Mr WILLIAMS (Attorney-General) (10:20 AM) —I move:

That the bill be now read a second time.

This bill is yet another important landmark in the government's on-going program of copyright reform. The last 18 months have seen the passage of legislation to remove restrictions on the importation of legitimate overseas compact discs—a reform that has delivered greater choice and lower prices for Australian consumers. It has seen the passage of the Copyright Amendment (Computer Programs) Act 1999, which will enable our software developers to compete on an equal footing with their counterparts overseas. And, most recently, we have seen the introduction into this House of the Copyright Amendment (Digital Agenda) Bill 1999, which will update Australia's copyright law to meet the challenges posed by digital technologies.

The bill I am introducing today will establish for the first time a comprehensive regime for the protection of the moral rights of Australian authors, artists and film-makers. The bill implements the coalition's commitment at the 1996 election—reiterated at the 1998 election—to develop legislation to ensure greater respect for the integrity of creative endeavour.

The bill incorporates provisions previously included in the Copyright Amendment Bill 1997. The moral rights provisions were withdrawn from that bill in 1998 when it became apparent that there was a need for further consultation on two or three specific issues of concern to industry. Aside from these issues, there was a favourable reaction to most areas of the original legislation, and the government has retained those areas intact in this bill.

At the time the moral rights provisions were withdrawn, the government gave an undertaking that they would be reintroduced after further consultations to resolve the disputed issues. Consultations late last year and earlier this year resulted in a number of proposals that have been implemented in this bill. Comprehensive protection of moral rights for authors and artists is something Australia's creators have long been advocating. Moral rights are also the subject of longstanding international obligations for Australia.

The Berne Convention for the Protection of Literary and Artistic Works is the main international convention on copyright. Under the convention, `moral rights' are:

the right of an author or artist to be identified with his or her works—known as the right of attribution; and

the right to object to alteration or other derogatory treatment of the work that would be prejudicial to the author or artist's honour or reputation—known as the right of integrity.

The rights apply to literary, dramatic, musical and artistic works and films, but not to sound recordings. There has been increasing criticism that Australia's implementation of its obligations under the Berne Convention is fragmentary and incomplete. This bill will address those criticisms.

But this bill is not just about fulfilling international obligations. More importantly, it is about acknowledging the great importance of respect for the integrity of creative endeavour. At its most basic, this bill is a recognition of the importance to Australian culture of literary, artistic, musical and dramatic works and of those who create them.

The government recognises the concerns of users of copyright—such as broadcasters, advertising agencies, film-makers and newspaper publishers—that moral rights will unduly hamper their existing practices. However, if a user of a work respects the rights of the creator, the user will not need the author's permission in making use of that work. Thus, if a user acknowledges, where reasonable, the authorship of the work and, where reasonable, avoids treatment that is prejudicial to the reputation of the author, there can be no objection by the author or creator.

Turning to some of the key aspects of this bill that differ from the original legislation, the Senate committee that examined the original legislation recommended that the writers of scripts for films and television programs should be considered authors of the film or television program alongside the authors designated by the original legislation—namely, the producer and the director. The government accepted that recommendation, and the bill provides accordingly.

A related proposal coming out of the recent consultations asked for legal recognition of an agreement among the producer, director and screenwriter of a film, or some of them, on the joint exercise of their rights of integrity. It was proposed that such an agreement should operate to prevent any one of the parties to the agreement from separately taking action to enforce that right. The bill reflects the government's acceptance of this proposal and gives legal recognition to these co-authorship agreements.

As recognised by the government when withdrawing the original legislation, the most controversial and divisive issue was whether it should be possible for authors, artists and film-makers to waive their moral rights. Understandably, creators saw the provision for waiver in the original legislation as a means by which economically powerful users of their works could force them to agree to give up these new rights completely. In response to these concerns, the concept of waiver has been dropped from this bill.

At the same time, the bill clarifies the provision that was in the original legislation for an author, artist or film-maker to consent to the doing of something that would otherwise infringe his or her moral rights.

In determining whether non-attribution of authorship of a work is an infringement of moral rights, a court will have to consider whether the omission was reasonable in the circumstances. Reasonableness will depend on a number of relevant factors that must be taken into account—notably, the nature of the work, industry practice and whether the creator was an employee. This bill has added to the original legislation by including as a factor any relevant voluntary industry code of practice.

Whether alteration of or dealing with a work infringes the right of integrity will also be subject to a similar test of reasonableness based on corresponding factors. As under the original legislation, some specific actions have been expressly exempted from infringement of the right of integrity. This bill clarifies one of those exceptions—that alteration to or demolition of a building will not infringe the right of integrity in the architect's design or in any work, such as a mural, that forms part of the building. This was always the government's policy intention, but there was some concern expressed that the drafting of the original legislation was ambiguous. Of course, where a building is altered without consulting the architect, the owner might have to remove any public sign—such as a wall plaque—giving the false impression that the architect designed the building as altered, if the architect so desires.

The bill includes provision for a wide range of remedies that courts can apply in redressing the injury caused by an infringement of moral rights. This bill has added to the original legislation by including a requirement that, before granting an injunction, a court must consider whether to give the parties an opportunity to reach a settlement by negotiation or mediation.

Experience in other countries suggests—and the government envisages—that enforcement of moral rights through the courts will be an exceptional occurrence. We believe that the main impact of the new legislation will be to build upon existing good industry practice and, where necessary, to raise awareness in an educative way of the need to respect the creativity of authors and artists.

Another issue that arose in the most recent consultations was the duration of the new moral rights. Under the earlier legislation, the rights would have lasted for the duration of the copyright—that is, the life of the author of the work plus 50 years or, in the case of a film, 50 years from publication. The agreement that emerged from industry consultations included a proposal that the right of integrity should cease on the death of the author, artist or film-maker. This bill implements that agreement.

A matter that preoccupied the Senate committee and came up in the later consultations was the extent to which the new moral rights should apply to works and films already in existence. Both the majority and the minority of the Senate committee recommend ed that the new rights should not apply to existing films or to works by authors and artists who had died when the new rights became operative. The agreement by parties in the film industry also proposed that the new rights only apply to films made after the rights come into force.

Accordingly, the approach adopted in the bill has been to limit the application of the right of integrity to future works and films but to continue to apply the right of attribution and the right against false attribution to existing works. Because of the nature of the right of attribution in relation to films, that right too will not apply to existing films.

This bill is another initiative from a government committed to reshaping copyright law for the 21st century and beyond. Those parts of the original legislation that were widely supported have been preserved in this bill. The government has addressed the main issues of controversy and has accommodated as far as possible the agreements and views conveyed to us.

The bill with these changes is, I believe, a balanced package of rights, which will represent a great advance in the recognition of, and respect for, the creativity of authors, artists and film-makers. It is a workable scheme that deserves the strong support of this parliament. I commend the bill to the House. I present the explanatory memorandum to the bill.

Debate (on motion by Mr O'Connor) adjourned.