The Australian High Court

The Australian High Court has a better decision than the UK court. It should be recalled that the Australian Court’s position is that mod chip is not a technological protection measure while in UK, the modification of consoles is declared as illegal since 31 October 2003 when the Copyright Designs and Patents Act was amended. This allows a person to hold another responsible and liable in case of circumvention of TPM and thereby make an unauthorised use of the copyrighted works.

It is believed that the UK decision is based on an erroneous assumption that CD-ROM’s are not susceptible of destruction and can easily be replaced by requesting a copy from the licensor. The Court also mentioned that back-up copies may only be allowed when there is no copy protection device that would have to be circumvented (Gardiner, 2005, p. 1). There is public perception that the balance is tilted in favour of the large stakeholders of the industry.

This pronouncement of the Court appears to stifle innovation and the development of new technology. The decision of the Australian High Court strengthens the owner’s rights with respect to ‘interoperability’ or operation with legally purchased accessories by allowing a commercial provider to modify the property. This allows the owner at his request to modify a PlayStation by ‘a commercial provider of modification services so that it can be operated with a legally acquired accessories such as when it was purchased in the US or to view its contents.

’  Thus, it is clear that the proper interpretation of the law is that it relates to content and not interoperability. “The purpose of the anti-circumvention provisions of the Copyright Act such as s 116A in implementing art 11WIPO Copyright Treaty 1996 (WCT) and art 18 WIPO Performers and Phonograms Treaty 1996 (WPPT) is to preserve copyright in the digital environment. However to argue for an interpretation that would seriously encumber the lawful functionality of a chattel is a serious departure from the existing state of legal affairs. ”

In sum, the decision is more in keeping with the principle of interoperability and the  fundamental liberty of a person to be entitled to the full enjoyment of his property in accordance with s 51 (31) Constitution, Article 17 Universal Declaration of Human Rights 1948. It is noteworthy to mention that the decision of the High Court is consistent with the amendments to the Copyright Act 1968 removing the restrictions on parallel importation of computer games. It should be recalled that in 2003 the legislature repealed the restrictions on parallel importation.

‘The regional coding is a technological form of market segmentation. ’  This actually reduces cross market competition in copyright products which the Australian Parliament sought to encourage. It sought to make available a wide choice of software products and printed material based on fair competition by allowing parallel importation of the products. Fair use rights are important to developing countries; however, the European Parliament and Council went beyond this scope and focused on right-holder protection at the expense of fair use.

To some, the strict literal interpretation of the law by the High Court is perceived to cause a widespread proliferation in the market of pirated PlayStation. The solution however, is not in the Court’s manner of interpretation but in crafting an anti-piracy statute that would address the situation clearly. Australian government needs to balance the interests of the right holders and the public in general. The Australian High Court may choose to change its previous pronouncement in a new case when it finds compelling reasons.


A v Boulton (2004) FCAFC 101. Acts Interpretation Act 1901 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. Coleman v  Power (2004) HCA 39. Fitzgerald, A/ and  Fitzgerald, B. Intellectual Property in Principle (2004) Thomson Sydney. Fitzgerald,  Brian. “Intellectual Property Rights in Digital Architecture (including Software): The Question of Digital Diversity? ” [2001] EIPR 121.