Stevens v Kabushiki Kaisha Sony Computer Entertainment

Stevens v Kabushiki Kaisha Sony Computer Entertainment - [2005] HCA 58 - HCA 2005 case summary — Zoe

[15]

Over a long period amendments to copyright law have comprised legislative solutions to problems created by competing economic and social pressures associated with the development of new technologies. The issues in the present appeal indicate that this is very much the case today.
The well‑established categories of original works of authorship have been supplemented by various types of "subject-matter other than works" (including, significantly for this case, cinematograph films), certain "moral rights" have been conferred on individuals, and computer programs have been protected as literary works. This last step has been taken notwithstanding any incongruity in treating computer programs as literary works given "their objective of making hardware function rather than of conveying anything immediately perceivable to humans"[1].
Copyright in both works and other subject-matter remains defined in the Act primarily in terms of the doing (or the authorising of the doing) of any of various acts listed as those comprised in the relevant copyright[2]. Other infringement provisions include those dealing with importation for sale and hire (ss 37, 102) and sale and other dealings (ss 38, 103). It follows from this specificity that not all activities involving the use of copyright material require a licence to escape infringement[3]. (Patent law has operated more broadly, with the traditional terms of the grant of monopoly being to "make, use, exercise and vend" the invention; however, no patent rights were claimed in this litigation.) Merely to read a copy of a book is not to infringe the literary work of which the book is a material reproduction. Further, the making available of means of reproduction which may or may not amount to infringement has been held not necessarily to amount to authorisation of infringement[4].
This litigation turns upon the construction of provisions in the Amendment Act which expand neither the existing categories of copyright works and other subject-matter protected by the Act nor the categories of infringement. Rather, the legislation in question deals with "anti‑spoiler devices" which would allow the side‑stepping of technical barriers to copying.

[19]

Section 3 of the Amendment Act sets out what are stated to be the objects of that statute. These objects are expressed largely by reference to the Internet and online access to copyright material. According to the Revised Explanatory Memorandum to the Senate on the Bill for the Amendment Act ("the Explanatory Memorandum")[8], "the keystone" to the reforms provided by the Bill was the introduction[9] of a "new technology-neutral right to communicate literary, dramatic and musical works to the public". This would "provide copyright owners with greater protection for their material in the new digital environment". However, the substantive provisions of the Amendment Act with which this appeal is concerned deal with a different matter, technical control of "access".
The Amendment Act inserted Div 2A (ss 116A‑116D) in Pt V of the Act. Part V is headed "Remedies and offences". Division 2A is headed "Actions in relation to circumvention devices and electronic rights management information". The Amendment Act also introduced additions to the offence provisions contained in Div 5 (ss 132‑133A) so as to create new offences for contravention of the new Div 2A. The Amendment Act further introduced new definitions into s 10 of the Act. The Act has been further amended on five occasions, the last set of changes being those made with effect from 1 January 2005 by the US Free Trade Ageement Implementation Act 2004 (Cth) ("the 2004 Act"). This litigation is concerned with the statute in what is to be taken as its form at the date of commencement of the Amendment Act, 4 March 2001.
In the Explanatory Memorandum[10] it was said that the provisions of Div 2A were intended to provide "appropriate measures for the enforcement of copyright in the digital environment" and to provide "effective civil remedies against the abuse of technological copyright protection measures". In particular, Div 2A provided copyright owners "with new civil remedies against persons who make, commercially deal in, import, advertise, market or make available online devices, or provide services, used to circumvent technological copyright protection measures".
The Explanatory Memorandum[11] also stated that the changes made were intended to ensure that Australia provided adequate legal protection and effective legal remedies to comply with "the technological measures obligations" in two treaties negotiated in 1996 in the World Intellectual Property Organization ("WIPO"). One of these was the WIPO Copyright Treaty, which became effective on 6 March 2002.
Article 11 of the WIPO Copyright Treaty stated:

[63]

It is important to understand that the reference to the undertaking of acts which, if carried out, would or might infringe, is consistent with the fundamental notion that copyright comprises the exclusive right to do any one or more of "acts" primarily identified in ss 31 and 85‑88 of the Act. The definition of "technological protection measure" proceeds on the footing that, but for the operation of the device or product or component incorporated into a process, there would be no technological or mechanical barrier to "access" the copyright material or to make copies of the work after "access" has been gained. The term "access" as used in the definition is not further explained in the legislation. It may be taken to identify placement of the addressee in a position where, but for the "technological protection measure", the addressee would be in a position to infringe.
This construction of the definition is assisted by a consideration of the "permitted purpose" qualifications to the prohibitions imposed by s 116A(1). First, s 116A(3) provides that, in certain circumstances, the section does not apply in relation to the supply of a circumvention device "to a person for use for a permitted purpose". The term "supply" means selling the circumvention device, letting it for hire, distributing it or making it available online (s 116A(8)). Secondly, s 116A(4) states that the section in certain circumstances does not apply in relation to the making or importing of a circumvention device "for use only for a permitted purpose".
The expression "permitted purpose" in sub‑ss (3) and (4) has the content given it by sub‑s (7). This states that for the purposes of s 116A, a circumvention device is taken to be used for a permitted purpose only if two criteria are met. The first criterion is that the device be "used for the purpose of doing an act comprised in the copyright in a work or other subject-matter" (emphasis added). The second criterion is that the doing of that act otherwise comprised in the copyright is rendered not an infringement by reason of the operation of one or more of the exculpatory provisions then set out[30]. (The listed provisions do not include the general fair-dealing exculpations in ss 40, 41 and 42 of the Act.)
The first criterion in s 116A(7) for reliance upon the permitted purpose provisions which are an answer to what would otherwise be a claim under s 116A thus in terms links the use of a circumvention device to the doing of one or more of the acts enumerated in s 31 of the Act (where these are done in relation to a work) and in ss 85‑88 (where these are done in relation to subject-matter other than a work).
If the construction of the definition for which Sony contends were accepted despite the linkage specified in s 116A(7) between the use of a circumvention device and the central provisions of ss 31 and 85‑88 of the Act, the permitted purpose provisions would risk stultification. The facts of the present case are in point. The use of Mr Stevens' mod chip in order to circumvent the protections provided by (a) the access code on a CD‑ROM in which a PlayStation game is stored and (b) the boot ROM device contained within the PlayStation console cannot be said to be for the "purpose" of reproducing a computer game within the sense of s 31 of the Act. Any such reproduction will already have been made through the ordinary process of "burning" the CD‑ROM. The mod chip is utilised for a different purpose, namely to access the reproduced computer program and thereafter visually to apprehend the result of the exercise of the functions of the program.
There are three other considerations which support Sackville J's construction of the definition.
The first is that, in choosing between a relatively broad and a relatively narrow construction of legislation, it is desirable to take into account its penal character. The present litigation does not arise from the institution of criminal proceedings under the offence provisions now contained particularly in s 132 of the Act. However, a person who makes or sells a circumvention device (s 132(5B)) is liable to imprisonment for not more than five years (s 132(6A)). An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit "practical", construction of Div 2A itself.
The second consideration is that the true construction of the definition of "technological protection measure" must be one which catches devices which prevent infringement. The Sony device does not prevent infringement. Nor do many of the devices falling within the definition advanced by Sony. The Sony device and devices like it prevent access only after any infringement has taken place.
The third consideration is 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 overbroad construction which would extend the copyright monopoly rather than match it. A defect in the construction rejected by Sackville J is that its effect is to extend the copyright monopoly by including within the definition not only technological protection measures which stop the infringement of copyright, but also devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful. One example of that conduct is playing in Australia a program lawfully acquired in the United States. It was common ground in the courts below and in argument in this Court that this act would not of itself have been an infringement[31].

