be.”⁹⁾ Justice Lindgren agreed with Wilcox J, noting that

an arrangement will be less likely to be a debasement where, as here, it is an arrangement which 'makes available' the original musical work to the musical tastes of a different period of time or of a different subculture, or (as here) of both, and which thereby acquires its own integrity.¹⁰⁾

It is likely that in future, courts interpreting the concept of 'derogatory treatment' in the moral right of integrity with relation to cover versions will follow a similar approach – meaning that a cover version will have to be extraordinarily bad in order to infringe on the original author's moral rights.

This analysis shows some flaws in the statutory licence for the digital age. Primarily, it does not apply to electronic distribution at all. Additionally, by focusing on sales, it fails to take into account other methods of licensing music and other business models.

The argument can be made that the licence compensates musicians by providing royalties on sales, and that adequate compensation would not be payable if the cover version were made available under the open terms of a CC licence that allows unlimited distribution and remixing. Perhaps this is a valid argument, but it needs to be examined in detail. Is there some acceptable form of statutory licence that would allow for open licensing of cover recordings? How would we go about compensating the original author in such a situation?

The original Associated Press photograph of Barack Obama and Shepard Fairey’s “Hope” poster (compilation from NYT blog story).

(I originally wrote some of this content for EFA's submission (PDF) to the Department of Broadband, Communication and Digital Economy’s Future Directions review.)

In a major review of Australia's copyright law in 2005, the Attorney-General's Department determined not to introduce an open ended copyright exception like the US fair use defence. This decision resulted in Australia adopting some of the harsher measures from US copyright law without the corresponding flexibility that provides a balance for users and rights holders. This balance directly affects free speech and innovation – it is the balance between providing the incentive to create and reducing the barriers to create new works. If this balance is not achieved in either direction, both innovation and speech are likely to be greatly restricted in Australia.

As you may be aware, Shepard Fairey, the artist responsible for the powerful 'Hope' poster, has sued for a declaratory judgment that it does not infringe copyright in the original AP photograph that he used for inspiration. The Stanford Fair Use project is supporting the suit, and claim that:

There should be no doubt about the legality of Fairey's work, […] He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.

A major flaw in Australia's copyright regime, as compared to the United States, is that we lack an exception to infringement for transformative reuse of copyright material. In the US, transformative use is a factor in the four-factor fair use defence, and allows some latitude for innovative repurposing of existing expression. In Australia, our fair dealing exceptions limit unlicensed reuses of copyright material to a small number of allowed purposes. Innovative acts of reuse that are not able to be pushed into one of these categories generally require a negotiated licence, which is often not forthcoming or prohibitively expensive. Because the fair dealing provisions are so narrowly interpreted, a large proportion of new creative expression is inhibited by our copyright law.

So it would appear that Australian copyright law would essentially prohibit the unlicensed creation of this type of poster. It is hard to see the justification for this result. We see time and time again that copyright owners often refuse to license their material on reasonable terms. It is probable that this sort of poster has no adverse effect on the market for the original – it is certainly not directly substitutable. It does however, have a very positive effect on public discourse – this icon has proved to be one of the most powerful of the recent campaign.

We introduced a parody and satire exception to copyright infringement to create a space for some transformative works, but this is a clear example of important speech that simply can't fit within one of our purposive exceptions. It shows that there is something fundamentally skewed within our copyright policy if this type of speech – speech that engages individuals in a public political discourse – is not permissible.

I argued in my masters paper that we ought to introduce a transformative use exception into Australian copyright law. If we tried hard enough, I'm convinced we could come to agreement on a balanced exception that would prohibit mere repackaging but allow unlicensed repurposing of copyright material that is not directly substitutable for the original. As we argued again in the EFA submission to the DBCDE consultation paper, such an exception could introduce much needed flexibility in Australian copyright law and provide some additional scope for innovation without compromising the incentives to create original expression.

Today I finished EFA's submission (PDF) to the Department of Broadband, Communication and Digital Economy’s Future Directions review.

The submission tackles a number of important issues for the digital economy, including open access to public sector information, electronic accessibility of printed material to people with a print disability, broad-based ICT training, and copyright policy.

