The limits of copyright protection

In a series of posts, Kim Weather­all has illu­mi­nat­ed the impact of the High Court’s deci­sion that Aus­tralia copy­right law—for the present— pro­tects the consumer’s right to access copy­right mate­ri­als acquired in con­tra­ven­tion of the right owner’s attempts to seg­ment the glob­al mar­ket sup­ply (by price dis­crim­i­na­tion). I read this deci­sion, casu­al­ly, as a con­fir­ma­tion of the right to access par­al­lel imports. But there’s more …

Pro­fes­sor Weather­all says

… the judg­ments get at some­thing which is fun­da­men­tal, but which it is easy to for­get. And that is this: that the tech­ni­cal mea­sures used by Sony are not, in essence, about pre­vent­ing infringe­ment of copyright.

Infringe­ment hap­pens regard­less of whether mea­sures like Sony’s are used. While anti-cir­cum­ven­tion laws are sold as being about ‘pre­vent­ing pira­cy’, the fact remains: the Sony mea­sures do not pre­vent infringe­ment, no mat­ter which way you turn it. That’s why, in the end, the court has decid­ed the way it did.

In real­i­ty, mea­sures like those used by Sony are about con­trol­ling use of and access to Sony PlaySta­tion con­soles. Sony con­trols all kinds of things about the way peo­ple use Sony con­soles. For exam­ple: they con­trol whether peo­ple can:

play legit­i­mate­ly pur­chased games sold in over­seas mar­kets;

play games cre­at­ed by some­one oth­er than Sony on the Sony con­sole (some­thing that can­not be done on a non-chipped con­sole owing to the absence of an access code).

So while Sony can argue that it want­ed to pre­vent pira­cy (it clear­ly did), and that the mea­sures act­ed in part to deter pira­cy (they clear­ly could), Sony’s own approach to the mea­sures mud­dies the waters. It doesn’t just act to pre­vent infringe­ment, and that point is tak­en notice of by the Court here. One can’t help but sus­pect the legal rea­son­ing would look dif­fer­ent, in this case, if Sony only used its pow­er over the con­sole to actu­al­ly pre­vent use of ‘pirat­ed’ disks. The way Sony goes about its busi­ness quite appar­ent­ly takes its mea­sures out­side the heart of what is cov­ered by the leg­is­la­tion: and jus­ti­fies the High Court’s approach.”

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