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[4.1] Definition of ERM Information

[4.1] Definition of ERM Information

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
To include this type of information, “electronic” must be expanded to include information that is
stored magnetically which requires an electronic device to read the information encoded in the
material of the disk. If this wider definition of “electronic” is correct then magnetic tape such as VHS
or audio cassette tapes would also have to be included, since they are only distinguished by the
utilisation of analogue encoding rather than digital encoding on the magnetic material.
There are other methods of storing information that can only be read using electronic means, but do
not use magnetic material. The barcodes attached to products use ink to store information. It is
arguable that information stored in this manner would be included if the definition is expanded to
take account of information stored magnetically. In summary, there is wide spectrum of information
that could be considered “electronic” by the courts:
(1) information stored in electronic circuitry;
(2) information stored by writing and reading electronically on magnetic medium; and
(3) information that can only be read electronically
How the definition will be interpreted is still open, since there have been no reported cases in
Australia for prosecutions under Subdivision F, nor are there any reported civil cases under ss 116B,
116C or 116CA of the Copyright Act 1968 (Cth). 817

[4.1.2] “is or was attached to, or is or was embodied in, a copy of the work”
ERM information may be attached to a copy of the work or embodied in a copy of the work. It is
common for CDs, DVDs, and various computer files to contain metadata. 818 This information is not
ordinarily accessible to ordinary playback devices, but specialist devices and computers are able to
access and alter this information. Information that would also be embodied in a copy would be the
credits shown at the end of cinematographic films.
The tangible objects that contain copyright material, such as CDs and DVDs, are not works or other
subject matter protected by copyright law. Any information that is in these objects, but does not
form part of the copyright work would be better described as being attached to the work. The
definition is silent regarding the level of adhesion required for the information to be considered
“attached”. It is unclear if permanent attachment to the copyright material is required, or if
temporary attachment would be sufficient. A DVD may contain ERM information printed on its
surface in the form of a barcode for instance. The case containing the DVD is almost certain to

817
818

Copyright Act 1968 (Cth) ss 116B, 116C, 116CA
See http://en.wikipedia.org/wiki/Metadata (Accessed 27 July 2012)

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Chapter 6
contain a barcode with information. Again it is unclear if this would be sufficiently attached to the
work to fall under the definition.

[4.1.3] “appears or appeared in connection with a communication, or the
making available”
For copyright material that has been communicated or made available it is only necessary that the
information appears or appeared in connection with the communication or making available. 819 It is
not required to be attached or embodied. This would include information contained in emails sent
with the copyright material or notices that appear on websites.

[4.1.4] “identifies the work or subject-matter, and its author or copyright
owner” or “terms and conditions”
The ERM information itself must either:
(1) identify the work or subject-matter, and its author or copyright owner (including such
information represented as numbers or codes); 820 or
(2) identify or indicate some or all of the terms and conditions on which the work or subjectmatter may be used, or indicate that the use of the work or subject-matter is subject to
terms or conditions (including such information represented as numbers or codes). 821
ERM information may not always be apparent to the end user if it is expressed in a coded form. The
definition is unclear if combined encoded information about the work, and the author or copyright
owner needs to appear separately or if it can be a compound code which identifies both in one code.
If the information is encoded, it may be impossible for a third party to even know that the
information is used for the purpose of ERM. Many websites providing audio or visual files use a
naming convention or code which allows the owners to easily identify and organise their works for
the purposes of managing the operation of their servers. Even a file name that contains the required
information could be characterised as ERM information. This would mean that an offence could be
committed under s 132AQ if an end user removes or alters the filename given by the provider, even
if they have acquired the file legitimately.
Information that identifies some or all of terms and conditions, or indicates that the copyright
material is subject to terms and conditions is also capable of being interpreted broadly. One

819

Copyright Act 1968 (Cth) s 10 “electronic rights management information” (b)(ii)
Copyright Act 1968 (Cth) s 10 “electronic rights management information” (c)(i)
821
Copyright Act 1968 (Cth) s 10 “electronic rights management information” (c)(ii)
820

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Offences in the Copyright Act 1968(Cth): Will They Be Effective?
example of this type of information is the indicator buttons used by the various Creative Commons
licences. 822 The minimum information that would indicate that the use of the copyright material is
subject to terms or conditions would be contained the archetypal indicator “© All rights reserved”.

