The ABC recently raised eyebrows when it wrote a cease-and-desist letter to Python i-View, a mobile application which allowed viewers of ABC’s popular iview to download and playback its content later on slow or non-compatible technology.
The issue of whether the Python-iView app infringes copyright, particularly its download feature, hinges on a number of specific sections of the Copyright Act and a concept of “vigilante interoperability”.
Firstly, some background. Launched in 2008, ABC iview is a free online service that allows users to stream but not permanently download ABC content, particularly television programs, allowing them to watch later.
More recently the ABC has started to use iview to fast-track programs. Users are now able to view some content such as Dr. Who on ABC iview before the program is shown on ABC 1, ABC 2, ABC 3 and ABC 24. Currently ABC iview is not accessible on all operating systems or platforms.
Created in 2009, the Python-iView service allowed users to permanently download content available via ABC iview. The Python-iView service also assisted users by enabling content from iview to be viewed using unsupported platforms such as Android tablets and smart phones.
It is the download feature of the Python-iView service, however, which would appear to raise the most issues.
“download (except as part of the video streaming process), retain, store, reproduce, republish, modify, adapt, translate, prepare derivative works from, reverse engineer or disassemble ABC Content, or authorise, allow or provide the means for others to do any of these things, without obtaining the ABC’s prior written permission”.
Users of the service must also be aware that there are ABC TV Access Guidelines and ABC 1 Conditions of Use. A user has to hunt to find them. However, from the creator of Python-iView Jeremy Visser’s personal webpage, it appears he was aware the ABC may embed digital rights management security in the ABC iview service or ABC content.
The ABC wrote to Mr Visser on 7 August requesting him to “cease distributing or making available the Python-iView application” on his website or on any other site.
Section 116AP of the Copyright Act does enable a copyright owner to take action against a person who offers a service to the public which they know is a circumvention service for a technological protection measure (TPM) protecting a specific copyright work.
There are four exceptions to the action permitted to the copyright owner under s 116AP.
The first is that the person did not promote, advertise or market the service as a circumvention service. Mr Visser could not rely on this exception as he has promoted his service as a means of circumventing ABC iView protections.
The second exception relates to “interoperability” of programs - where diverse systems operate together.
Mr Visser states on his webpage that the development of Python-iView is “vigilante interoperability”.
However, the interoperability exception in s 116AP is fairly specific in its operation.
It can be used if the service to circumvent a TPM is to enable lawful copying of a computer program; if the copying will not infringe the copyright in the original program; and if it is done for the sole purpose of achieving interoperability of an independently created computer program with the original program.
Thus the circumvention service is permitted if it allows the newly created computer program to work with the original program.
But it would not appear to be permitted if the purpose of the independently created program is to permit an act that the copyright owner has said is not permitted, namely, downloading.
A letter of support for the Python-iView service suggested the ABC should take the approach of “encouraging rightholders [of content] to … allow ‘fair use’ style distribution via the internet”. Currently within the Copyright Act 1968 (Cth) there is only a very limited private or domestic use for format and time shifting.
The current Australian Law Reform Commission (ALRC) copyright review is exploring the extent and adequacy of personal fair use permitted in the Act.
Mr Visser’s Python-iView, however, did go further than just assisting him alone to access ABC iview data - it appears to have assisted many others as well.