Locking in Customers, Locking out Competitors: Anti-Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets

Australian copyright law is poised on the brink of major change. Even before the first test case of the Digital Agenda reforms, Australia had committed to a wholesale rewrite of those reforms under the Australia-United States Free Trade Agreement. This article falls broadly into two parts. The first part examines the intellectual property laws relating to Digital Rights Management technologies. It explores the history of so-called 'anti-circumvention' laws nationally and internationally and important precedents. The second part examines whether Australian competition law is equipped to address any anti-competitive conduct facilitated by 'technological protection measures', which can be used to lock-in consumers, and lock-out competitors. Important US precedents including Lexmark v Static Control Components and Chamberlain Group v Skylink Technologies will be analysed under Australian law, both as it now stands and under the FTA, including an examination of relevant provisions of Part IV of the Trade Practices Act and especially the intellectual property exception in section 51(3).