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Thursday, 17 August 2000
Page: 16596

Senator STOTT DESPOJA (Deputy Leader of the Australian Democrats) (12:39 PM) —The Democrats will not be supporting the opposition amendments for largely the same reasons outlined by the minister. We believe that the bill provides an enforcement regime to prevent the circumvention of copy protection mechanisms. At the same time it permits users who already have a legitimate claim to be able to bypass protection mechanisms to do so if there is no other way to access code or content. Of particular significance among these legitimate uses of circumvention devices are those provided for in the Copyright Amendment (Computer Programs) Act 1999. This act passed through the Senate uncontested last year. It encourages the creation of secure, error free and interoperable software. It is a particularly enlightened piece of legislation that permits software decompilation for security analysis, error correction and to access APIs for the design of interoperable software. It affords independent software developers a means for getting at the secret APIs that large software corporations use to give their software an edge of greater interoperability over their competitors.

The Democrats have long been supporters of open and interoperable information systems, so we tend to regard with great suspicion any attempts to unreasonably constrain them. It is on this basis that we oppose the ALP's proposed amendments to the regime. We do not believe they are, as has been suggested, merely technical amendments. In fact, we believe they seriously undermine existing decompilation principles. First, they place suppliers of circumvention technologies in the position of only being able to legitimately supply such technologies if it is a fact that the work or subject matter upon which the person to whom they are supplying the technology will use it is not readily available. Thus, instead of being able to rely upon a signed declaration, the supplier is faced with the problem of having to ensure that the key item of the declaration is in fact truthful if they want to survive a civil action brought against them. This will either force suppliers to extensively and unreasonably investigate the proposed uses of their software by their customers or, and more likely, to choose not to supply it for fear of civil action.

Secondly, the ALP proposes to delete the words `in a form that is not protected by a technological protection measure' from several paragraphs. One of the key items of the declaration that a qualified person must make to a supplier to be lawfully supplied with a circumvention device is that the work or subject matter upon which they will be using the circumvention device in a permitted way is not readily available in a form that is not protected by a technological protection measure. In other words, they are only able to employ decompilation tools or otherwise bypass protective mechanisms if there is no readily available form of the work that they can get at without those tools.

The ALP amendments alter this so that a qualified person is able to employ a circumvention device for a permitted purpose only if the work or subject matter is not readily available to them. In other words, if the work is readily available but only in a technologically protected way, a qualified person would not be able to legitimately obtain circumvention tools even for a permitted purpose. These amendments would place a similar limitation on the creation of circumvention devices. The only plausible interpretation of these proposed changes is that they are intended to make things harder for legitimate users of circumvention software. I do not believe they will have any impact or any effect on software pirates, who are unlikely to think about the Copyright Act or making a declaration, false or otherwise, when obtaining the wares necessary for their acts of piracy.

Amendments negatived.