Could Sony legally make a Walkman that plays Tunes Fair Play-protected content?

摘要

This article explores whether the current Australian copyright law relating to technological protection measures has gone beyond the apparent policy intention concerned with infringement of intellectual property rights to prevent competition in complementary markets. The article uses the example of whether the law would allow Apple to restrict competing firms - such as Sony - from developing and selling content-rendering devices to play audio content protected by FairPlay digital rights management (DRM) purchased through Apple's iTunes Music Store. A brief overview of DRM, Apple's FairPlay and the development of legal protection is provided. In order to show the possible use of this legal protection to limit competition, the article explores the legislative intention behind the protection of DRM in relation to competition issues. It looks at whether, based on the current legislative regime, liability would arise if, hypothetically, Sony produced a Walkman that could play FairPlay-protected music and, to the extent that the law does prevent such a development, the competition law provisions which might assist Sony. Finally, the article considers whether the apparent legislative intent has been realised and, to the extent that it has not, it considers ways in which this intent could be achieved.