Last minute changes snuck into Aussie DMCA

Australia is fast-tracking its own version of the US's disastrous Digital Millennium Copyright Act (DMCA) — the country became obliged to impose this when PM John Howard signed the Aussie-US free trade agreement into law. The worst part of the legislation is undoubtedly the "anti-circumvention" provisions that ban breaking software locks, even if you own the material they lock away. Anti-circumvention lets any company impose any terms it wants on you, like Apple: "you can only play the music we sell you on the players we make or authorize." Anti-circumvention creates anti-competitive lock-in situations, takes away fair dealing rights, and punishes people who buy their media instead of getting infringing copies.

A last minute change has been introduced into the new bill and it's so arcane that legal experts differ strongly on what the effect will be. But with the bill fast-tracking through Parliament, it's likely that this mystery clause will be passed unless the brakes are put on the process. EFF has information on the changes and how Australians can get involved:

While the new version's TPM ban is broader, the Bill does contain two carve-outs: First, there's no legal protection for region-coding access control technologies on video games and DVDs. That is likely to avoid some of the potentially anti-competitive impacts of geographic market segmentation via TPMs – a practice that involves no copyright right. The carve-out is presumably designed to preserve the 2005 Australian High Court ruling in the Sony v. Stevens PlayStation modchip case, but unfortunately, does so in the narrowest possible way. Second, there's an attempt to exclude misuses of TPM provisions on embodied computer programs like the printer cartridge and garage door opener cases invoking the DMCA.

How bad is the last minute change in language? Even Australia's top legal minds are unsure of the precise impact. Unless the bill is delayed there will be no opportunity to assess that before the highly complex bill is pushed to a speedy vote.

But that's not the only problem with the bill. It also creates new criminal penalties for copyright infringement. It introduces new summary and strict liability offences and criminal penalties for non-commercial infringement. These rules would apply to children as young as 14, and could make everyday Australians criminals for uploading lip-synched videos to YouTube and other commonplace activities.


Update: David Cake of Electronic Frontiers Australia sez, "Yes, the government is trying to push through this bill disgracefully fast – the senate committee has been allotted only 4 hours of public hearings for a 213 page bill, including major changes to the bill that have been introduced between public drafts and the introduction of legislation.
Electronic Frontiers Australia has been able to lodge a submission to the senate committee objecting to these changes, but the time frame before the bill is due to be voted on is very short, and reversing these changes will be difficult."