[64]

However, on appeal, the Full Court accepted the construction advanced by Sony. In doing so, the Full Court did not refer to the significance, for construction of the definition of "technological protection measure", of the permitted purpose provisions. The reasoning of the judges in the Full Court varied. Lindgren J, with whom Finkelstein J agreed on this issue[32], found nothing in the statutory text to persuade him strongly to one construction or the other[33]. His Honour was persuaded by a detailed review of the extrinsic materials that a "broader approach" was intended by the Parliament so that the definition of "technological protection measure" embraced an "inhibition" which was indirect and operated before an attempted operation of the circumvention device[34].
However, if one thing appears from a consideration of the Australian and international materials it is that in Australia there was a reluctance to give to copyright owners a form of broad "access control". Indeed, this reluctance is manifest in the inclusion in the definition of "technological protection measure" of the concept of prevention or inhibition of infringement.
This outcome dissatisfied copyright owners. Yet other "stakeholders" with their own interests did not achieve all they may have desired. To those, such as the ACCC, concerned with the operation of restrictive trade practices law, it was significant that the access code for Sony products differed in various markets, so that a PlayStation game purchased in the United States could not be played on an unmodified PlayStation console purchased in Australia[35]. Users of copyright material such as those represented in the amici curiae in this Court were dissatisfied by the exclusion from the permitted purpose provisions of the general provisions protecting fair dealing. Other users were dissatisfied by the failure to include in the permitted purpose provisions the specific protection given by s 47C for back‑up copies of computer programs. All of these considerations suggest no particular support for the "broad" approach to the definition of "technological protection measure".
French J, the other member of the Full Court, emphasised that s 116A operates with respect to the range of acts which may constitute infringement, a range going beyond reproduction. His Honour said of that range of acts[36]:

[66]

However, the provision in s 38 which, subject to the fair dealing and related provisions, renders it an infringement of copyright in a work to sell an article "if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement" may be accommodated within the operation of s 116A without going so far as did French J in construing the definition of "technological protection measure". Taking the example discussed by French J, s 38 itself indicates that what might be called the act of secondary infringement by sale must necessarily follow in a temporal and practical sense from the primary infringement of making the article. The "technological protection measure", consistently with the construction accepted by Sackville J, prevents the act of primary infringement in an immediate sense. It also thereby "inhibits" the act of secondary infringement. One meaning of "inhibit" is to hinder, to check or to place an obstacle or impediment to a path of conduct[37].
French J went on to conclude[38] that the construction proffered by Sony flowed from a consideration of the ordinary and grammatical meaning of the language of s 116A and the definition of "technological protection measure". To accept the contrary construction would be "to cage the ordinary meaning of the words which have been adopted"[39].
Copyright legislation, both in Australia and elsewhere, gives rise to difficult questions of construction. Given the complexity of the characteristics of this form of intangible property, that, perhaps, is inevitable. It may be going too far to say of the definition of "technological protection measure" and of s 116A, as Benjamin Kaplan wrote of the American law even as it stood in 1967[40], that the provisions have a "maddeningly casual prolixity and imprecision". However, in this Court no party advanced the proposition that its task on this appeal was satisfied merely by a consideration of the ordinary meaning of the words in the definition of "technological protection measure".
Rather, Sony contended that, unless the term "inhibit" had the meaning given by the Full Court, it was otiose, adding nothing to "prevent". One meaning of "inhibit" indeed is "prevent". However, it may be taken that "inhibit" is used in the definition of "technological protection measure" in one of its weaker senses, while still necessarily attached to an act of infringement. One such sense has been given above with respect to acts of secondary infringement by dealing in an article created by an act of primary infringement. Further, the operation of a copy control mechanism to impair the quality or limit the quantity of a reproduction may be said to hinder the act of infringement. In that regard, there is a legislative antecedent in s 296 of the 1988 UK Act. This, it will be recalled, spoke of devices or means intended "to impair" the quality of copies made. In the present case, the Sony device does not interfere with the making of a perfect copy of Sony's copyright in its computer program or cinematograph film.

[108]

However, this case did not involve the viewing of a motion picture in the ordinary understanding of that term. The visual images which, consistently with Galaxy, are to be taken to constitute a cinematograph film do not have a set course or sequence of motion. The whole copyright subject-matter cannot be determined merely by a visual appraisal as with a motion picture. The Sony cinematograph films did not comprise visual images and sounds conventionally arranged in a linear sequence. Rather, they were interactive in nature, so that the ability to appreciate directly their content was dependent upon particular activity varying between one player and another.
In this setting, difficult questions for the assessment of substantiality are presented. It is not sufficient here to attempt to assimilate an artificial and contrived demonstration of the playing of the games to the viewing of a segment of a motion picture.
Sony correctly emphasises that the case law concerned with Pt III "works" such as books, where the subject-matter may be appreciated directly, shows that the courts readily enter upon the question of substantiality and that the emphasis has been upon quality, not merely quantity. However, the judgment of Starke J in Blackie & Sons Ltd v Lothian Book Publishing Co Proprietary Ltd[68] is an early illustration in this Court of the general proposition that substantiality is a question of degree which depends upon the circumstances of each particular case.
Where the issue of substantiality arises with respect to a computer program, the importance of evidence is apparent from Data Access Corporation v Powerflex Services Pty Ltd[69]. In the present case, whether what remained in the RAM, as "accessible by the console", had "an appreciable, playable, coherent, viewable and enjoyable part" of what must be taken to be a cinematograph film was, Sony submits, sufficiently established by the demonstration of two games during the hearing of the Full Court appeal and the reaction thereto of Finkelstein J.
It is unnecessary in this appeal to consider what may be the scope in dealing with computer games for evidence bearing upon the alleged "quality" of that which has been taken. Reference has been made above to the interactive nature of the computer games, and to the limited (and technical) purpose of the temporary storage on the RAM of the PlayStation console. Whatever the scope here for consideration of "quality", there was an unsatisfactory carriage by Sony of its evidential burden. There remains then the question of quantity.
What here is critical is Sackville J's acceptance that the evidence suggested that only a very small proportion of the images and sounds comprising the cinematograph film were "embodied" in the PlayStation console's RAM at any given time[70]. In the circumstances as they arose at trial, Sony failed to lay the necessary evidentiary basis for a finding in its favour on substantiality.
That being so, it is unnecessary to consider other submissions put in this Court in answer to Sony's case.
The second ground in the Notice of Contention also fails.

