Ericsson submission - Attorney-General's Department

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12 Δεκ 2013 (πριν από 3 χρόνια και 8 μήνες)

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Assistant Secretary

Business Law Branch

Attorney
-
General's Department

3
-
5 National Circuit

BARTON ACT 2600
Via Email:


Via email:

copyright@ag.gov.au

Re:
Review of Technological

Protection Measure exceptions made under
the Copyright Act 1968

Ericsson welcomes the opportunity to contribute to the Review of
Technological Protection Measures (TPMs) and we note that this submission
comments on general issues and not specific exceptio
ns as sought by the
Department in the first round.

The role of TPMs can be critical to
the
stimulation or hindrance of innovation
and creativity in any copyright framework
,

because innovation and creativity
are themselves underpinned by
technology neutrali
ty, interoperability and
open standards
.

To the extent that TPM exceptions have not kept up with changes in
technology and its application to new forms of entertainment in a broadband
environment,
t
here appears to be a case for a more
reasonable

approach
to new exceptions
. This approach will help keep the right balance between
the protection of rights and the encouragement of new creative works.



1

Ericsson at a glance

Ericsson is the world’s leading provider of technology and services to telecom
operators.

Ericsson is the leader in 2G, 3G and 4G mobile technologies, and
provides support for networks with over 2 billion subscribers and has the
leading position in
the
managed services

business domain
. The company’s
portfolio comprises of mobile and fixed infr
astructure, telecom services,
software, broadband and multimedia solutions (including IPTV and Mobile TV)
for operators, enterprises and the media and broadcasting industry. The ST
-
Ericsson joint venture
brings
smarter communication, mobile entertainment,
as
well as the benefits of access to mobile broadband connectivity to more than
two billion people around the globe
.

As the world’s leading technology provider, Ericsson plays a key role in the
development of standards in fixed and mobile voice, data (IP)
and TV/video
technologies, and hence is a key actor in the convergence process by
enabling and empowering the convergence process with technological means
and solutions.
Convergence is a fundamental game changer and it is a
product created by the fifth tec
hnological revolution
, i.e.

IT and Telecom.

Ericsson has one of the industry’s strongest
telecom
technology portfolios,
with around
30
,000 granted patents worldwide and is the leading patent holder
for 3GSM family of mobile network equipment standards
:
GS
M

/

UMTS

/

WCDMA

/

LTE.

Ericsson is the leading vendor in supplying LTE equipment to
mobile operators around the world
, and is
a net receiver of licensing royalties
with more than 90 patent
-
licensing agreements in place.

In agreement and in
support of tel
ecommunication developments,
the
Attorney
General’s Department

as well as
Government

authoritie
s around the world
play a significant role in maximizing the societal benefits of convergence and
in creating incentives for industrial and societal transformati
on toward a digital
networked society.

Ericsson has been an active industry participant in Australia since the 1950s,
and currently has a strong presence of around
1
4
00 employees, delivering
high
-
value professional services cap
ability across the
Asia Pacif
ic
region, and
establishing
the first LTE Global Competence Centre for technical innovation
and global support. Locally,
Ericsson is also a member of following Australian
Industry Associations: AIG, AMTA
, and
CommsAlliance.



2

The Starting Point for Conside
ration of
TPMs

Kabushiki Kaisha Sony Computer Entertainment v Stevens
sets

the
scene.

In that case the High Court accepted that a TPM must be something which
“prevents or inhibits the person from undertaking acts which, if carried out,
would or might infr
inge copyright in the work”. The Court held that the use of
the “mod chip” in this case was not for the purpose of copying the copyright
-
protected game, but merely for the purpose of accessing it. In other words
there is a clear distinction between copying

a game and accessing a game
that may
-

or may not
-

already be an infringing copy.

The Court noted that “in construing a definition which focuses on a device
designed to prevent or inhibit the infringement of copyright,
it is important to
avoid an overbro
ad construction which would extend the copyright monopoly
rather than match it
.”