We conclude the submission with a reminder that our policy framework ought to empower Australians to access and build upon information in the digital economy:

As Australia transforms into a knowledge based economy, the policies we choose to adopt for the creation and dissemination of information become crucially important. It is becoming increasingly clear that greater access to information and greater technical and legal abilities to remix, build upon and improve that information are fundamental drivers of innovation. EFA believes that the single most important issue in an innovation policy is ensuring that Australians are empowered to innovate, and that the barriers we impose to innovation are justified with reference to our social goals.

I would like to express my thanks to all those who helped to write the submission. As far as I know, this was the first open collaborative submission produced by EFA. A number of people were involved in contributing to its development on our public wiki, which helped me immensely. I'm very grateful to the mostly anonymous editors. This process gives me high hopes for the future development of EFA as an inclusive volunteer based organisation.

I am about to run a presentation at Linux.conf.au 2009 in Hobart. I want to particularly talk about Section 47D of the Copyright Act 1968 (Cth). Section 47D was a great affirmation of the right to reverse engineer computer programs for interoperability. One especially important feature is that 47D, thanks to s 47H, is not excludable by contract. In the United States, we have seen numerous examples of developers inadvertently waiving their fair use and statutory rights to reverse engineer software products by 'agreeing' to the EULA.¹⁾

The really big problem with s 47D, however, is that it only applies to computer programs. This is a really big problem for those who are interested in reverse engineering media rich applications – like computer games. Because games are not only computer programs but are also cinematograph films,²⁾ sound recordings, artistic works, musical works, etc, then the right to reverse engineer (and to backup) completely disappears.

If we believe that we really ought to have a right to reverse engineer computer programs, including games, the wording of s 47D has to be changed to immunise copying of works and other subject matter intertwined with software programs.

The inflexibility in s 47D also raises problems for the exceptions in anti-circumvention law. The definition of both Access Control Technological Protection Measures (ACTPMs) and the broader category of Technological Protection Measures (TPMs) in s 10(1) of the Copyright Act excludes devices to the extent that they ”[restrict] the use of goods […] or services in relation to the machine or device.” Now, this carve-out is quite important, as it effectively excludes restrictions like the anti-competitive encoded garage door opener device³⁾ from protection as TPMs. However, because these devices are built often to have more than one function, especially in gaming consoles, this carve-out will not always be effective. This means that developers interested in making products for locked-down devices will have to rely on the exceptions to anti-circumvention law itself, rather than the definitional carve-out.

Liability for actual circumvention (ACTPMs) or for making or distributing a circumvention device (all TPMs) does not apply where the device will be used to do an act that does not infringe copyright in the computer program and is
“done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.”⁴⁾

As you can see in that wording, the ability to rely on the exception is limited by what exactly will infringe the underlying copyright interests. So without a fix to s 47D, we generally can't feel comfortable relying on the exceptions to anti-circumvention.

This also raises an important point – manufacturers and distributors of modchips need to meet the purposive test to ensure that they fit within the exception. That is, they must be able to show that the modchip will be used for non-infringing reverse engineering purposes.

My slides are available here: 200901-lca-games.pdf

Today I attended a briefing session on ACTA hosted by the Australian Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting, and I really got the sense that DFAT were interested in public participation. There was a good deal of frustration on both sides of the fence – participants expressed serious concerns about the lack of transparency in the negotiating process, and DFAT consistently repeated that they were bound by confidentiality agreements and could not divulge details of the draft text of the agreement. Participants in the Tokyo round of negotiations agreed that the full text of the agreement will only be made available after negotiations have been concluded and the text finalised. Understandably, there were a number of members of the audience who were hesitant to accept any of DFAT's assurances as to the content of the agreement without access to the negotiation documents.

Overall, whilst I think that the process is far too secretive, DFAT appear to have gone a long way to make available what they can, and they seem genuinely interested in hearing from interested parties in Australia. Unfortunately, input will be limited (blind) until negotiations are complete and the text finalised, but DFAT assures us that they are considering the issues thoroughly and there will be genuine opportunity to debate whether or not to sign at the end of the process.

The big points I would take away from the meeting are:

• Negotiations will go 'well into 2009';
• The Commonwealth Government is not seeking to drive domestic changes through ACTA. Overall, there do not appear to be any great changes to Australia's enforcement regime – it appears to be more focused on affecting other states;
• The Government intends to limit the effect of any treaty to trademark infringement and commercial scale copyright infringement;
• However, statutory damages for copyright infringement are on the table;
• Next meeting, in December, will consider internet distribution;
• Camcording is likely to be criminalised;
• There's still time to make relevant submissions to DFAT – indeed, they release a substantial amount of information once they receive the draft proposals before every negotiation round;
• DFAT has a copy of the Cutler report.

