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Wednesday, 20 April 1966

Mr SNEDDEN (Bruce) (AttorneyGeneral) . - by leave - Honorable members will recall that in hrs policy statement to the House on 8th March of this year the Prime Minister (Mr. Harold Holt) said that the Government is preparing new copyright legislation. It will not be possible to complete the drafting so as to enable a Copyright Bill to be introduced in the present session of the Parliament. The Government is aware of the pressing need for an up to date copyright law in Australia which will take account of modern developments in entertainment, communications and publishing, and which is adapted to Australian needs. Furthermore, changes in our copyright law are required before Australia can become a party to the Universal Copyright Convention and so enable our authors to enjoy full copyright privileges in the United States of America. My purpose in making a statement is to outline to the House the nature of the Copyright Bill that I expect to introduce in the Budget sittings this year, and to inform the House that it is the Government's intention that Australia should become a party to the Universal Copyright Convention as soon as the new law comes into operation.

The present copyright law in force in Australia is the United Kingdom Copyright Act 1911. That Act was declared to be in force in Australia as an imperial act by the Copyright Act 1912. The 1911 Act is no longer the law in the United Kingdom; it has been repealed and replaced by new legislation. Nevertheless, the 1911 Act has continued to be the copyright law in force in Australia. Subsequent to the enactment of the United Kingdom Act of 1956. the then Attorney-General. Sir Neil O'sullivan, set up an expert committee to examine the copyright law of Australia and to recommend what alterations should be made to it in the light of that Act. The chairman of the committee was Sir John Spicer, Chief Judge of the Commonwealth Industrial Court, who has had considerable experience in copyright law. The other members of the committee were Sir Arthur Dean, formerly a Judge of the Victorian Supreme Court - he was a judge at the time the committee reported and he has only recently retired; Mr. G. A. Ferguson, C.B.E., a director of the publishing house of Angus & Robertson Limited; the Rev. Dr. Percy Jones, Vice-Director of Melbourne Conservatorium of Music; and Mr. A. J. Moir, a Melbourne solicitor. All of these have had long experience in copyright matters.

The committee presented its report on 22nd December 1959. The report was published; copies were circulated to members of both Houses of the Parliament and were made available to the public. Since then, many of the interested parties have made further representations to my predecessor and to me concerning matters dealt with by the committee's recommendations. Copyright is a complex field in which there are many conflicting interests. In my study of the committee's report and of the representations which have been made I have had regard to the views of all parties concerned. I believe that the Bill which I intend to introduce represents the best adjustment of these interests, having regard to Australian circumstances and to our existing and proposed international commitments.

In substance, the committee recommended the enactment of legislation to give effect to the principles of the United Kingdom Copyright Act 1956, but with some significant modifications. The Bill which the Government proposes will, for the most part, give effect to the recommendations of the committee. Some recommendations, however, have not been accepted. The most important matters on which the proposed legislation will depart from the recommendations of the committee are concerned with: (a) The persons entitled to copyright protection in Australia; (b) the statutory royalty payable by the manufacturer of a sound recording of a musical work; and (c) the rights of public performance in sound recordings and in television broadcasts.

I now deal with the first of these matters. It has long been the practice to grant rights under copyright law on the basis of the nationality of the author as well as his place of residence. Under the existing law in Australia, copyright in unpublished works depends on the nationality of the author, or the country where he resides at the date of making the work. Copyright in published works depends on the place where the work is first published. The 1956 United Kingdom Act extends the principle of nationality to published works as well as to unpublished works. Copyright in the United Kingdom under that Act subsists in unpublished works where the author is a British subject or is domiciled or resident in the United Kingdom at the time of making the work. Copyright in published works subsists if the author of the work was a British subject or was domiciled or resident in the United Kingdom at the time when the work was first published. The place of first publication is retained as an alternative criterion in determining whether copyright subsists in the United Kingdom in a published work. The committee recommended the adoption of like provisions in Australia.

To grant copyright protection iti Australia to the works of all persons who are British subjects at the time of making or publishing the work would be to confer copyright protection on the works of citizens of countries which do not automatically confer copyright protection in their own territories on the works of Australian citizens. This comes about because of the classes of persons who are accorded the status of British subject under the Nationality and Citizenship Act. For this reason, the committee's recommendation will not be adopted in the proposed Bill. Since the committee made its report, a new copyright law has been enacted in New Zealand. That law restricts the adoption of the nationality principle in so far as it gives a primary grant of copyright to New Zealand citizens. However, rt does grant copyright protection to nationals or citizens of other countries, including, for example, Australian citizens, if the country of those persons, on a reciprocal basis, also grants copyright to New Zealand citizens. This, in the Government's view, is a preferable provision to the United Kingdom provision and will be incorporated in the Bill. In the result, copyright protection will continue to be given in Australia to works of citizens of the United Kingdom, but this will be based on common membership of international conventions on copyright and not on an automatic grant of rights as under the committee's proposals.

