Implementing Article 17.4.7 – the emergence of the access right as a neighbouring right to copyright

Dilan Thampapillai

In May 2004 Australia and the United States signed the Australia-United States Free Trade Agreement (AUSFTA).  In doing so, Australia has agreed to adopt a restrictive regime for technological protection measures (TPMs) that would commence by 1 January 2007.  Australia’s TPM obligations under the AUSFTA, which are modelled on the US Digital Millennium Copyright Act (DMCA), go far beyond that which is required by the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT).  

Taken to their extreme TPMs can restrict a consumer’s right to use lawfully acquired property, lock up material that is intended for the commons and serve purposes that fall well outside the ambit of copyright.  As contemplated by the now defeated broadcast flag requirement in the United States, TPMs can impose burdensome technical and legal requirements on technology innovators.  In both Australia and the United States attempts to advance TPM protection beyond the borders of direct copyright protection have been defeated in the courts.  In the United States the broadcast flag scheme was found to be beyond the ambit of the Federal Communication Commission’s powers.  In Australia, in the recent Stevens v Sony case, the contested measures were found not to be TPMs for the purposes of the Copyright Act 1968 (Copyright Act).

However, the approach taken by Australia’s High Court in the Stevens case is unlikely to prevail as Australia implements its AUSFTA obligations.  In this regard the type of scheme that Australia is facing, a WCT-plus TPM scheme, is indicative of the copyright owner-centric global TPMs agenda which is being pursued by the United States outside the WIPO and WTO processes by virtue of bilateral free trade agreements.  Whilst this TPMs agenda is a response to widespread digital piracy, the US experience itself makes it clear that TPM laws need to be counter-balanced by adequate safeguards.

In my talk I will examine the pros and cons of the emergence of the access right as a neighbouring right under article 17.4.7.  I will consider the scope of the article 17.4.7 obligation and also examine how it may be interpreted in light of the recent recommendations of the House of Representatives Legal and Constitutional Affair Committee. I will canvass the safeguards that may be required to ensure that the access right does not undermine competition, innovation and interoperability.  I will also examine the general case in favour of the access right as a neighbouring right.  In doing so I will examine the US experience of the Digital Millennium Copyright Act (DMCA) and consider whether Australia faces similar issues.