[4.2] Section 132AQ: Removing or altering ERM information
Section 132AQ [see Appendix at page 351] contains offences for removing or altering electronic
rights management information. There are three offences under s 132AQ, which are tiered
according to culpability. All consist of four physical elements:
(1) copyright subsists in a work or other subject matter;
(2) the removal or alteration of ERM information that relates to that work or other subject
matter;
(3) the person does so without the permission or exclusive licensee of the copyright; 823 and
(4) the removal or alteration will induce, enable, facilitate or conceal an infringement of the
copyright.
In the case of the indictable 824 and summary offences, 825 there are also corresponding mental
elements. The meaning of “copyright subsists” in the first element of the offences is discussed in
Chapter 5 at paragraph [4.1].
[4.2.1] “removes [or] alters any electronic rights management information”
This element of the offences is contained in separate subsections across the three offences. One
subsection in each offence prohibits the removal of ERM information; the other prohibits the
alteration of ERM information. As both of these physical elements consist of conduct and no fault
element is specified, the Criminal Code Act 1995 (Cth) provides that intention is the fault element

826

for the indictable and summary offences.
The removal of ERM information from a copy is intended to cover situations where copies are made
of copyright material, but the ERM information attached or embedded in the original is not attached
or embodied in the copy. When a digital copy is made by a computer, the computer reads the data
in the original file and then creates a new copy of the file on the hard drive of the computer. If the

822

See http://creativecommons.org.au/learn-more/licences (Accessed 27 July 2012)
As discussed at [4.2.2.], it is unclear if this is actually an element to the offence, or if it is a qualification or a
defense to the conduct element of the offence.
824
Copyright Act 1968 (Cth) s 132AQ(1)
825
Copyright Act 1968 (Cth) s 132AQ(2)
826
Criminal Code Act 1995 (Cth) sch 1 s 5.6(1)
823

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Chapter 6
ERM information is not copied, it is not actually removed from the original copy. It is simply never
transferred to the new copy. The analogue equivalent would be to not copy the end credits of a film.
The manner in which the subsection is phrased does not accurately reflect this process. It suggests
that the ERM information must actually be removed from a copy of the work. This problem is equally
applicable to the second subsection, where the conduct consists of altering ERM information. 827
It may be difficult to successfully argue this interpretation in court. It does not correspond with the
purpose 828 of the Copyright Act 1968 (Cth) and the courts may give a wider construction of the word
“removes”, without regard to the technicalities of the copying process.
ERM information can be removed or altered without creating an additional copy. Audio, video or
picture files that are stored on a computer hard disk drive can be renamed. If the filename contains
ERM information then changing the filename could constitute altering ERM information. Many of
these files also contain metadata consisting of ERM information, all of which can be removed or
altered with specialist computer programs 829 without making a new copy. It has been alleged that
the website Facebook routinely strips the metadata from photographs that are uploaded to its
website. 830
[4.2.2] “the person does so without the permission of the owner or exclusive licensee”
This subsection of the offences requires legislative clarification. It is unclear if it is intended to be a
distinct element to the offence, or a qualification to the conduct element. The distinction is
important. If the subsection is characterised as a qualification to the conduct element, the evidential
burden is borne by the defence to prove that permission has been given. 831 If the subsection is
characterised as an element of the offence, the prosecution would have to prove that no permission
was granted, and in the case of the indictable and summary offence to prove that the fault element.

827

Copyright Act 1968 (Cth) ss 132AQ(1)(b)(ii) and (3)(b)(ii)
Acts Interpretation Act 1901 (Cth) s 15AA (“In the interpretation of a provision of an Act, a construction that
would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in
the Act or not) shall be preferred to a construction that would not promote that purpose or object.)
829
See generally - http://lifehacker.com/#!5149327/jpeg--png-stripper-removes-the-metadata-from-yourimages (Accessed 22 February 2011); http://www.becyhome.de/becypdfmetaedit/description_eng.htm
(Accessed 22 February 2011); http://www.sobolsoft.com/removemetadata/ (Accessed 22 February 2011)
830
See http://www.plagiarismtoday.com/2008/11/05/facebook-flickr-strip-copyright-data-from-images/
(Accessed 22 February 2011)
831
Criminal Code Act 1995 (Cth) sch 1 s 13.3(3)( “A defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the law creating an offence bears an evidential burden in
relation to that matter.”)
828

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