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Wednesday, 26 March 2014
Page: 3135


Mr DUTTON (DicksonMinister for Health and Minister for Sport) (09:14): I move:

That this bill be now read a second time.

The purpose of the bill is to protect major sporting event sponsorship and licensing revenue from being undermined by unauthorised commercial use of event indicia and images for the following events:

Asian Football Confederation (AFC) Asian Cup 2015;

International Cricket Council (ICC) Cricket World Cup 2015; and

Gold Coast 2018 Commonwealth Games.

This bill is consistent with the approach the Australian government took when it legislated to protect the indicia and images for the Sydney Olympics and Melbourne Commonwealth Games through the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Sydney Games Act) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Melbourne 2006 Act) respectively.

Australia has a reputation for, and track record in, hosting highly successful major sporting events, with the Australian government playing a critical role in facilitating the appropriate environment that makes such success possible.

The three events that are the focus of this bill will, between them, see over 60 countries participating on Australian shores with a much broader global reach due to their profile and nature. They represent the pinnacle of competition and include some of the world's best football players, cricketers and athletes.

For Australia, the profiles of these events present a great opportunity to showcase our country from a tourism, trade and event delivery perspective. For event owners and organisers this profile provides the opportunity to showcase their sports, build a legacy and attract commercial partners that will invest in the event and their sport into the future.

This latter point is particularly important as event owners and organisers rely heavily on revenue gleaned from television rights, ticket sales, sponsorship and licensing to ensure their event can be delivered and continues to be an attractive and viable financial proposition to future host countries.

It is this profile and these commercial realities that necessitate the sorts of protections that are proposed in this bill. Major events have long been targets of those that would seek to create an impression of association with, or sponsorship of, the event in order to achieve commercial gain without having purchased the rights to claim that association. This act, known as 'ambush marketing by association', has the capacity to diminish the value of sponsorship, reduce the incentive for organisations to enter into commercial arrangements with events, and reduce overall event revenue.

The bill will protect the use of a range of words and expressions associated with each major sporting event such as 'Asian Cup 2015', 'Cricket World Cup 2015' and 'Gold Coast 2018 Commonwealth Games', from ambush marketing and unlicensed commercial use in the lead-up to and during each major sporting event. Variants of the event names and known abbreviations will also be protected such as, 'Asian Cup', 'CWC 2015' and 'GC2018'.

While it is important to protect sponsors from ambush marketing, the rights of the community to freedom of expression must also be respected, particularly in relation to words that have passed into common usage. A pragmatic approach has been taken with generic words, and references such as 'cricket', 'football' and 'Commonwealth' are of course excluded from any list.

In addition to protecting particular words, numbers and expressions, the bill also provides protection to certain images that suggest, or are likely to suggest, a connection with these events. The manner in which these indicia and images will be defined and protected by the bill is consistent with the approach used under the Sydney Games Act and Melbourne 2006 Act.

An important feature of this bill is a 'commercial benefit' test that applies to the use of material. Restrictions will apply only to unlicensed commercial use of the protected indicia and images. The aim is to prevent an unauthorised user from applying the protected indicia and images to suggest a formal association with the events.

The Australian government supports state, territory and local governments engaging their local communities, including the local business community, in the festival and city dressing that will surround these events which may involve the use of indicia and images.

The bill also recognises arrangements that may already be in place between host jurisdictions and the respective organising committees in relation to the use of indicia and images. The intention is for such arrangements to continue and not be affected by the proposed legislation. Further, it is intended to be complementary to existing or proposed legislation in states and territories that may be put in place in relation to these events.

The bill also contains a number of exceptions allowing:

for the continued operation of rights and liabilities under the Trade Marks Act 1995, Design Act 2003 and Copyright Act 1968;

the provision of information, criticism and review of the events, such as in newspapers, magazines and broadcasts; and

use for the reasonable needs of sporting bodies in relation to fundraising and promotion.

In line with the Australian government's deregulation agenda, it is made clear in this bill that the legislation is not intended to increase the burden on business or affect their everyday operations. It is recognised that some individuals and corporations, such as the event owners and sponsors, already use the indicia prescribed in the legislation in conjunction with their goods and services. The bill fully protects the rights of the existing holders to use indicia to carry out their business functions.

Just as the Melbourne 2006 Act permitted the use of Melbourne 2006 indicia or images solely for the purposes of providing information, or for the purposes of criticism or review, so too does this bill. The bill therefore permits the provision of information for the purposes of reporting news and presentation of current affairs, the factual description of goods or services provided by a business (such as stating that accommodation is available at a hotel that is located near an event venue), or factual statements by an athlete to promote their own achievements.

The government also recognises that the reasonable needs of sporting bodies in relation to fundraising for and promotion of their preparation of athletes and teams for these events should be allowed to continue. Those reasonable needs could involve the use of the indicia or images for the purposes of providing factual information. The bill is not intended to affect this type of use.

Another feature of the bill establishes a register to outline the authorised users of each event's indicia and images. These registers will be published and provide consumers with confidence that goods and services purchased are official. Authorising bodies, the owners of the intellectual property, are responsible for keeping account of authorised persons and entering and updating relevant details into the register. A person whose name appears on the register constitutes an authorised person of indicia and images for the event specified.

Similar to provisions contained in the Melbourne 2006 act, this bill also provides various remedies to the authorising bodies and authorised persons to enforce their rights in relation to the protected indicia and images. It will be the authorising body or an authorised person who may bring an action against an unauthorised user, this will not be the responsibility of the government. The remedies available under the bill include injunctions, damages and corrective advertising. The courts also have the discretion, of course, to provide remedies under any law (either state, territory or Commonwealth) and most notably, under the Trade Marks Act 1995, the Copyright Act 1968 and the Competition and Consumer Act 2010 in relation to engaging in conduct that is misleading or deceptive.

The bill also includes appropriate measures to limit the possibility of the importation of goods which seek to ambush each event's marketing. The Australian Customs and Border Protection Service (Customs) will be able to carry out the measures of this legislation relating to the monitoring of imported goods at Australia's borders. This bill also allows Customs to perform functions similar to those it undertook at the time of the Melbourne 2006 Commonwealth Games by seizing goods marked with unauthorised indicia and images at Australia's borders. The border protection component of this bill is consistent with the Trade Marks Act, and the Copyright Act as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 to ensure powers for Customs officers are aligned in relation to the seizure of unauthorised goods at the border, thus avoiding confusion for business, consumers and those administering the measures.

Each schedule of the bill will cease to have effect within one year after the completion of each major sporting event as prescribed in the bill. I commend the bill to the House.

Debate adjourned.