TPM & TPP: The constitutional nexus

The US trade representative's (USTR) IP chapter for the Trans-pacific Partnership Agreement (TPP) suggests significant changes to the regulation of technological protection measures (TPMs). These changes extend the scope for causes of action and specifically limit exceptions to the circumvention of TPMs.

According to a leaked document the USTR has proposed the following exceptions:

• Reverse engineering for interoperability
• Research into flaws and vunerabilities in encryption
• Inclusion of a component to prevent access to inappropriate content by minors
• Security analysis and testing
• The removal of private data gathering components - so long as their removal does not then allow access to the work
• Law enforcement
• Access by public libraries for the sole purpose of acquisition decisions

There is a further exception allowed for when a a legal or administrative decision deems that the effect of the TPM makes the non-infringing use no longer available - but that exception can only be existent for 3 years.

So, the total exceptions are extremely narrow, even taking away some of the narrow exceptions existent in the Australian Copyright Act such as region encoding in s10(1)(c). Outside of these exceptions the TPP prescribes a "separate cause of action, independent of any infringement..." (emphasis mine). So the circumvention of a TPM becomes a cause of action per se.

This significantly changes the landscape of copyright. Making a modification to your own property, regardless of whether it infringes copyright, can now be a cause of action. Ultimately this breaks the nexus between a TPM being a copyright-related device to being a device that limits rights to chattels. This breaks the nexus between the TPM provision and the constitutional head of power that enables the Commonwealth to legislate with regard to copyright, section 51 (xviii).

In the 2005 Stevens v Sony case, at [218] Kirby, J comments:

"To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power."

This is not to say that the imposition of the TPP would necessarily be unconstitutional as the Commonwealth has other heads of power upon which it could rely, such as the external affairs power in s51(xxix). However, it is of concern that external treaties such as the TPP should be used to enable the Commonwealth to legislate for the regulation of the use of an individual's private property.

Needless to say, the invasion of copyright into the realm of the regulation of chattels represents a significant intrusion by the international treaties system into citizen's ordinary enjoyment of their private property. It significantly re-balances the rights inherent in intellectual and real property and has the potential to fundamentally change the rights that one has over their own property.