Do Recent Copyright Act Amendments Contradict The Constitution? The Big Guns Put In Their Two Cents

Recent Amendments to the Copyright Act

Late last year the Copyright Act was bolstered by a host of new laws which extend copyright owners' powers against copyright infringers. The changes reflect a growing divide between Governments and large corporations who own the rights to films and music on the one hand, and those who support freedom of access on the other.

The Political Climate Underpinning The Amendments

The US Free Trade Agreement (FTA) forced Australia to toughen intellectual property laws, focussing particularly on copyright. The laws reflect the US policy which favours the stringent copyright protection in order to foster innovation and protect corporate profits.

In the recent Federal Budget the Government announced spending of $12.4 million over the next 2 years on intellectual property law enforcement. This is reflective of the Government's growing focus on copyright protection against a backdrop of increasing allegations of piracy and copyright infringement via file sharing resources on the Internet.

Are the Amendments Constitutionally Valid?

One of the recent amendments relates to the use of devices that circumvent 'technological protection measures' fitted in devices like DVD players and Playstation consoles. Under the amendments, such devices are illegal even if used to play legitimate copies of DVDs purchased in different global 'regions'. In addition, the circumvention devices are illegal forever, despite the fact that copyright exists for only a finite period.

Gadens has previously queried which power the Commonwealth Government relies upon in making such provisions, which appear to extend beyond the scope of copyright protection. You can view our earlier media release which raised this question at the following URL. http://www.gadens.com.au/Documents/update_vodcast_191006-1060-2.htm

His Honour Mr Justice Kirby recently added his two cents at a speech opening NSW Arts Law Week. His Honour foreshadowed a constitutional challenge to the new copyright laws which appear to exceed the Federal Government's legislative powers. His Honour told the audience that the matter had been brought to his attention by His Honour Mr Justice Gummow, another High Court justice.

The Government's Power to Make Laws About Copyright

The Federal Government can make laws about any of the matters referred to in section 51 of the Constitution. Section 51(xviii) of the Constitution permits the Government to legislate about "[c]opyrights, patents of inventions and designs, and trade marks".

The trouble is that the amendments described above do not strictly relate to copyright, and arguably fall outside of the power granted under section 51(xviii).

Some commentators suggest that laws enacted pursuant to the FTA would fall within the scope of the Government's external affairs power (section 51(xxix)). Gadens questions whether the external affairs powers operates as a carte-blanche for the Government to write laws in relation to any matter it chooses, so long as it is the subject of a treaty. In our view, the external affairs power is not so liberal.

So are the amendments Constitutional? The answer at this stage is maybe. For anyone considering mounting a constitutional challenge to the copyright laws, you might have two judges on your side already.
Article by Nathan Mattock and Hannah Petrie

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