When pressed about the secretive process, Dr Nicholas Rodgers from DFAT noted that “the procedure is not an unusual one in trade negotiations, although it is more generally applied to free trade agreements and sub-multilateral groups.” I asked Dr Rodgers what the justifications could be for keeping the negotiations confidential in an intellectual property agreement, as opposed to a trade agreement. Dr Rodgers responded that Australia was not an original proponent of the process, and did not support the secretive manner in which negotiations are taking place. However, Dr Rodgers noted that in order for Australia to 'be in the tent' – to be involved in the negotiations – we had to abide by the ground rules set down for initial participation. The rules allow for a limited consultative group to be established, but DFAT do not like to make text available to some interest groups and not the wider Australian population. This, at least, we can be thankful for, given that rights owners typically dominate these smaller focus groups in other countries.

It seems that DFAT are genuinely interested in hearing submissions from the public, and have tried, within the bounds of the confidentiality agreement, to seek input from the public about the negotiations. Dr Rodgers repeatedly stressed that, without disclosing the draft text, we could ascertain the boundaries of the agreement by 'reading between the lines' of the calls for comments posted on the DFAT website in preparation of each round. Proposed draft text is circulated to DFAT several weeks before the negotiation rounds, and DFAT appear to make a thorough effort to extract the contentious issues in their calls for submissions. It seems, then, that the list of issues so far released by DFAT would appear to cover the main points of the agreement.

Dr Rodgers told us that he expected negotiations to continue 'well into 2009', although he did expect that each of the draft proposals would have been tabled and discussed at least once by the end of 2008. There are still proposals that DFAT has not seen. Once the text is finalised, DFAT will hold comprehensive public discussions, giving opportunity for public and parliamentary comment on the text of the agreement before Australia signs. It was repeatedly stressed that Australia was not bound to sign – we negotiate 'without prejudice' – and that the decision whether to sign or not will not be made until after the text has been released. It was noted from the floor, however, that it is sometimes extremely difficult for parties who have been heavily involved in the negotiation process to refrain from signing after negotiations have been concluded, which implies that public consultation after negotiation will be too late to be effective.

This brings us to a consideration of the substance of the agreement. Peter Treyde, from the Attorney-General's Department, insisted that Australia was “not seeking to drive domestic changes” through the ACTA process. Dr Rodgers insisted that it was not the intent of the government to include copyright infringement which is not on a commercial scale – explicitly saying that there will be no ipod searches at the border. The treaty is geared to be 'TRIPS Plus', and as Australia is already 'TRIPS Plus', DFAT and AGD are not considering many substantial changes to our domestic law. The point of the treaty, from Australia's perspective, would be to seek adoption by our neighbours of the same type of enforcement regime that we have. Representatives from Customs and the Australian Federal Police agreed that Australia's enforcement and border protection measures are effective, and that there was no real need to change; rather, they would influence the discussions in order to endorse the measures we already have. There was some mention of increased data sharing between enforcement agencies.

Dr Rodgers outlined the three rounds of negotiation that have already taken place. The first round considered extending customs application for suspension scheme beyond that required by TRIPS, and DFAT considered that TRIPS is 'broadly appropriate' in this regard. Ex officio customs searches – without notification from the rights holder – have been raised, and the point was made that Customs already has such a right in certain circumstances. There was a particular focus on targeting materials exported from Australia, or in-transit. TRIPS requires focus on the prevention of imports, but Australian Customs has some powers that go beyond TRIPS. The aim of the first round appeared to be strengthening border measures to reduce international trade in infringing material, and DFAT seemed to suggest that Australian Customs currently already does a good job in this regard ('Customs currently intercepts hundreds of thousands of pirated items each year').

The second round, in Washington, considered pre-established or statutory damages for infringement. Proponents are seeking a statutory formula or presumption for both the calculation of damages and for an account of profits. There was significant discussion on this point, as Australia does not currently prescribe statutory damages for copyright infringement. Dr Rodgers noted that statutory damages “are indeed controversial measures in the United States”, and that despite the fact that Australia is a small country, we may have allies in other countries and have more influence than we could expect in negotiations with the US. Mr Treyde noted that the practice in the US has led US copyright owners to threaten 'housewives' with highly inflated statutory damages in order to force settlements, and noted that the “US has that in its legislation, but as far as that issue has been discussed, there is certainly no agreement as to whether or not that is the way to go. For Australia, it would cause problems at a fundamental level as to the powers of the judiciary to assess and award damages, and it would be difficult to carve out IP” from the general scheme for damages.

