[Linux-aus] FTA circumvention devices

Anthony Towns aj at azure.humbug.org.au
Thu Mar 4 11:46:02 UTC 2004

Page 17-7 of the IP chapter:

7 (a) In order to provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures
that authors, performers and producers of phonograms use in connection
with the exercise of their rights and that restrict unauthorized acts
in respect of their works, performances and phonograms each Party shall
provide that any person who:

	(i) knowingly, or having reasonable grounds to know, circumvents
	without authority any effective technological measure that controls
	access to a protected work, performance or phonograms, or other
	subject matter; or

	(ii) manufactures, imports, distributes, offers to the public,
	provides or otherwise traffics in devices products or components
	or offers to the public or provides services which:

		(A) are promoted advertised or marketed for the purpose of
		circumvention of any effective technological measure, or

		(B) have only limited commercially significant purpose or
		use other than to circumvent any effective technological
		measure, or

		(C) are primarily designed, produced or performed for
		the purpose of enabling or facilitating the circumvention
		of any effective technological measure

	shall be liable and subject to the remedies provided for in Article
	17.11.13. Each Party shall provide for criminal procedures and
	penalties to be applied where any person is found to have engaged
	wilfully and for purposes of commercial advantage or financial gain
	in the above activities. Each Party may provide that such criminal
	procedures and penalties do not apply to a nonprofit library, archive,
	educational institution or public noncommercial broadcasting entity.

(b) Effective technological measure means any technology, device or
component that, in the normal course of its operation, controls access
to a protected work, performance, phonogram, or other subject matter,
or protects any copyright.


Yay. Linux DVD playing is doomed.

7(e) then goes on to limit the exceptions that can be created to:

	(i) reverse engineering for interoperability
	(ii) crypto research
	(iii) parental controls
	(iv) security testing
	(v) protecting privacy
	(vi) law enforcement & national security
	(vii) access by nonprofit libraries for deciding on acquisitions
	(viii) "non-infringing uses of a work, performance or phonogram in
		a particular class of works, perfomances or phonograms,
		when an actual or likely adverse impact on those
		non-infringing uses is credibly demonstrated in a
		legislative or administrative review or proceeding;
		provided that any such review or proceeding is conducted
		at least once every four years from the date of conclusion
		of such review or proceeding."

These, evidently over-generous, exceptions are then limited further in 7(f),
although I don't understand exactly what that clause is saying.

The (viii) exception might be usable for violating region locking on PS2
games and playing DVDs on open source software. We probably need to make
sure that the "administrative review/proceeding" process is determined
ASAP so we can use it immediately though. Anyone familiar enough with
setting up PVRs or modchipping PS2's so they can do simple demos of the
cool things you can only do (like having a free PVR device that plays
DVDs, or playing PS2 games only available in Japan) with circumvention
devices for the polis? The important thing to point out there is that
the stuff you're selling (the modchips) or giving away for free (free PVR
software) doesn't compete with the *artists* (the game programmers or the
DVD makers), and in fact supports their businesses by making their works
more easily/widely accessible, but only interferes with multinationals'
attempts at monopoly (Sony stopping you from writing games without paying
licensing fees, DVD player manufacturers not wanting free competition,
and everyone wanting to protect themselves from parallel imports).

The real test here is to work out some way for J. Random Australian Linux
User to download some software to play DVDs without breaking any laws.

Rights management information can't be modified or removed. Don't see
how this should bother us.

The criminal provisions for pay-tv descramblers seem to be limited to
"program-carrying satellite signals", so don't seem like they should affect
us either.

17.9 Patents

1. Each Party shall make patents available for any invention, whether a
product or process, in all fields of technology, provided that the invention
is new, involves an inventive step, and is capable of industrial application.
The Parties confirm that patents shall be available for any new uses or
methods of using a known product. For the purposes of this Article, a Party
may treat the terms "inventive step" and "capable of industrial application"
as being synonymous with the terms "non-obvious" and "useful" respectively.

2. Each Party may only exclude from patentability inventions:

	(a) the prevention within their terriotry of the commercial
	exploitation of which is necessary to protect /ordre/ public
	or morality, including to protect human, animal, or plant life
	or health or to avoid serious prejudice to the environment,
	provided that such exclusion is not made merely because the
	exploitation is prohibited by law; and

	(b) diagnostic, therapeutic and surgical methods for the treatment
	of humans and animals


Paragraph 9. says that .au has to grant patents even if the invention is
disclosed by the author up to 12 months before filing.

Hrm. "Each Party shall provide that a disclosure of a claimed invention
is sufficiently clear and complete if it provides information that
allows the invention to be made and used by a person skilled in the art,
without undue experimentation, as of the filing date." We could probably
get software patents to require inclusion of source code under that term
-- at the very least by offering expedited processing for patents that
include complete source code. (Without source code, you have to make use
of "undue experimentation" almost by definition) That'd also help answer
"Each Party  shall provide that a claimed invention is sufficiently
supported by its disclosure if the disclosure reasonably conveys to a
person skilled in the art that the applicant was in possession of the
claimed invention, as of the filing date."

I can't see any particular problems that would ensue if we had shorter
patent terms for software than, say, for drugs.

I think we can probably work with this.

Ooo. They're doing 5-year pseudo patents for drugs that need government
approval. Maybe this means we'll actually get things like melatonin
available in Australia.

17.12 Transitional Provisions

Recognizing that Australian law currently restricts making and
distributing devices or services to circumvent effective technological
measures, Australia shall fully implement the obligations set forth in
Article 17.4.7 within 2 years of the date of entry into force of this
Agreement, during this transition period, Australia shall not provide
for or adopt any new measures inconsistent with the obligations set out
in Article 17.4.7.

Hrm. Ecommerce chapter:

"Each Party shall maintain domestic legislation for electronic authentication
	(a) permits parties to an electronic transaction to determine the
	appropriate authentication solutions and implementation models for
	their electronic transaction, without limiting the recognition of
	technologies and implementation models; and

	(b) permits such parties to have the opportunity to prove in
	court that their electronic transaction complies with any legal
	requirements with respect to authentication.

There's some stuff about ISP liability in the IP section. I ran out of
enthusiasm to try understanding it though.



Anthony Towns <aj at humbug.org.au> <http://azure.humbug.org.au/~aj/>
I don't speak for anyone save myself. GPG signed mail preferred.

             Linux.conf.au 2004 -- Because we could.
           http://conf.linux.org.au/ -- Jan 12-17, 2004
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