[160]

In determining issues of statutory construction, the text of the relevant statutory provision must be evaluated not only by reference to its literal meaning but also by reference to the purpose and context of the provision. And context is not limited to the text of the rest of the statute. For purposes of statutory construction, context includes the state of the law when the statute was enacted, its known or supposed defects at that time and the history of the relevant branch of the law, including the legislative history of the statute itself. It also includes in appropriate cases "extrinsic materials" such as reports of statutory bodies or commissions and parliamentary speeches - indeed any material that may throw light on the meaning that the enacting legislature intended to give to the provision. This is the process required by the modern approach of the common law to statutory construction[84]. In many jurisdictions, the common law principles have been incorporated, extended or modified by statute. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires a court construing federal legislation to have regard to its purpose. Section 15AB of that Act authorises the use of various forms of extrinsic material to determine the meaning of that legislation. Section 15AB(3), however, has probably modified the common law position. It requires the court, when considering extrinsic material or its weight, to take into account "the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision" and "the need to avoid prolonging legal or other proceedings without compensating advantage."
But sometimes - opponents of the purposive construction would say most of the time - the purpose of the statute in general, and the purpose of its individual sections in particular, are elusive. Similarly, sometimes context gives little - even no - guidance. In the present case, I think that it is impossible to discern the purpose of the relevant provisions, except by reference to the text. And I think that the historical background, the parliamentary history of the legislation and the extrinsic materials - the context - lead to no conclusion other than that the Federal Parliament resolved an important conflict between copyright owners and copyright users by an autochthonous solution.
Much modern legislation regulating an industry reflects a compromise reached between, or forced upon, powerful and competing groups in the industry whose interests are likely to be enhanced or impaired by the legislation. In such cases, what emerges from the legislative process is frequently not a law motivated solely by the public interest. It reflects wholly or partly a 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 purpose 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 legislation invites error.
There is a good deal of evidence that supports the view that the legislative provisions with which this litigation is concerned are the product of a compromise agreed to, or forced upon, interest groups in the industry affected by the legislation. As the judgments of Sackville J and Lindgren J show, for many years Australian and overseas copyright owners and copyright users had been active in seeking to expand or limit the scope of legislation permitting copyright owners to use a "technological protection measure". A Parliamentary Committee set up to investigate that issue received about 100 submissions[85]. The Parliament did not adopt the Committee's recommendation concerning the form that the legislation might take. And the extrinsic materials to which we were referred did not disclose why the legislation took the precise form that it did. Moreover, the legislation that Parliament enacted did not give either the copyright owners or copyright users exactly what they wanted. As one writer has said[86]:

[166]

Mr Stevens contends that Sackville J correctly defined the term "inhibit" in the definition of "technological protection measure". That interpretation classifies a device as "designed ... to prevent or inhibit" copyright infringement if "but for the operation of the device or product, there would be no technological or perhaps mechanical barrier to a person ... putting himself or herself in a position to infringe copyright in the work."[90] In contrast, Sony contends that "inhibit" ought to be given the meaning ascribed to it by the Full Court of the Federal Court. On that meaning, a device is "designed ... to ... inhibit the infringement of copyright" if the device is designed to "deter" or "discourage" the infringement of copyright. On the Full Court's reading, a technological protection measure is a device that, in the ordinary course of its operation, is designed to make copyright infringement futile. That is, a device "inhibits" the infringement of copyright if the prospect of restricted access to the work or a controlled capacity to copy the work dissolves every reason to do an act that infringes copyright in the work. If the Boot ROM fails to locate an access code, the copy of the work (ie the game software) is unable to be loaded onto the console, and so the game is "unplayable". Sony points out that an "unplayable" copy of a PlayStation game has no market value. Consequently, the operation of the Boot ROM and access code causes PlayStation users to have no reason to do any act of copyright infringement - eg copying, selling or importing an infringing copy of a game - that a user might otherwise have reason to do.
The difference between the interpretations of "inhibit" in the judgments of Sackville J and the Full Court of the Federal Court inheres in the disparate descriptive tasks that each interpretation requires the term "designed" to perform. Sackville J used the term "designed" to describe the action that the device was intended to execute in the course of its operation. To identify this action, it was necessary to ask: "what is the device meant to do?" His Honour answered this question in terms of the device's construction of a "technological or perhaps mechanical barrier" that operated "physically" to prevent or inhibit acts of dealing with the work[91].
The Full Court of the Federal Court saw the content of the term "designed" differently. It thought that it refers to the effect that the device's action is intended to cause. This effect is discerned from the question: "why is the device meant to do that?" On this view, as Lindgren J noted, this "purpose" may be "indirect[ly]" achieved by the device's operation and, consequently, fall within the s10(1) definition[92].
However, the Full Court's interpretation of "inhibit" and description of the device's "design" gives rise to three problems. First, the interpretation is not consistent with the language of the s 10(1) definition of "technological protection measure". That the device must be "designed, in the ordinary course of its operation, to ... inhibit" indicates that the definition is concerned with the actions that the device is intended to execute in the course of its operation. The chain of causation, by which the device utilises one of the two processes specified in pars (a) and (b) of the definition to "inhibit" acts of copyright infringement, must be fixed by the completion of the device's operation. The effects that the device's action, in enacting one of the two processes, is intended to have on a user subsequent to the completion of the course of its operation are external to this chain of causation, and thus not attributable to the device.
Second, the grammatical structure of the phrase "designed ... to prevent or inhibit" - where the term "designed" operates in the same way in respect of both "prevent" and "inhibit" - indicates that the term "designed" must perform the same descriptive task when attached to "inhibit" as it does when attached to "prevent". A device is "designed ... to prevent" copyright infringement when it is the operation of the device (which must incorporate one of the two processes specified in the definition) that makes it impossible to do an act of copyright infringement. In this context, the term "designed" is used to describe the device's function, and not the purpose that the execution of the function was intended to fulfil. Thus, for grammatical consistency, the phrase "designed ... to ... inhibit" must also refer to the device's intended operation. It cannot extend to the intended effect of the device's operation (ie the user's understanding and contemplation of the device's operation that causes there to be no reason to do an act of copyright infringement).
Third, Sony's interpretation is not consistent with the language of the s 10(1) definition of "circumvention device". A "circumvention device" is defined by reference to the device's "purpose or use". If the legislature intended the s 10(1) definition of "technological protection measure" to extend to a device whose ultimate purpose, even if not its immediate effect, is to "inhibit" copyright infringement, then the plainer language of the "circumvention device" definition would have been used, so as to include devices having a "purpose or use to prevent or inhibit" copyright infringement.
In my opinion, for the purpose of s 10(1), a device is a device that is "designed ... to ... inhibit" copyright if the device functions, "in the ordinary course of its operation", so as to make the doing of an act of copyright infringement - not impossible - but more difficult than it would be if the device did not operate.
This interpretation does not render the term "inhibit" redundant because it applies to at least two categories of devices that do not have an absolute preventative effect on copyright infringement. Thus, there are protective devices that regulate a user's access, not to the work itself, but to the appliance through which works are accessed. For example, "device binding" is a measure through which the decryption key of a work is linked to the "unique identifier" of the computer of a person who is licensed to download and copy a work[93]. The work may only be downloaded and saved (and thus, copied) onto a computer with this identifier. The fact that access to the work is available solely by use of a decryption key that is linked to the computer's identifier does not make it impossible for another user of the same computer - who has not been licensed to reproduce the material - to download and save the work. Nonetheless, in disenabling the access of all other computers to the work, "device binding" mechanisms function to make it more difficult for users - who are not licensed to download the work - to have access to an appliance that will enable the copying and infringement of copyright in the work. In this way, "device binding" inhibits, but does not prevent, copyright infringement.
Other devices are designed to make it impossible to do an act of copyright infringement by a particular method or methods, but are ineffective to prevent the doing of the same infringing act by other, more complex, methods. Online access controls are an example. They are measures that decrypt a work that is delivered to the computer through the Internet - "streamed" - when it is delivered to the computer. The work is then immediately re-encrypted, so as to enable only a small portion of the work to be decrypted at any given time. The result is that the work cannot be digitally copied onto the computer to which it is being delivered[94]. However, the re‑encryption of the work, after it has been delivered and played, does not restrain the user from reproducing the work on other recording devices while the work is being played. In making it impossible to do an act of copyright infringement (ie reproduction) using one method, but not making it impossible to do the same act of copyright infringement using a more tedious method, online access controls make it more difficult to reproduce the work.
Acts of copyright infringement include not only acts that are comprised in the copyright but also acts of dealing with infringing copies of copyrighted works (eg by selling or importing). As French J observed[95], it may be that the function of a protective device will rarely make it impossible, or even more difficult, to engage in the latter category of acts. But this is not an illogical result that ought to compel an alternate reading of the statutory definition. The Parliament did not contemplate that technological protection measures would "prevent or inhibit" acts of dealing with infringing copies. This is evident from the limited scope of s 116A(7) of the Act. Section 116A(7) defines "a permitted purpose", for which a circumvention device may be used in accordance with s 116A(3), as "the purpose of doing an act comprised in the copyright in a work". The "permitted purposes" for using a circumvention device do not extend to acts of dealing - however fairly - with copies of works. Thus, a circumvention device may be needed to circumvent a technological protection measure in order to sell, trade or import the protected work for one of the purposes listed in Pt III, Div 3 of the Act. On this hypothesis, the fair dealer who installs the device does not infringe copyright by selling, trading or importing the work, but nonetheless would contravene s 116A of the Act by making a circumvention device for a purpose that is not permitted. This would be an anomaly. It confirms the view that the s 10(1) definition of "technological protection measure" ought to be read according to its ordinary meaning and not artificially stretched to include within its scope acts of copyright infringement that are not comprised in the copyright.
On the interpretation of the s 10(1) definition of "technological protection measure" that I favour, Sony's device of the Boot ROM chip and the access code or either of them does not constitute a "technological protection measure" by virtue of the device's deterrent effect on the copying of computer games. That is because the console's inability to load the software from an infringing copy does not make it impossible or more physically difficult to make an infringing copy.