When pressed on whether statutory damages would be in the final text of the agreement, we were told, rather ominously, that “given that the main countries that do the drafting are the US and Japan, it would be informative to look at the legislation from those countries.”

Dr Rodgers said that the issue of statutory damages is one of the key issues that DFAT are interested in hearing submissions on. He noted that DFAT considered that Australia's proceeds of crime provisions are an important tool of deterrence “and quite an apt one”. This is hopefully an indication that Australia will oppose the inclusions of statutory damages in the negotiation process.

This is probably the most significant piece of information to come out of the meeting today. It appears likely that the US will seek to have other countries adopt statutory damages regimes. We have seen these used in the US to provide extremely inflated damage awards against routine copyright infringement. The idea is obviously to discourage infringement, but it hasn't been effective at doing this, and merely results in manifestly unjust damage awards against those individuals copyright owners decide to target. DFAT appear yet to make up their mind whether they will oppose such measures in ACTA, and this would seem to be an important point on which submissions should be lodged.

The third round, held earlier this month in Tokyo, discussed criminal measures applied to copyright 'piracy' and trademark counterfeiting. Dr Rodgers informed us that DFAT considers Australia's criminal measures to be sufficient, and that there is not likely to be substantial change to these. He did note, however, that there is pressure to introduce criminal sanctions for recording of performances at public events, and in particular, the recording of films – 'camcording'. Any such criminalisation would be limited to profit making or commercial scale infringement.

Peter Coroneos, from the Internet Industry Association, asked whether there would be an effort to redefine the meaning of the notoriously loose 'commercial scale' provision in Australia's Copyright Act – specifically, whether we would be criminalising file-sharing. Peter Treyde responded that “there isn't a proposed draft text on these provisions. But I think that the main drafters seem to be that the agreement should be TRIPS plus. Australia's legislation is pretty much TRIPS plus already (as a result of AUSFTA). There is not really any suggestion that we should change this.” The Attorney-General's Department seed 'largely comfortable' with the negotiations so far on this point, as 'Australia already has those standards'. As for whether ACTA would be used to drive change in local laws, Mr Treyde noted that the Australian Government's position is that it is “not keen to adopt any measures which require substantial change” to our existing laws.

The representative from the Australian Federal Police noted that confiscation of proceeds of crimes was an important disincentive for commercial scale infringement, and that existing legislation is just about adequate. Where proceedings under the Australian Copyright Act are started by indictment, proceeds of crime can be confiscated, but not where proceedings are commenced summarily. He also noted that the Trade Mark Act was currently being reviewed to see whether offences could be brought up to the standard required for proceeds of crimes legislation to have effect.

The next negotiation round is scheduled for the first week of December in Brussels, and will address internet distribution and IT issues, enforcement best practice, international cooperation, institutional issues and opening provisions (including, importantly, the definition of 'counterfeiting'). DFAT noted that they will again seek comment on relevant issues once they have access to the proposals being put forward.

I asked whether in the next round, when internet distribution is addressed, Australia is considering making any changes to intermediary liability, or requirements for ISPs to implement graduated responses, filtering, or mandatory disclosure of subscriber information? Dr Rodgers responded that the text has not yet been released, and that we won't know until it is. We were to be “guided by our general approach to negotiations in considering our current regimes being broadly suitable.” Apparently, this is an indication that we won't be seeing wholesale changes, but it remains a very vague commitment. Mr Treyde added that Australian measures were currently approximately appropriate, and that it would be 'interesting' to see what draft text will be presented, but we'll have to wait and see.

Finally, on a personal note, a representative from the Australian Copyright Council pointedly reminded me why I continue to volunteer for Electronic Frontiers Australia. She raised the point that consumer and users are extremely under-represented at public discussions such as this one. We looked around the room, and when participants were asked to raise their hands if they claimed to represent individual users or consumers, to the best that I could see, I was suddenly alone in the room. These international trade agreements have a great potential to alter the copyright balance, affecting the way that individuals engage with copyright expression in all their activities – not just consuming, but learning, researching, remixing, sharing, critiquing and reshaping. It is extremely important that we continue to work to ensure that users and reusers of copyright expression have a voice at the international level.

