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There are two issues at play here. The first is that, in 2006, it was deemed legal to make a backup of a "cinematograph film" for private and domestic use in an amendment to the Copyright Act. You can see the legislation here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_act/caa2006213/sch6.html

110AA Copying cinematograph film in different format for private use

(1) This section applies if:

(a) the owner of videotape embodying a cinematograph film in analog form makes a copy (the main copy ) of the film in electronic form for his or her private and domestic use instead of the videotape; and

(b) the videotape itself is not an infringing copy of the film or of a broadcast, sound recording, work or published edition of a work; and

(c) at the time the owner makes the main copy, he or she has not made, and is not making, another copy that embodies the film in an electronic form substantially identical to the electronic form in which the film is embodied in the main copy.

For this purpose, disregard a temporary copy of the film incidentally made as a necessary part of the technical process of making the main copy.

(2) The making of the main copy is not an infringement of copyright in the cinematograph film or in a work or other subject‑matter included in the film.

Dealing with main copy may make it an infringing copy

(3) Subsection (2) is taken never to have applied if the main copy is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise.

Note: If the main copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the main copy but also by the dealing with the main copy.

(snipped for brevity)

This is all well and good, but what if I need to circumvent an access control (namely, the Content Scrambling System, or CSS) to make this copy? Does the DMCA prevent this 2006 amendment from applying in practice, as the vast majority of DVDs are encumbered with this DRM?

This article from the Sydney Morning Herald in 2014 suggests this is the case: https://www.smh.com.au/technology/when-can-we-copy-our-dvds-20140804-1005p9.html

If it isn't legal to circumvent CSS to make a private backup, is it legal to circumvent CSS for any reason? I can't find any Australian cases about DVD ripping.

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  • IANAL, but doesn't "videotape embodying a cinematograph film in analog form" mean the law won't apply to a DVD, which is neither tape, nor analogue?
    – TripeHound
    Commented Oct 9, 2023 at 10:31
  • You make a good point. I originally found my way onto this webpage from the Wikipedia page on DVD Ripping, so it would appear someone has misinterpreted the legislation: en.wikipedia.org/wiki/Ripping#Australia_and_New_Zealand Official gov website: alrc.gov.au/publication/copyright-and-the-digital-economy-ip-42/… "This means the exception does not apply to copies made from, for example, DVDs and Blu-Ray discs." Nonetheless, I guess my question still applies to CDs? I don't buy CDs, but I would assume many are encumbered with an access control.
    – ripandtear
    Commented Oct 9, 2023 at 14:27

1 Answer 1

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DVDs are not “in analog form”

s110AA does not apply to DVDs because of this.

Australian copyright law does not use the US concept of fair use but rather the fair dealing. Fair use does not set a priori rules on when a use is fair or not, each case is judged on its merits against the criteria. However, fair dealing enumerates a list of usages that are fair - this provides more certainty up front but limits fair dealing only to those enumerated uses.

The enumerated use for privately copying a cinematograph film is that it must be stored “in analog form” - DVDs don’t do that. Ergo, you cannot copy DVDs.

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  • The more you know! I would add that the use of fair dealing prevents Australian Law from adapting quickly to innovations like the DVD and Blu-Ray formats. On the face of it, there is no practical difference between a VHS tape or unencrypted DVD, but because the original law did not enumerate the DVD format, this use is not covered. In fact, it's easier to copy a VHS tape than a DVD because VHS tapes are not encumbered with DRM, so I don't know why the act has not yet been amended to protect this use case.
    – ripandtear
    Commented Oct 10, 2023 at 3:04
  • @ripandtear this is clearly a deliberate decision by the lawmakers. By specifying that it only applies to analog recordings they are deliberately excluding DVDs and Blue Rays. Why is off-topic here but you might get an answer on politics.
    – Dale M
    Commented Oct 10, 2023 at 6:35
  • @ripandtear "prevents Australian Law from adapting quickly to innovations like the DVD" The format was introduced in 1996 (Wikipedia), giving Australia plenty of time to amend the law if they wished to, inspite of any delaying effects you claim.
    – TripeHound
    Commented Oct 10, 2023 at 19:58

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