[183]

The appeal must be allowed.
KIRBY J. This appeal raises important questions of copyright law as that law operates in Australia in relation to digital technology. The appeal comes from a judgment of the Full Court of the Federal Court of Australia[99]. That judgment, although unanimous as to the outcome, reflects reasons of the participating judges[100] that differ in important respects - both as to the approach that should be taken to the contested statutory language[101] and as to the merits of two additional contentions urged by the Sony company interests ("Sony") in support of their case[102].
Despite these divergences there was unanimity in the Full Court about the meaning to be given, in s 116A of the Copyright Act 1968 (Cth) ("the Copyright Act")[103], to the expression "technological protection measure" ("TPM"). Specifically, the Full Court agreed that the measures taken by Sony in the present case fell within the phrase TPM as so defined[104].
This conclusion was sufficient, with other uncontested determinations made at trial[105], to result in the reversal by the Full Court of the judgment entered by the primary judge (Sackville J). He had decided that the claim by Sony under s 116A of the Copyright Act against Mr Eddy Stevens (the appellant) had failed[106]. Instead, the Full Court concluded that, on the basis of its view as to the meaning of TPM (as well as the by then uncontested basis of breaches of the Trade Marks Act 1995 (Cth) ("the Trade Marks Act"), s 120(1)), Sony was entitled to succeed[107].
Against the disturbance by the Full Court of the orders of the primary judge, Mr Stevens appealed to this Court. He sought to restore the orders at trial concerning the Copyright Act and to resist the defensive reliance by Sony upon the two additional copyright arguments on which the majority of the Full Court preferred the view accepted by the primary judge.
As to the major point of difference between the primary judge and the Full Court - the meaning of TPM as defined in s 10(1) of the Copyright Act - Lindgren J in the Full Court (correctly in my view) described the issue of construction involved as "finely balanced". According to Lindgren J, no textual argument offered strong support for one construction over the other[108]. The factual findings and conclusions of the primary judge were not challenged in this Court[109]. In this appeal, therefore, this Court has before it three points of statutory construction which, like so many others that reach it, involve disputed arguments yielding contestable outcomes.
Conformably with authority[110], this Court must identify, and explain, the interpretation that it prefers. It must do so by reference to established sources and tools: by close examination of the statutory text, its language, context and structure; by identification of the purposes suggested by that text[111]; and by the use of the statutory history, including available background materials that cast light on the meaning of the text[112]. Yet, in construing the Copyright Act there are peculiar difficulties that, in my view, may be traced, ultimately, to the constitutional head of power[113] by which the Federal Parliament enjoys the legislative authority to make laws with respect to "copyrights, patents of inventions and designs, and trade marks". That power is granted in a constitutional and legal setting in which competing legal interests must also be upheld by the law, including, generally, free expression and the normal interest of property owners in the undisturbed enjoyment of their property[114].
"Copyright", it has been rightly declared, "is one of the great balancing acts of the law. Many balls are in play and many interests are in conflict."[115] To the traditional problems of resolving such conflicts must be added, in the present age, the difficulties of applying the conventional model of copyright law to subject matters for which that model is not wholly appropriate; adjusting it to the "implications of the online environment"; and adapting it to international pressures that may reflect economic and legal interests that do not fit comfortably into the local constitutional and legal environment. "The dance proceeds", as Professor Ricketson has observed[116]; but the multiplicity of participants and interests now involved in its rhythms inevitably affect the contemporary judicial task of resolving contested questions of interpretation of the Copyright Act.
Where, as both sides effectively conceded in this appeal, alternative views are available as to the meaning of the disputed provisions of the Copyright Act, the resolution of the task of interpretation is bound to lie (even more than in most cases) in considerations additional to those that can be extracted directly from the statutory text. Although I agree in the conclusion stated in the reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ ("the joint reasons") and of McHugh J as to the issues in, and outcome of, this appeal, it is to clarify and elaborate the range of considerations that affect my reasoning that I write separately.

