Fair Dinkum Fair Dealing

7 October 2005:

High Court Copyright decision a victory for libraries and research

The Australian Library and Information Association applauds the judgment of the High Court in yesterday's judgement on the case of Stevens v Sony. The landmark decision will safeguard the public domain and our intellectual freedom from limitations imposed by commercial organisations.

Sony brought legal action against Eddy Stevens, who had mod-chipped Sony Playstation consoles. The High Court of Australia's judgment yesterday held that the Sony protection device was not a 'technological protection measure', as Sony had claimed. The case has established that the modification of the Sony PlayStation, so that users could play games lawfully purchased outside the country, was not illegal according to Australia's anti-circumvention laws. But successfully mod-chipping a Playstation is not why this is a landmark case for libraries and researchers. This decision preserves the 'fair dealing' aspects of Australian copyright law that are so vital to an information society, making public access to information and unimpeded research and study something that cannot be allowed or disallowed by copyright owners.

Justice Kirby spoke of the concerns of libraries that "Sony's interpretation of s 116A would enable rights holders effectively to opt out of the fair dealing scheme of the Act". He maintained: "This is not an interpretation that should be readily accepted."

Jennefer Nicholson, the executive director of the Australian Library and Information Association, said: "This decision will enable libraries and archives to provide information services to readers without undue technical restraints. It also reinforces the importance of the fair dealing provisions in striking a balance between the rights of copyright owners and users."

Dr Matthew Rimmer of the Faculty of Law at the ANU praised the decision: "The High Court has handed down a principled decision on Australia's Digital Agenda Copyright Act, which upholds fundamental freedoms, access to information, and fair competition."

The Australian Digital Alliance, the Australian Libraries Copyright Committee and the Australian Competition and Consumer Commission had earlier intervened in the case because of wider concerns raised about freedom to access information and the undermining of competition in the marketplace.

Under the Australia-United States Free Trade Agreement, the federal government is obliged to provide broader protection of "technological protection measures", and narrow the available exceptions. The High Court decision makes it clear that the federal government will have to craft such laws carefully to take into account broader considerations about access to knowledge. As Justice Kirby observes: "Such considerations included the proper protection of fair dealing in works or other subject matters entitled to protection against infringement of copyright."