The Federal Court in Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd [2001] FCA 1719 (7 December 2001) has determined that mere playing of a DVD and the ephemeral embodiment of tiny fractions of the visual images and sounds that comprise a film in the Random Access Memory (RAM) of a computer or DVD player does not constitute the act of making a copy of a film under s 86a of the Copyright Act 1968 ("the Act"). In this instance, neither the whole nor any substantial part of a film is ever embodied in the RAM of a DVD player or computer at any given time. The mere fact that, over a period of time, (being the time taken to play the film) tiny parts are sequentially stored in the RAM does not mean that the film is embodied in such a device. As a result, a consumer, by playing a DVD, does not, for the purposes of the Act, make a copy of the whole or a substantial part of the film embodied in that DVD.
The decision is the result of an action brought by Warner Home Video where Warner Home Video asked the court to consider, among other things, whether copyright in the motion pictures embodied in certain DVDs would be infringed by a person who, without a licence, rents and plays a DVD that embodies those pictures. The action was an attempt to maintain the systme of distribution of DVD copies of motion pictures to retail outlets and rental outlets at different prices, in part to reflect the rental revenue gained over the life of a rental DVD, despite the release of both versions at the same time and with price being the only difference. As a result, some rental stores had been purchasing retail versions of DVDs for the purpose of renting.
Warner Home Video relied on the fact that, when a DVD is played on a DVD player or computer, playback occurs by passing the motion picture to the RAM and thus a copy of the motion picture is made. All commands, along with the audio, video and caption content embodied in a DVD, are copied, as required, and stored, temporarily, in the RAM of the DVD player or computer. At any given moment, a tiny fraction of that audio, video and caption content of the DVD disc is stored in RAM. No part of that content cam be viewed unless it has first been temporarily stored in RAM. Accordingly, if the entire motion picture is viewed, the entire motion picture will have been sequentially copied into the RAM of the DVD player or computer. In this case, the copy is temporary; when the program finishes, all instructions associated with that program are no longer protected against overwrite within the RAM and, as a result of RAM being volatile, will be lost when the DVD player or computer is turned off.
Warner Home Video also asked the court to consider the extent to which copyright existed in computer programs contained on the DVD. The Act covers "computer programs" which are a "set of statements or instructions to be used directly or indirectly in a computer program in order to bring about a certain result." In relation to this the court held that copyright only existed in the program instructions used by the DVD player to navigate through the audio, video and other content and that the protection under the Act did not extend to cover the content that was reproduced as a result of the execution of the computer program.
This article appeared in the Deacons Bits and Bytes newsletter
December, 2002
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