[184]

The facts: The essential facts are stated in brief terms in the joint reasons[117]. The course of the relevant pleadings[118]; a description of the way the circumvention device claim developed[119]; and the facts concerning the Sony companies, their PlayStation system and Mr Stevens' activities[120] are set out in the reasons of the primary judge, in terms that can be accessed by those who desire more detail.
The appellant accepted that the PlayStation CD ROMs, manufactured and supplied by Sony, incorporated a number of encrypted data (referred to as the "access code") that could not be reproduced by conventional CD recording devices. The access code consisted essentially of a string of characters, stored in a portion of the CD ROM inaccessible to such recording devices. Before the game stored on the CD ROM could be played, this code had to be read by the Boot ROM, located within the Sony PlayStation console. In effect, the Boot ROM first determines whether there is a relevant access code on the CD ROM and, if there is, what the access code provides. If that code is found by the Boot ROM and can be read, the game can be played. If not, the CD ROM cannot be loaded and the game cannot then be played[121].
A copy of a PlayStation CD ROM, made without the licence of Sony (as when "burnt" using a conventional CD "burner"), would not ordinarily be capable of being played on an unmodified PlayStation console. The appellant did not challenge the finding of the primary judge that the Boot ROM was intended by Sony to deter, or discourage, the making, importation and distribution of unauthorised ("counterfeit") copies of the Sony PlayStation CD ROMs[122]. Nor did the appellant contest the related finding of the primary judge that he was aware that the modifications made by him to PlayStation consoles were intended to enable such copies to be played.
Although Sony argued that it was legally irrelevant, the evidence at trial proved that the PlayStation consoles, as manufactured and supplied by Sony, were designed to allow the operation of PlayStation games only as distributed in particular regions of the world. Thus, the Boot ROM in a PlayStation console distributed and sold in the United States of America is designed to recognise only the access code on PlayStation CD ROMs sold and distributed in that region. Likewise PlayStation CD ROMs sold and distributed in Japan have a different access code, recognised only by the Boot ROM contained in a PlayStation console distributed and sold in that region. A third region, with an access code different again, is constituted by other areas of the world which include Australia, New Zealand and Europe.
From the foregoing it follows that a PlayStation CD ROM sold and distributed in one global region cannot be played on an unmodified PlayStation console sold and distributed in another region. Thus, the purchaser and owner of a PlayStation CD ROM, lawfully acquired, say, in Japan or the United States and brought to Australia, could not play that CD ROM on an unmodified console lawfully acquired, say, in Australia or Europe[123]. By their line the Popes of old divided the world into two spheres of influence. Sony, it appears, has divided the world (for the moment) into at least three spheres or markets. By the combined operation of the CD ROM access code and the Boot ROM in the PlayStation consoles, Sony sought to impose restrictions on the ordinary rights of owners, respectively of the CD ROMS and consoles, beyond those relevant to any copyright infringement as such. In effect, and apparently intentionally, those restrictions reduce global market competition. They inhibit rights ordinarily acquired by Australian owners of chattels to use and adapt the same, once acquired, to their advantage and for their use as they see fit.
Before this Court, Sony ultimately settled for a contention that it was the combination of the access code in the PlayStation CD ROMs and the technological capacity to recognise and respond to such codes in the Boot ROM chip in the PlayStation console that amounted to a TPM within s 10(1) of the Copyright Act. Earlier attempts to identify the "protective device" in each of these items separately were abandoned so as to embrace the combined view. On the face of things, the combined operation of the foregoing technology constitutes a "measure" within the Copyright Act that answers to a description of a "device or product, or a component incorporated into a process" which was designed (without some other intervening device, product or component) to prevent access to the use of the game digitally encoded in Sony's CD ROM and capable of being played on its PlayStation console. In my opinion, it is necessary to spell out these features of Sony's "device", "product" and "component" (together "the device") in order to appreciate fully the force of Sony's argument that the device fell within the statutory definition of TPM.
It was in response to this added digital component that the appellant offered for sale, sold and installed where necessary, both CD ROMs, copied without Sony's authority using conventional CD recording or copying devices (such as a conventional CD "burner"), and "mod chips". The latter are programmed computer chips which, when installed in the PlayStation console, override its internal operating system so as to permit the console to load the computer program contained on the copy CD ROMs, although they do not contain the relevant access code. A PlayStation console, modified by the addition in it of a "mod chip", is commonly referred to as a "chipped console"[124].
In a world in which owners of copyright in defined works and subject matter involving digital technology have sought to protect their copyright interest by an encoded technological barrier or impediment; where international treaties (to which Australia is a party) have agreed on the adoption of specified national protections for the effectiveness of such measures; where such measures have been thoroughly debated in Australia by experts, parliamentary bodies and eventually the Parliament itself resulting in the Digital Agenda Act, it seems, on the face of things, that a broad view of the legislation (including of the definition of TPM in s 10(1) of the Copyright Act) favours Sony in this appeal. A broad view could sustain the conclusion reached by the Full Court and negative the outcome reached by the primary judge. What more (Sony might ask itself rhetorically) could it have done using a technological "device" to protect its interests in the copyright in its works and to keep unauthorised intruders, such as the appellant and his customers, from the unlicensed use of Sony's PlayStation products? Was not this precisely what international treaties and national law were designed to uphold? Do these practical considerations not support Sony's contention that its device is a TPM?
The first statutory issue in this appeal (and the other issues presented by Sony's notice of contention) are not, however, to be decided at the foregoing level of generality. Legal analysis is required. Such analysis must begin with the language, context and apparent purposes of the Copyright Act. The question is not whether Sony, or anyone else, considered that they had implemented a "device" to protect a popular work with valuable copyright features from the activities of "pirates" like the appellant. Self-evidently, that was Sony's aim. The primary question in this appeal is whether, in doing so, Sony is entitled to invoke the Copyright Act, according to its terms, to gain legal remedies against the appellant. That is a legal, not a technological, question. It must be answered using legal tools.
The legislation: The provisions of the Copyright Act that determine the outcome of this appeal are contained, or described, in the joint reasons[125]. I will not repeat the language of the Act.
Crucial to the point that differentiated the opinion of the primary judge from the Full Court was the definition of "technological protection measure" in s 10(1) of the Copyright Act. That phrase, which is central to, and incorporated in, the definition of "circumvention device" (and is essential to establishing breach of s 116A(1) of the Act), contains the requirement that the TPM must be "a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work" by specified means.
The stated introductory words (the chapeau) to the statutory definition are the legal preconditions to establishing an unlawful measure. Unless they are proved by the evidence to have been fulfilled, all that remains is an intended "circumvention device" and an intended TPM. They may yet have some practical effectiveness to protect the given copyright interests but, unless the conditions are fulfilled, they do not attract the legal protections provided by the Copyright Act that Sony invoked against the appellant in this case.
That the measures in this case did not attract such legal protections was the conclusion reached by the primary judge. However, it was the one point upon which all judges of the Full Court expressed agreement, in reversing the primary judge's orders and upholding Sony's claim. Sony sought to maintain this conclusion which became the focus of most of the argument in this appeal. The remaining issues, raised by Sony's notice of contention, were deployed defensively, in case the primary judge's conclusion on this point was restored and the Full Court reversed.

