HIGH COURT Justice Michael Kirby opened NSW Arts Law Week last week with a speech in which he predicted that recent changes to the copyright legislation, following the High Court’s decision in Stevens v Sony, would be challenged as unconstitutional, but not during his tenure.
In the Stevens v Sony case, the High Court unanimously found in favour of Sydney businessman Eddie Stevens, ruling that the sale of mod chips by Stevens did not constitute a breach of provisions of the Copyright Act.
Legislative changes since that decision could mean that if a protection measure is attached to a copyrighted movie or game then “chipping” to circumvent it may be illegal, even to play a legitimately purchased game from another region.
Furthermore, that chipping may be illegal indefinitely — long after the copyright period has expired on the movie or game, he said.
“The question that is really presented by the Sony litigation and the new decision of the participating members laid last year for the Copyright Act is ultimately going to be a question of whether those amendments take the legislation outside the constitutional power in respect of copyright and intellectual property protection,” Justice Kirby told guests at the Arts Law Week Launch.
Justice Kirby said that he did not imagine the case would come before the court in the next couple of years, but might come before Justice Gummow, who had brought the issue to his attention earlier that evening.
“It’s likely to be a question that will come back to the High Court but alas I fear, seeing as I’ve only got two years to run, probably after my time,” he said.