The next point of substance on which the Bill will depart from the committee's recommendations concerns the provisions relating to the manufacture of records of musical works under the compulsory licensing provisions. The compulsory licensing provisions were the subject of much debate before the committee and there have been strong representations on this subject from interested parties since the publication of the committee's report. In order to explain the issues involved it is necessary to set out some of the background.

Copyright in a musical work includes the right to authorise the making of records of that work. The existing law in force in Australia, in common with that of most countries, contains provisions which amount to a legislative grant of a compulsory licence for the making of records of musical works. It arises by reason of the provision that once the owner of copyright in a musical work permits a manufacturer to make a record of that work any other record manufacturer may record that work subject to the fulfilment of certain conditions. One of these conditions is that he shall pay to the copyright owner a royalty at a rate specified in the Act.

The committee recommended the continuation of the compulsory licensing provisions and the proposed Bill will contain provisions to that effect. It will not, however, follow the committee's recommendations on the rate of royalty. Under the existing law, the record manufacturer who takes advantage of the compulsory licensing provision must pay to the copyright owner a royalty equal to 5 per cent, of the retail selling price of the record including sales tax. In addition, a minimum royalty is prescribed. It must not be less than one half penny for each separate musical work which is reproduced on the record. The committee proposed that the rate of royalty should be increased to 6i per cent, of the ordinary retail selling price of the record including sales tax. It also proposed that the minimum royalty should be one penny for each work. The Bill will adopt the committee's recommendation as to minimum royalty, except that, consequent upon the changeover to decimal currency, it will fix the minimum royalty at one cent. But as to the rate of royalty, the Government has come to the conclusion, on examining all aspects of the matter, that an increase from 5 per cent, to 6i per cent, is not justified.

In considering this matter, it should be remembered that all but a small proportion of records sold in Australia are manufac- tured from matrices originally produced overseas. Evidence before the committee showed that only about 4 per cent, of records sold in Australia are originally recorded here. I understand that this percentage has since increased, but not so much as to affect the overall position that the great preponderance of records sold here are originally recorded overseas. Furthermore, it should be remembered also that copyright in the musical works recorded on all but a small proportion of the records sold in Australia is held by or derives from overseas copyright owners. It is, in my view, relevant to take into consideration the returns which a copyright owner would get from the sale of records in his own country when assessing what return he should get from the sale of records in Australia.

The United Kingdom and the United States are, of course, the sources of most copyright music contained on records sold in Australia. In the United Kingdom, the statutory royalty is fixed at 6i per cent, of the retail selling price of the record, but this does not include purchase tax. In the United States of America, the statutory rate of royalty is fixed at two U.S. cents for each separate work contained in the record. If one takes as the basis of calculation the ordinary 12-inch L.P. record, then a comparison of the returns to the copyright owner will show that the copyright owner receives substantially more at the existing rate of royalty from a record sold in Australia than he does from a record sold in the United Kingdom or in the United States. To increase the rate of royalty payable on records sold in Australia would therefore be to benefit people overseas at a cost borne by the purchasers of records in Australia.

For these reasons, the Bill will not increase in the hands of the copyright owner the present statutory rate of royalty in Australia, that is, 5 per cent, of the retail selling price of the record including sales tax. In this context, I draw attention to the recommendation of the committee which is adopted and which would enable those who contend for a higher rate of royalty to seek an increase by means of the procedure for altering the statutory royalty which will be contained in the Bill. The committee recommended that the task of revising the rate could be included in the functions of the copyright tribunal which will be set up under the Bill. The primary function of the tribunal will be to arbitrate between bodies such as the Australasian Performing Right Association, which grants licences on behalf of copyright owners, and the users of copyright music.

I turn now to public performance rights in sound recordings. The existing law gives the manufacturer of a record a right to control the public performance and broadcasting of his records. Only some countries grant such a right to the record manufacturer. For example, this right does not exist in the United States of America. Under the 1956 United Kingdom Act, this right is continued but it does not extend to records originating in a country which does not grant this right. That is, the United Kingdom Act adopts a reciprocity test in relation to other countries. The committee recommended that the right should extend to all records irrespective of whether such rights are granted in the country from which the record originates. In this respect, the recommendation differs from the situation under the United Kingdom law in that it abandons the reciprocity test and from the United States where no right is granted.

The present situation in practice in Australia is that there is a dispute between the commercial broadcasting stations and the record manufacturers as to whether the existing law gives a broadcasting right in records originating in countries which do not grant such a right. The parties have reached an agreement under which the commercial broadcasting stations do not pay royalties in respect of broadcasting rights in records. The broadcasters undertake to restriet the playing of records at the request of the record manufacturers. They also give some broadcast time without charge to publicising the discs of the record manufacturers. On the other hand, the Australian Broadcasting Commission has an arrangement with record manufacturers whereby it pays a substantial annual sum in royalties to record manufacturers for broadcasting rights in records.