[192]

In its reasoning the Full Court preferred a broader approach. One judge (French J) considered that such an approach was required by the plain language of the Copyright Act, read in its context[129]. The other judges (Lindgren J, with whom Finkelstein J concurred on this point)[130] considered that there was ambiguity in the text and that reference to the background material sustained the broader approach urged by Sony. In particular, Lindgren and Finkelstein JJ considered that the legislative history, culminating in the Digital Agenda Act, was determinative on the point[131].
Support for the Full Court's approach: There is no point pretending that one interpretation is clearly correct and the other clearly wrong. As with so many similar disputes over statutory interpretation reaching this Court, each approach is arguable[132].
The primary judge drew the inference that the Digital Agenda Act contemplated a TPM that itself would prevent or inhibit the infringement of copyright in a work from happening at all. There were other ways of wording the legislation. The statutory texts adopted in other countries indicated as much[133]. Yet the Australian legislation adopted a distinct approach. It was one designed to prevent or inhibit infringement of copyright as such, and access to copyrighted works and subject matters as incidental to that purpose[134].
Sony defended the interpretation of TPM favoured by the Full Court by reference to a number of considerations. Thus, Lindgren J disagreed with the primary judge's view, describing it as involving an "unwarranted preconception that the 'access' to which para (a) of the definition of [TPM] refers is limited to access for the purpose of subsequent infringement"[135]. It was sufficient, upon the Full Court's view, that the "access" denied should be retrospective, as where (in default of the technological devices introduced by Sony or the use of a circumvention device contrary to s 116A of the Copyright Act) the attempted use of the CD ROMs in such consoles would fail to access the game, so denying their users the benefit of any earlier infringement of Sony's copyright.
In support of this broader interpretation of the Copyright Act, Sony relied on textual indications, as well as the extrinsic materials mentioned by Lindgren J in his reasons in the Full Court[136].
As to the textual indications, Sony placed much emphasis (as did the judges in the Full Court) upon the use, in the definition of TPM, of the verb "inhibit" in addition to the word "prevent" in the context of copyright infringement of the work in question. Even if, upon one view, a technological measure to prevent infringement of copyright might be treated as having failed where an unauthorised copy of a CD ROM had been made (without the access code) and inserted in a Sony PlayStation console, inhibition (so it was said) included the interaction between the technological device and social facts or human psychology.
Thus, the effect of the device, in the "ordinary course of its operation", is that the unauthorised copy of the CD ROM (without the access code) would be rejected. Such rejection would deny the would-be player access on the PlayStation console to the game. The result would thus be frustration, disappointment and the conclusion that the "pirate" CD ROM was useless. The intended infringement of the copyright would thereby be defeated. By defeating it, Sony's device might not have prevented the infringement of copyright (if any), such as had occurred in the creation of the unreadable copy of the work or subject matter. However, it would certainly inhibit the infringement of copyright. It would do so by denying a reward to the copier, namely access to the copyrighted work or subject matter[137]. As an inhibition, Sony's device, so its argument ran, qualified as a TPM within s 10(1) of the Copyright Act.
As to the extrinsic materials, Sony supported the analysis of the emergence of the Digital Agenda Act explained in the reasons of Lindgren J (with whom Finkelstein J agreed). Much emphasis was placed on the rejection in the definition of TPM of the recommendation of the Australian Parliamentary Committee to the effect that the definition should not have two limbs, one of which allowed copyright owners to control access to their work[138]. From this legislative history, Sony drew the conclusion that the definition of TPM in the Act was intended to include protective devices that controlled access alone.
Each of these interpretations is open on the statutory language and differing views as to the legislative process leading to the enactment of the Digital Agenda Act. Both sides invoked extrinsic materials and specifically those relevant to the legislative history. The duty of a court is to give effect to the purpose of the Parliament as expressed in the language of its legislation. This is a constitutional duty expressly imposed[139] as well as a duty implied in the concept of the rule of law that is inherent in the Australian Constitution[140]. No court may frustrate the command of the Parliament, as for example because a judge disagrees with the legislative policy; considers that it is too protective of foreign intellectual property interests; or concludes that it needs reconsideration, or that it unduly extends the legal protections of copyright law in a way that disturbs balances of interests hitherto observed by such law. If, after analysis, the meaning of the legislation is established and is sufficiently clear, and if it is constitutionally valid, a court must uphold its meaning and give effect to its command.
Policy and a broad approach: In addition to the arguments deployed in the Full Court, there are a number of general considerations that lend support to the conclusion expressed by the Full Court. In my view, these include that:

[197]

