Other Intellectual Property Law Issues

Last Updated: 27 February 2006

Criminalisation of watching Pay TV without paying

The Commonwealth Attorney-General undertook a short policy review concerning unauthorised access to and use of subscription broadcasts before declaring an intention to "criminalise some unauthorised activities that are not currently criminal offences, including dishonestly accessing a pay TV service in a private home" - see A-G's media release. EFA's submission in response to the Discussion Paper (PDF) argued against criminalisation because it is an inappropriate way to deal with the issue and will set a very undesirable precedent.

Stevens v Sony - the Mod-Chipping Case

The Australian High Court unanimously overturned the Full Court of the Federal Court of Australia and restored the judgment of the trial judge, who held that the TPM used in the Sony Playstation was not a 'technological protection measure' within the meaning of s 10(1) of the Copyright Act 1968.Central to this decision was the fact that the TPM used within the Playstation did not prevent an infringing copy from being made, it merely prevented an infringing copy from being played on an unmodified Playstation - that is, it was an access control.

The Stevens case was decided on the law as it stood as of 4 March 2001. Significant changes have been made to the Copyright Act since that time, most notably as part of the implementation of the Australia-US Free Trade Agreement in 2004. In particular, it is possible that under current Australian law Sony's device may now qualify as a TPM.

Nevertheless, the Stevens case has important implications for copyright law in Australia. The High Court preferred a narrow interpretation of the definition of a TPM, explaining that it is "important to avoid an overbroad construction which would extend the copyright monopoly rather than match it" (at paragraph [47]). Also, the Court rejected the notion that the clear purpose of the TPM laws was to protect access controls, deciding instead that the law reflected a compromise between various interests.