It is important for the purposes of this Review to recall obiter in the concurring
opinions of Justices McHugh and Kirby. McHugh noted that the TPM
provisions were a result
of a legislative compromise “that is the product of
intensive lobbying, directly or indirectly, of Ministers and parliamentarians by
groups in the industry seeking to achieve the maximum protection or
advancement of their respective interests. The only pur
pose of the legislation
or its particular provisions is to give effect to the compromise. To attempt to
construe the meaning of particular provisions of such legislation not solely by
reference to its text but by reference to some supposed purpose of the
l
egislation invites error.”

Justice Kirby noted that Sony’s interpretation would lead to a position in law
which ‘clearly impinges on what would otherwise be the legal rights of the
owner of a Sony CD ROM and PlayStation console to copy the same for
limit
ed purposes and to use and modify the same for legitimate reasons, as in
the pursuit of that person’s ordinary rights as the owner of chattels’.

A person who

purchases a Sony CD ROM

in Japan or the US ’should … be
entitled to copy the CD ROM and modify th
e console in such a way as to enjoy
his or her lawfully acquired property without inhibition’. Further he says a
broad interpretation here would ‘chill … technological development’ by chilling
new technologies to protect copyright owners. In other words, d
eter
innovation.




Directly reinforcing
Justice Kirby’s
comments in 2005 on a person’s ordinary
rights as the owner of chattels is that in 2010, the Electronic Frontier
Foundation (EFF) successfully convinced the U.S. Copyright Office to allow an
exemption
to the general prohibition on circumvention of copyright protection
systems under the Digital Millennium Copyright Act to permit jailbreaking of
iPhones for the sole purpose of allowing legally obtained applications to be
added to the iPhone.

And as a fi
nal point on Sony v Stevens, the Court noted that the Act provided
for a penalty of up to five years imprisonment for making or selling a
circumvention device, and stated that this militated in favour of a more
restrictive interpretation.

3

Ericsson’s Posit
ion

Ericsson acknowledges the importance of the High Court’s analysis of the
issues in 2005. It gives guidance to the development of legal frameworks for
digital technologies based on balance, fairness and practicality.

In the case of TPM and legal provisi
ons for the use of D
igital Rights
Management, (D
RM
)

as well, the future policy should


in the
same
spirit of
Sony v Stevens
-

stipulate that any statutory protective provisions against
circumvention technologies that have been introduced or will be introd
uced
into copyright legislation or other statutes in Australia must be bas
ed on three
guiding principles:
1
)
technology neutrality,
2)
interoperability and
3)
global
and open

standards.

1)

There are two main elements of
technology neutrality

in the
E
uropean
Community
sphere in which
Ericsson is intimately involved:



First
ly

that the fundamental rules should be the same online as off
-
line; and



Second
ly
, that a legislative framework should not favour or
discriminate against a particular technology.

2)

Interoperabil
ity

is the ability of two or more systems or components
to exchange information and to use the information that has been
exchanged
.


3)

Open standards

are standards that are publicly available and have
various rights to use associated with them and may also h
ave various
properties of how they were designed
. Proprietary standards offered on
F
air

Reasonable and Non
-
Discriminatory (FRAND) terms also facilitate de
-
facto openness even in situations where technology is based on
proprietary standards
.


The applicatio
n of these principles


where necessary creating new lawful
exceptions
-

will ensure that end users can exercise their rights and at the
same time TPM measures do not become a barrier that in practice limit an
end
-
users ability to benefit from exceptions.



Hence,
statutory anti
-
circumvention provisions as well as statutory provisions
regarding the use of
TPM provision
s

such a
s
t
he use of D
igital Rights
Management (DRM)
and

Conditional Access (
CA
)

must only protect
technologies that:



are themselves built on

an interoperable set of proprietary standards
or consist of TPM/DRM/CA technologies that are based on open

and

industry
-
wide standards, and



the
statory provision

protecting the use of

TPM such as DRM/CA
must not limit
-

where applicable
-

an individuals’
ability to benefit from
exceptions, such as the right to make private copies or time shift

for
later viewing.

Ericsson
appreciates the opportunity to have participated in the TPM review
process, and
is pleased to be
contacted in relation to any points rais
ed in this
submission.


Yours sincerely,


Kursten Leins

General Manager, Government Affairs

Ericsson Australia and New Zealand


Phone

+

61 408 878 471

Email

kursten.leins@ericsson.com