The Government does not propose to follow the committee's recommendation in relation to the rights of public performance and broadcasting in sound recordings. There is, in my view, no justification for granting these rights in respect of records which originate from countries which do not grant such rights. But, as regards records generally, I do not think that record manufacturers should be given a right which would clearly entitle them to collect royalties they do not now receive from commercial broadcasting stations. On the other hand, I recognise that there is a case for allowing the record manufacturers to restrict the playing of their records before the date on which the records are released on the market for retail sale. The Bill will, therefore, give to the owner of the copyright in a sound recording a limited right to restrict the broadcasting or other public performance of a record before its release for retail sale but will not give, him any rights to collect royalties in respect of the public performance or broadcasting of that record.

As regards the rights of public performance in a television broadcast the 1956 United Kingdom Act gave, for the first time, a broadcaster the right to prevent a television broadcast from being seen in public by a paying audience. The committee recommended the adoption of a similar provision in Australia. With the benefit of hindsight not available to the committee, we can see that, in the years since it made its report, television has become so widespread in Australia that there is little possibility of persons using television broadcasts for direct profit by displaying them to a paying audience. The television broadcasters have not had to depend, nor do they need to depend, upon such rights to earn revenue from their broadcasts. The Bill will, therefore, not give to the owner of the copyright in a television broadcast the right to prevent that broadcast from being seen in public by a paying audience.

I have said that the Government intends that Australia should become a member of the Universal Copyright Convention. There are, I should explain to the House, two international conventions dealing with the subject of copyright. The earlier one, commonly known as the Berne Convention, was signed at Berne on 9th September 1 886, and has been subsequently revised on three occasions, at Berlin in 1908, at Rome in 1928 and at Brussels in 1948. Australia is a party to the Berne Convention but only in respect of the convention as revised at

Berlin and at Rome. Australia has not acceded to the Brussels revision of that convention.

The second convention relating to copyright is the Universal Copyright Convention which was signed at Geneva in 1952. Australia has not become a party to this convention. What is of particular importance to Australia is that the United States of America is a party to the Universal Copyright Convention but is not a party to the Berne Convention. This has meant that there are not full reciprocal relationships between the United States and Australia in the copyright field and this has placed our authors and book publishers at a disadvantage in competing on the United S a tes market.

The Committee recommended that Australa should become a party to the Brussels revision of the Berne Convention and to the Universal Copyright Convention and the Government accepts that recommendation. The changes in Australian copyright law to be effected by the proposed Bill would satisfy the requirements of these two conventions. The way will then be clear for Australia to become a party to the Universal Copyright Convention and to the Brussels revision of the Berne Convention when the new copyright law comes into force.

The drafting of the new legislation is a major task. It is not intended simply to transcribe, with necessary modifications, the provisions of the United Kingdom Act. The committee in its report drew attention, as other learned writers have done, to difficulties in language and drafting form in that Act. The Parliamentary Draftsman will embody the principles of that Act, subject to the modifications I have indicated, into a form which follows the pattern that has long been established for Commonwealth statutes. Some idea of the magnitude of this task may be gathered from the fact that the Copyright Act 1956 of the United Kingdom has 51 sections and 9 schedules and occupies 92 pages of print. In considering the application of the provisions of that Act to Australia, it has already been found that there are many matters of detail not dealt with by the committee's report in respect of which changes will have to be made. No doubt, more will be found as the drafting of the Bill proceeds.

Nevertheless, it is my intention to introduce the Bill, if at all possible, during the Budget sittings of the Parliament.

I have not attempted to traverse, in the course of this statement, all of the changes in this very technical branch of the law which would be effected by the proposed Bill. The changes are described in the committee's report except, of course, to the extent to which I have indicated that the Bill will depart from the committee's recommendations. I am arranging for each member of both Houses of the Parliament to receive a copy of the report.

In conclusion, I should like to pay a tribute to the painstaking work of the Copyright Law Review Committee and to extend my own thanks to the members of that committee for the public service which they have rendered.

Mr Whitlam - May I ask the AttorneyGeneral to what extent the Bill which he has foreshadowed will adopt the provisions of a third copyright convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, which was drawn up in Rome in October 1961, almost two years after the Copyright Law Review Committee gave its report to the Minister's predecessor?

Mr SNEDDEN - I regret that I am not in a position to give an answer to the Deputy Leader of the Opposition. I have not the matter in my mind but I will make appropriate inquiries and ensure that the honorable gentleman is informed whether or not the Bill, as it will be drawn, will be wide enough to cover the requirements of that Convention.

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