IP, Phone Home: Privacy as Part of Copyright's Digital Commons in Hong Kong and Australian Law

Abstract

The argument in this article is that privacy's relationship to copyright is that the right to experience intellectual works in private – free from surveillance – is part of the public domain aspect of copyright works (in Boyle's terms) or the creative commons (in Lessig's terms).

The development of content-protection technologies (CPT) and digital rights management systems (DRMS), despite their benefits to rights holders, pose many dangers to the protection of privacy, which some have said could mean an end to the privacy of reading. Hong Kong and Australia are two of the earliest jurisdictions in the world with laws implementing the anti-circumvention and rights management information (RMI) protection provisions arising from the WIPO Copyright Treaty 1996 (WCT). They are also two of the few jurisdictions outside Europe with privacy (data protection) laws applying to the private sector. These two jurisdictions, therefore, give two of the best illustrations of the tensions now arising between copyright and privacy: property versus privacy. In this article, the author explores how CPT and DRMS affect privacy, how existing data protection and privacy laws affect the operation of CPT and DRMS, and whether laws against copyright circumvention devices and interference with RMI prevent privacy protection. The author concludes that privacy could now be unduly prejudiced in favour of property, and suggests reforms which may help restore the balance. The first decision on the Australian provisions, Sony v Stevens [2002] FCA 906, also indicates that the Courts may also be interpreting anti-circumvention provisions narrowly, avoiding some of their dangers to privacy.

Keywords: privacy, copyright, public domain, DRMS, digital rights management systems, RMI, rights management information, Hong Kong, Australia