Accepting an ambiguity: With respect to the contrary opinion of French J, I prefer the view adopted by the other judges in the Federal Court that the definition of TPM in s 10(1) of the Copyright Act is ambiguous. This conclusion requires this Court to choose between the available interpretations. That obligation does not confer an unfettered power. It necessitates an interpretative analysis justifying to the relevant interpretative community the conclusion that is reached. That community commonly includes the parties, interested members of the legal profession, the competing interests (including relevant groups and organisations such as the amici curiae) as well as interested members of the public. Because the legislative words do not, alone, yield a convincing resolution to the problem of interpretation, it is necessary to refer to contextual and extrinsic circumstances that bring the decision-maker to the ultimate resolution.
Relevant textual indications: The task of statutory interpretation is, at least in part, one that involves individual impressions. As many cases demonstrate, different judicial readers, trained in the same tradition, examine the same language yet come to different conclusions. The object of legal analysis is to ensure, so far as possible, that each decision-maker takes into account the same considerations before reaching a conclusion, and that such legal analysis is as candid as exposition of judicial reasons permits, concerning the chief factors that have led to one conclusion rather than another.
Take the present case. The main textual considerations that support the conclusion of the primary judge are as follows. The drafter of the Australian provision has, apparently deliberately, chosen a distinctive way of expressing the prohibition in s 116A of the Copyright Act. This is by using references to technological expressions ("technological protection measure" and "circumvention device") that are defined in s 10(1) of the Copyright Act. Moreover, whilst a particular "device" might, in general terms, be regarded as a "circumvention device" - just as the primary judge was willing to accept the appellant's modifications were in the present case - they only have the relevant statutory significance in so far as they circumvent, or facilitate the circumvention of, a TPM. The drafting is thus tight. Apparently, it is deliberately expressed in terms of defined measures.
Those measures, in turn, are not described in general terms as measures preventing or inhibiting access to a work or to subject matter entitled to copyright protection under the Act. Instead, two elements are stated as prerequisites to the existence of a TPM, as defined. These are that the TPM must be a "device or product, or a component incorporated into a process" - implying (as the word "technological" in the expression TPM itself suggests) a measure having an ordinary operation of the designated type. Moreover, what is to be prevented or inhibited is not, as such, "access" to a work or subject matter that is entitled to copyright. It is the infringement of copyright in that work that is to be prevented or inhibited; and inferentially, the infringement is to be prevented or inhibited by such technological means.
The Parliament having chosen such an elaborate and specific definition for the key provision of the legislative scheme, a court should pause before stretching the highly specific language in order to overcome a supposed practical problem. To do so would not be to construe the text, but to substitute a new and broader text for the one chosen by the Parliament after extensive consultation, investigation and debate. Particularly in the context of the object stated in s 3 of the Digital Agenda Act - very much tied into the "new online technologies" and the perceived advantages of the Internet[148] - the foregoing "technological" interpretation of the definition of TPM causes no surprise. It is one that is grounded in the language of s 10(1) of the Copyright Act. It is strengthened by the postulate of the Digital Agenda Act that technology itself could be invoked to provide protections against breaches of copyright. The difficulty with Sony's interpretation is that it challenges the very assumption upon which the definition of TPM in terms of "devices" would operate to have the designated effect, namely the prevention or inhibition of the infringement of copyright.
The inclusion of the word "inhibit", in the context of a focus upon a self-operating device, does not alter this conclusion. A strict interpretation does not deprive the term "inhibit" in s 10(1) of meaningful content. That word still has work to do in a number of contexts that are not covered by the word "prevent". For example, it will apply to a protective device which regulates access to the mechanism that provides access to a work, rather than access to the work itself. Such a device will not prevent infringement in all cases. This is because a device limiting access to a work does not prevent infringing copies being made once access is legitimately achieved. However, by restricting access to the work in the first place, such a device makes infringement more difficult. Significantly, such an inhibition operates prospectively; the infringement against which the device is designed to protect occurs subsequent to the operation of the protection device in its ordinary course. The description of "device binding" in the reasons of McHugh J[149] provides a good example of this category of technological device, which is designed to inhibit, but not prevent, infringement within the meaning of s 10(1).
Secondly, a device that prevents infringement by a particular method, but which is ineffective to protect against infringement by another more complex or involved method, is a device that will not be covered by the term "prevent" in s 10(1)[150]. This is because infringement will still be possible, through the more complex method, notwithstanding the operation of the device. However, by making infringement more difficult (say by preventing a common or easily available method of infringement), such a device can be seen to inhibit infringement in the technical sense required by the definition. This further demonstrates the utility of the inclusion of the term "inhibit" in s 10(1), consistent with the strict interpretation that I favour.
Had it been the purpose of the Parliament, by the enactment of the Digital Agenda Act, to create a right to control access generally, it had the opportunity to say so. It even had overseas precedents upon which it could draw. The Australian Government was pressed to provide protection for all devices that "control access". This is evident in the definition of TPM suggested to the Australian Parliamentary Committee by the International Intellectual Property Alliance[151]. Such a definition would effectively have mirrored the provision adopted by the Congress of the United States in the Digital Millennium Copyright Act of 1998[152]. By the time the Australian definition of TPM was enacted, the United States Act had been in force for two years. Nevertheless, the propounded definition of wider ambit was not accepted. Instead, in Australia, the Parliament chose to focus its definition upon protection from infringement of copyright as such.
The preference inherent in the Australian Act has been viewed as one which "favours the use of protected works"[153], by limiting the operation of TPMs in terms of control over infringement of copyright rather than a potentially broader control over access. When the competing legislation of other jurisdictions, giving effect to the relevant international treaties, is contrasted, it appears clear that the distinctive statutory formula adopted in Australia was a deliberate one. It was less protective of copyright than the legal regimes adopted in the United States, the United Kingdom and elsewhere[154]. In the face of such a formula, accepted after a long inquiry and contrary submissions made by affected interest groups, the safer course for this Court, in giving meaning to the definition of TPM in s 10(1) of the Copyright Act, is to stick closely to the more restricted language of the Act. This approach has a textual foundation. It lies in the meaning to be attributed to the words "designed" and "inhibit" appearing in the definition of TPM in the Copyright Act[155].
If the definition of TPM were to be read expansively, so as to include devices designed to prevent access to material, with no inherent or necessary link to the prevention or inhibition of infringement of copyright, this would expand the ambit of the definition beyond that naturally indicated by the text of s 10(1) of the Copyright Act. It could interfere with the fair dealing provisions in Div 3 of Pt III of the Copyright Act and thereby alter the balance struck by the law in this country.
As the amici submitted to this Court, Sony's interpretation of s 116A would enable rights holders effectively to opt out of the fair dealing scheme of the Act. This would have the potential consequence of restricting access to a broad range of material and of impeding lawful dealings as permitted by Div 3 of Pt III of the Copyright Act. The inevitable result would be the substitution of contractual obligations inter partes for the provisions contained in the Copyright Act - the relevant public law. Potentially, this could have serious consequences for the operation of the fair dealing provisions of that Act. This is not an interpretation that should be readily accepted. Especially so where the language of the definition of TPM presents the perfectly acceptable, apparently intentional, and more confined construction expounded by the primary judge[156].
Avoiding over-wide operation: There is an additional reason for preferring the more confined interpretation of the definition of TPM in the Copyright Act. This is because the wider view urged by Sony would have the result of affording Sony, and other rights holders in its position, a de facto control over access to copyrighted works or materials that would permit the achievement of economic ends additional to, but different from, those ordinarily protected by copyright law. If the present case is taken as an illustration, Sony's interpretation would permit the effective enforcement, through a technological measure, of the division of global markets designated by Sony. It would have the effect of imposing, at least potentially, differential price structures in those separate markets. In short, it would give Sony broader powers over pricing of its products in its self-designated markets than the Copyright Act in Australia would ordinarily allow[157].
It may be accepted, as the primary judge concluded, that "[t]he fact that a device can be said to be designed to achieve two or more objectives, only one of which is to prevent or inhibit the infringement of copyright, does not … of itself … take the device outside the definition of" a TPM[158]. It may also be accepted that Sony's device was not designed primarily to achieve a particular non-copyright purpose[159]. Nevertheless, where a choice of interpretation has to be made, the existence of the additional non-copyright purpose of enforcing global market price differentiation does constitute a reason to prefer an outcome that is consistent with the balances ordinarily inherent in copyright legislation over a result that is not.
Upholding fundamental rights: A further reason, not wholly unconnected with the last, is relevant to the choice to be made in selecting between the competing interpretations of the definition of TPM. The interpretation favoured by the primary judge confines that definition and hence the operation of s 116A of the Copyright Act and the civil remedies which that section provides. The Full Court's broader view gives an undifferentiated operation to the provisions of s 116A that 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 limited 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.
Take, for example, the case earlier mentioned of a purchaser of a Sony CD ROM in Japan or the United States who found, on arrival in Australia, that he or she could not play the game on a Sony PlayStation console purchased in Australia. In the case postulated, there is no obvious copyright reason why the purchaser should not be entitled to copy the CD ROM and modify the console in such a way as to enjoy his or her lawfully acquired property without inhibition. Yet, on Sony's theory of the definition of TPM in s 10(1) of the Copyright Act, it is able to enforce its division of global markets by a device ostensibly limited to the protection of Sony against the infringement of its copyright.
Ordinary principles of statutory construction, observed by this Court since its earliest days, have construed legislation, where there is doubt, to protect the fundamental rights of the individual[160]. The right of the individual to enjoy lawfully acquired private property (a CD ROM game or a PlayStation console purchased in another region of the world or possibly to make a backup copy of the CD ROM) would ordinarily be a right inherent in Australian law upon the acquisition of such a chattel. This is a further reason why s 116A of the Copyright Act and the definition of TPM in s 10(1) of that Act should be read strictly. Doing so avoids an interpretation that would deprive the property owner of an incident of that person's ordinary legal rights.
The provisions of the Australian Constitution affording the power to make laws with respect to copyright[161] operate in a constitutional and legal setting[162] that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are[163].
In Wilson v Anderson[164] I said, in words to which I adhere, that fundamental rights will persist in the face of legislation said to be inconsistent with them "'unless there be a clear and plain intention' to extinguish such rights". These remarks were made in the context of a suggested extinguishment of rights ordinary to the ownership and possession of property. I added[165]:

