In this paper, Professor Brian Fitzgerald and Nic Suzor consider the definition of 'Technological Protection Measure' and the meaning of 'Effective Technological Measure' (ETM) in Article 17.4.7 of the Australia-United States Free Trade Agreement (AUSFTA). We consider the effect of the recent High Court decision in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 and the emphasis of the court on upholding consumer interests. We also consider the recommendations of the House of Representatives Standing Committee on Legal And Constitutional Affairs (LACA) with respect to Art 17.4.7, and the way in which these recommendations can be implemented to protect the legitimate interests of both copyright holders and consumers, while staying within the boundaries of our international obligations. We conclude that the recommendation that liability for circumvention of technological measures should be linked to copyright infringement, and that the LACA recommendation, the text of the AUSFTA, and a recent US Court of Appeals decision in StorageTek v Custom Hardware Engineering ((2005) 421 F.3d 1307) all provide support for this proposition.
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