20.111 Concerns about contracts supplanting copyright law are ‘commonly coupled with concerns that technological forms of protection, such as encryption, will give copyright owners effective control over access to, and uses of, copyright material in digital form’.
20.112 The use and circumvention of TPMs raise similar policy issues to those raised by contracting out. It has been argued, for example, that if parties are not able to contract out of the fair dealing exceptions, neither should copyright owners be able to make fair dealing irrelevant by means of technological access controls.
20.113 Just as the CLRC recommended that the operation of some copyright exceptions should be preserved by statutory restrictions on contracting out, a number of previous reviews have reached similar conclusions in relation to TPMs.
20.114 In 2004, the Digital Agenda Review concluded that the Copyright Act should be amended to provide that ‘any attempt to contractually prohibit the use of a circumvention device or service for the purposes of fair dealing is unenforceable’. In 2006, the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended that an exception for ‘fair dealing with copyright material (and other actions) for criticism, review, news reporting, judicial proceedings, and professional advice’ be included in new TPM provisions of the Copyright Act.
20.115 The TPM provisions subsequently enacted by the Copyright Amendment Act 2006 (Cth) did not contain any such exception, in part because of obligations under the Australia-US Free Trade Agreement.
20.116 If limitations on contracting out are implemented, consistent amendments to TPM provisions may be justified. That is, there may be little point in restricting contracting out of exceptions if TPMs can be used unilaterally by copyright owners to achieve the same effect.