[199]

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. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.
In the present case, it is legitimate to say that, had it been the purpose of the Parliament to push the provisions of the Copyright Act attaching offences and sanctions to circumvention of TPMs in a way that deprived chattel owners of ordinary rights of ownership, such a provision would have been spelt out in unmistakable terms. In the definition of TPM in s 10(1) of the Copyright Act, such unmistakable language does not appear. This fact affords a further reason for preferring the more restricted interpretation that is compatible with the ordinary incidents of ownership of lawfully acquired chattels.
The fact that, in the present case, this approach affords protection, incidentally, to the proved activities of a person such as the appellant, is simply the most recent illustration of the way in which copyright law sometimes operates. Sony will itself be aware of this incidental operation of the law. In Sony Corp of America v Universal City Studios, Inc[166], the Supreme Court of the United States held that Sony, as the distributor and seller of the Betamax video cassette recorder, was not liable if users of that recorder infringed the copyright of others in television broadcasts. In that case, it was claimed that Sony, as the manufacturer of the recorder, was liable for the infringement that occurred when purchasers taped copyright programmes. It was argued that Sony had supplied the means used to infringe the copyright of others and had constructive knowledge that such infringement would occur.
Because a legitimate basis for the taping of television programmes for viewing at more convenient times ("time-shifting") was found by the Supreme Court to be fair and not an infringing use, the claim of infringement against Sony was rejected[167]. This interpretation of the United States law reflected the bias inherent in the legal systems of the common law in favour of protecting the rights of copyright owners in a context that also protects other legal interests belonging to other persons. As Breyer J has recently pointed out, in a concurring opinion[168], the rule in the Sony Betamax decision was strongly protective of new technology. It foreshadowed the dramatic evolution of the product's market. It respected the limitations facing judges where matters of complex and novel technology are concerned. And it avoided the introduction of a "chill of technological development"[169] in the name of responding to alleged copyright infringement. Many of these considerations apply in the present case to suggest a preference for a stricter, rather than a broader, meaning of the expression TPM in s 10(1) of the Copyright Act.
The legislative option: An additional consideration for avoiding reversal of the Sony rule in the United States Supreme Court was mentioned by Breyer J in the recent opinion to which I have referred. This was, as the decision in Sony in that Court had earlier recognised, that "the legislative option remains available. Courts are less well suited than Congress to the task of 'accommodat[ing] fully the varied permutations of competing interests that are inevitably implicated by such new technology.'"[170]
In the Australian context, the inevitability of further legislation on the protection of technology with TPMs was made clear by reference to the provisions of, and some legislation already enacted for, the Australia-United States Free Trade Agreement[171]. Provisions in that Agreement, and likely future legislation, impinge upon the subject matters of this appeal. Almost certainly they will require the attention of the Australian Parliament in the foreseeable future[172].
In these circumstances, it is preferable for this Court to say with some strictness what s 10(1) of the Copyright Act means in its definition of TPM, understood according to the words enacted by the Parliament. If it should transpire that this is different from the purpose that the Parliament was seeking to attain (or if it should appear that later events now make a different balance appropriate) it will be open to the Parliament, subject to the Constitution, to enact provisions clarifying its purpose for the future. Moreover, the submissions in the present case, as it progressed through the courts, called to attention a number of considerations that may need to be given weight in any clarification of the definition of TPM in the Copyright Act. Such considerations included the proper protection of fair dealing in works or other subject matters entitled to protection against infringement of copyright; proper protection of the rights of owners of chattels in the use and reasonable enjoyment of such chattels; the preservation of fair copying by purchasers for personal purposes; and the need to protect and uphold technological innovation which an over rigid definition of TPMs might discourage. These considerations are essential attributes of copyright law as it applies in Australia. They are integrated in the protection which that law offers to the copyright owner's interest in its intellectual property.
A court, not fully aware of the compromises that have been struck nationally and internationally and of the large debates that have addressed so-called super or "übercopyright"[173], is well advised, in the end, to confine itself to offering its best solution to the contested task of statutory interpretation. Whether that construction properly reflects the purpose that the Parliament had when it adopted its definition of TPM, or needs modification, is a decision that must be left to others in the Executive Government and the Parliament itself, assisted by the many contesting interests.
Criminal offences: There is one final, although less important, consideration that can be mentioned that favours a somewhat stricter approach to the meaning of TPM in s 10(1) of the Copyright Act than was adopted by the Full Court. This is the consideration that the statutory wrong, and civil action and remedies provided in s 116A of the Copyright Act, which depend upon the key role played in that section by the expression TPM, are reinforced by the provisions of s 132(5A) of the Copyright Act inserted by the Digital Agenda Act[174]. That sub-section, and associated provisions, make it a criminal offence to provide, promote or advertise a circumvention service or to make, sell, let for hire, distribute, import or make available online a circumvention service or to remove or alter electronic rights management information attached to a copy of a work and otherwise to act in relation to a circumvention device or service in a way prohibited by the Act's new provisions. Given the key part played in these criminal offences by the same phrase (TPM), the appellant urged this Court to give a strict meaning to the expression in conformity with the traditional approach to statutory interpretation of provisions imposing criminal sanctions.
In recent years, in this Court, there has been a diminished inclination to adopt different rules for the construction of penal legislation, and indeed legislation imposing taxation and other special categories[175]. Instead, a uniform approach, aimed to give effect to the purpose of legislation as expressed in its language, has usually replaced the special rules. Such special rules were often relics of literalism in statutory interpretation[176]. On the other hand, legislation that radically simplifies the proof of criminal offences against the Copyright Act[177], imposes a limited burden of proof on the defendant[178] and provides for criminal penalties, including imprisonment[179], invites an approach to interpretation that reflects the seriousness of the consequences attaching to a criminal conviction. The fact that the phrase TPM appears in the new criminal offences, as well as in the provision for civil remedies under s 116A, pursuant to which the appellant was sued for copyright infringement, lends some weight to a stricter meaning of the contested definition of TPM, in preference to the broader meaning adopted by the Full Court.
Conclusion: strict meaning: For the foregoing reasons, I would resolve the differences about the interpretation of the definition of TPM in s 10(1) of the Copyright Act in favour of the approach adopted at trial by the primary judge. It affords a meaning consonant with the actual language of the Copyright Act. It is consistent with the context of the definition in the provisions introduced by the Digital Agenda Act, being designed to add serious civil and criminal outcomes to circumvention of measures constituted by "devices" which by their own operation prevent or inhibit infringements of copyright. The evidence in the present case showed that the technological devices relied on by Sony were not of that character. On the basis of the evidence accepted by the primary judge, it was open to him to so conclude.
Although it may be accepted that a different construction of the Copyright Act was also reasonably available, the Full Court erred in giving effect to its opinion favourable to that alternative, broader, construction of the Act. The considerations that I have mentioned indicate why I believe it was an error for the Full Court to prefer the broader over the narrower view in this instance. The context and legal policy considerations to which I have referred ought to have caused the Full Court, in a question of statutory construction which it acknowledged to be finely balanced, to uphold the primary judge's analysis and to confirm it.

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