The death of consumer liberty

Imagine that the makers of a board game only allowed you to play it on wet Saturday afternoons. Now imagine that the Australian Government made it illegal to play that game on any other day. If the board game is released on a DVD or another electronic format, the new proposed amendments to Australia's copyright legislation do exactly that.

From the first of January 2006, it will be illegal to access electronic material in a way that the makers don't allow. Since 2000, it has been illegal to make or sell devices which break digital locks, but not to break the digital lock itself. Following the Australia – United States Free Trade Agreement, Australia agreed to extend liability for circumventing these locks, or Technological Protection Measures (TPMs).

The 2005 landmark High Court case of Stevens v Sony highlighted that anti-circumvention law (as it stands before these proposed amendments) exists to “prevent or inhibit copyright infringement”. It does not, and should not, exist to prevent consumers from using material that they purchase in ways which do not infringe copyright. In that case, Sony could not prevent people from modifying their PlayStations in order to play games they legitimately purchased overseas.

Copyright owners may have legitimate reasons for placing locks on their material. These locks can certainly make it more difficult for users to make infringing copies of movies, music, or books in electronic form. But these locks also have illegitimate purposes when they seek to restrict use, not copying.

Anti-circumvention law has had a troubled history on this point. The High Court ruled that copyright owners couldn't control the use of their material. The House of Representatives Standing Committee on Legal and Constitutional Affairs agreed, and recommended that, in order to grant protection to these digital locks, we should “clearly require a direct link between access control and copyright protection”. The Committee also recommended that these locks should not be protected if they restrict competition. The Attorney-General's Department has clearly said that it accepts both of these recommendations. Indeed, the first draft of the copyright amendments clearly defined TPMs as devices which prevent or inhibit copyright infringement.

The first draft enshrined the principle highlighted by the High Court that Australians should have the liberty to use their legally acquired property as they see fit. In three short weeks and a legislative two step, that principle has been destroyed. The new copyright bill doesn't require protection of copyright interests. Instead, it gives copyright owners the broad ability to control use of their work, if they can merely show that the lock is used “in connection with the exercise of copyright”. Interpreted broadly, this potentially means that any lock will be protected from circumvention, as long as it controls access to copyright material.

This new broad language has enormous consequences for Australian consumers. The proposed law will give copyright owners wide ranging powers to restrict the use of copyright material any way they want. Subject to competition law and express exceptions for region coding, the copyright owner now has the unfettered ability to determine how you can use your legitimately purchased DVD, game, music, or electronic book. We're talking about CDs you can't use in your car, games you can't play with your kids, and books you can't read on Thursdays. This may seem far-fetched, but it is really a fundamental reshaping of consumer law in the guise of copyright legislation.

Copyright exists to protect people from unauthorised copying of their material. It does not exist to allow the authors of a legitimately purchased item to control how a consumer uses it. There is no justification for giving this power to copyright owners. International law doesn't require it. The Australia – US Free Trade Agreement doesn't require it. Even our High Court has said that we shouldn't do it. So why have we? What has changed so much in the last three weeks, that the Australian Government has suddenly severely reduced the rights of consumers without any public debate or explanation? Why exactly have we sold out our consumer liberty to the benefit of large media corporations?

Copyright law is important. If Australia is to remain competitive in the global marketplace, we need to ensure that hard work and investment in the knowledge economy does not go unrewarded. But that doesn't mean that we should protect the interests of copyright owners at any cost. This new bill destroys the balance between copyright owners and consumers. It gives protection to the most absurd of limits that can be imposed by technology. There is no reason why copyright owners need to be able to control how and where we interact with copyright material. This bill simply goes too far.

The only way that Australia will survive such a bold attempt to reduce our freedom and quality of life is for ordinary Australians to actively engage in this debate – go online, talk to family and friends, and most importantly, voice your opinions to your local member and your state Senators. We have little more than a few weeks before parliament will decide what law will be implemented. Educate yourself on these issues, as they promise to fundamentally alter our rights, our economy, and the way we use digital technology. Say it clear: technological protection measures should protect copyright itself, not the use of copyright material.