Edit: I didn't mention that there was a lot of discussion about the scope of the ACTA as it applies to patents. DFAT attempted to reassure audience members that ACTA would be limited to trademark and copyright infringement, and that the border control and criminal measures discussed so far contained no reference to patent infringement. With regards to pharmaceuticals, DFAT and the AGD noted that the purpose of the border control measures were to catch 'counterfeit' pharmaceuticals – used, in this sense, to mean infringing trademarks – and not generics or patent infringing drugs. There was also significant concern from the agricultural lobby that ACTA would have spillover effects on importers of patented seed crops, and DFAT stressed that they had not seen and did not expect to see any patent issues in the negotiation. At the next meeting the preliminary provisions will be discussed, and it is expected that they will limit 'counterfeiting' to trademark and copyright infringement.

Yesterday was the first day of the IceTV v Channel Nine appeal. Here's some links to follow:

• A good article by Brian Fitzgerald and Ben Atkinson on the issues: Third Party Copyright and Public Information Infrastructure/Registries: How much copyright tax must the public pay?
• A writeup on the first day of the hearing by Peter Vogel: http://vogelross.com.au/vrblog/?p=33
• The transcript of the first day of the hearing: http://www.austlii.edu.au/au/other/HCATrans/2008/356.html

A very interesting case. Stay tuned.

In late June a decision came down (which I appear to have missed) in the England and Wales Court of Appeal quashing the conviction of Mr Modchips (aka Neil Higgs) for providing modchips in contravention of the UK anti-circumvention provisions in s.296ZB of the Copyright, Designs and Patents Act 1988 (UK).

The case, Higgs v R [2008] EWCA Crim 1324 (24 June 2008), makes for interesting reading.

The Court of Appeal held that the wording in the UK act: “prevention or restriction of acts that are not authorised by the copyright owner of that work and are restricted by copyright.” is to be read similarly to the provision in the Australian act: “to prevent or inhibit the infringement of copyright”. Accordingly, the reasoning of the High Court of Australia in Stevens v Sony [2005] HCA 58 has some application in the UK.¹⁾

The Court of Appeal concluded that a technological measure must actually prevent the infringement of copyright:

In the end, therefore, one comes back to the UK Act. Is it enough if the technological measure is a discouragement or general commercial hindrance to copyright infringement or must it be a measure which physically prevents it? To our minds the position is clear – it is the latter. Neither the Directive nor the Act would have been drafted in the way that they are if such a general form of hindrance was enough.²⁾

This all sounds like good news. Especially for Mr Modchips himself. However, the court warned that future defendants may not be so lucky, especially given that reproduction into RAM is an infringing act:

It is for those reasons we quashed the convictions. Mr Higgs is a fortunate man in that it may well be that if the legislation had been less complex and/or the Crown had had greater opportunity to consider the details of copyright law the case would have been proved on the basis that merely playing a pirated game involves making a copy in the console and thus involves infringement. He may also be fortunate that, at least this far, he has not been sued in the civil courts. There the procedure is apt to be much faster, technical slip-ups in evidence can generally be readily cured before final judgment and the remedies of damages, an account of profits, injunction and legal costs are readily obtainable. Breach of an injunction, if serious, can of course itself lead to imprisonment.³⁾

This decision places the UK law in a very similar position to the Australian law after Stevens v Sony. There is still considerable doubt as to whether modchips are legal under Australian law after the changes to the definition of 'material form'. After the changes introduced by the AUSFTA, 'Material Form' now “includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).”⁴⁾ This means that a device which prevents the playing of an unauthorised game can now be argued to prevent an infringement, rather than merely render an already infringing copy less useful. This means that the devices in the current batch of consoles may be technological protection measures, and this in turn means that modchips may now be circumvention devices, despite their usefulness for other, non-infringing, purposes.

Copyright applies to expression. The ideas which underlie the expression are not protected by copyright.
In a literary work, the idea of the protagonist being awoken by a knock is not protectible, but the expression of that idea is: “While I nodded, nearly napping, suddenly there came a tapping, As of some one gently rapping, rapping at my chamber door.”¹⁾ Nobody can prevent subsequent authors from using the idea, but copying the way in which it is expressed is the exclusive right of the author for a limited time.