Senator BOLKUS (5:10 PM) —I cannot resist at the outset saying that not just the parliament but the whole country is waiting for this government to address the issue of Telstra, but it is taking a long and tortuous road to get to the legislation that we all seem to be waiting around for. In the meantime, we have before us the Copyright Amendment Bill 1997 . This bill contains some 11 schedules, which cover six important areas. I want to deal with each of these issues in turn.

The first issue that we have to address is the question of moral rights. The record shows quite clearly that the ALP supports the incorporation of moral rights, including the attribution and integrity of a work, into Australian domestic law. The concept of moral rights is derived from European civil law, and is designed to protect the reputation of the creator of a work. Moral rights are different from the copyright in a work. Copyright is essentially concerned with the right to exploit a work commercially through reproduction, publication, transmission or adaptation.

The philosophical basis of moral rights is, in part, a recognition that a work is an emanation of the author's personality such that an unauthorised distortion of that work would effect a slur on the personality of the author. However, moral rights do not apply to artistic works. For example, pursuant to this bill a literary work includes a textbook or even a computer program.

In introducing a moral rights regime, let us acknowledge the fact that moral rights do not only apply to artistic works. This bill represents an attempt to implement Australia's international legal obligations under the 1971 revision of the Berne convention on copyright. The bill also follows the 1998 report of the Copyright Law Review Committee that recommended the introduction of a moral rights regime in Australia. At present, I think most people accept that moral rights are imperfectly protected by a patchwork of domestic laws, including the law of contract and defamation, the Trade Practices Act, the fair trading acts, the tort of passing off and current part IX of the Copyright Act.

I do not propose to discuss in detail the provisions in respect of moral rights for the simple reason that last week the government withdrew its support for schedule 1 of the bill. I note that in doing so the government had the support of the Australian Democrats. In withdrawing schedule 1, the Attorney-General, Mr Williams, and the Minister for Communications, the Information Economy and the Arts, Senator Alston, gave a commitment that this aspect of the bill would be reintroduced before the end of this year, following consultation with interested parties to resolve differences on waiver of the rights. This delay is particularly concerning as the principal people to suffer from delay are those who are entitled to moral rights, and they will not have a regime in place to protect their interests.

The principal difficulty in the negotiations has been the inability, I believe, within some parts of industry and screenwriters to agree on whether there should be an up-front waiver for moral rights. The Labor Party is of the view that a regime of moral rights which incorporates an up-front waiver of moral rights has the potential to see those rights become meaningless. They could be treated no differently from any other economic rights and traded away very quickly. This is because the up-front waiver concept would allow the economically dominant partner in the creative process, principally but not exclusively the producer, to force directors and all screenwriters to sign away their moral rights on a work. Such a provision, we believe, is inconsistent with a philosophical notion of moral rights.

However, in saying so, it has to be said that the Labor Party has been mindful that some in industry have claimed that the imposition of a moral rights regime which does not provide an up-front waiver concept could result in an effective freeze on investment in the Australian film industry. Of course, no-one would want to see that. That is not a desirable outcome. However, we do note that other nations continue to have vibrant film industries despite the existence of rigid moral rights regimes in those countries.

On behalf of the opposition, I once again put down our opposition to an up-front waiver provision. However, what we have said is that we would support the conduct of a review by the Copyright Law Review Committee into the effect of a moral rights regime on the Australian film industry, with such a review to be completed within 18 months of the entry into force of this legislation.

On the other hand, the government has tended to support those within the industry calling for an up-front waiver. To some extent, I do not suppose that that is all that surprising. I also suspect that one reason why schedule 1 of the bill has been withdrawn is that the government is concerned that it may lose a vote on these amendments.

So long after the debate has started in this area, so long after these issues were put up for consideration, we have a government once again not being able to take a decision and not being able to assert a position in this parliament. It is the same lack of leadership that we find so often in the national debate at the moment. So long after discussions, debates, parliamentary committees and so on, this government is basically abdicating its leadership role.

As we can see from international experience, moral rights are not something to be feared. We recognise them, and the parliament should recognise that the creative talents of Australian film makers should be celebrated and respected through a strong moral rights regime. Our film industry is amongst the best in the world. It is built on the back of the extraordinary range of creative talents of our writers, directors and producers. It is in no-one's interests for these people not to be given the respect they deserve.

The second main area relates to performing artists, musical composers and makers of cinematographic films. We believe there is a strong case for recognising performing rights for these people as the authors and makers of films. In particular, a rather powerful submission was put to the Senate Legal and Constitutional Committee by the Media, Entertainment and Arts Alliance as to why a performing artist should be given moral rights in relation to their work. The Labor members of that committee, together with the Australian Democrats member, stated that they saw considerable merit in the proposal. Once again we recognised international trends, and once again we proposed that this was a proposal that needed to be progressed. However, we did believe that insufficient consultation had occurred to allow for the recognition of the rights of performing artists and music composers at this time. So we call on the government—in fact, we called on the government eight months ago—to have this matter examined through the Copyright Law Review Committee. Had that examination been commenced then, we could very well have been in a position to have made a decision in this area during this debate. Unfortunately, we are not. It is an issue that we will be taking up during the committee stage.

I now wish to turn to schedule 2 of the bill, which relates to employed journalists' copyright. I am glad to say that, probably because of intervention by Labor and Democrat senators during the Senate committee's consideration, this issue has produced a highly productive outcome. In the Senate committee report, we noted that the implementation of the schedule at that time would have resulted in the loss of valuable economic rights by journalists employed by some proprietors without compensation and a corresponding windfall gain by some publishers who would acquire those rights. This was the principal bone of contention between the proprietors and the Media, Entertainment and Arts Alliance. However, following the Senate committee's report, further negotiations between the parties have occurred, in particular with Australian Consolidated Press, the major publisher, which was yet to reach an enterprise bargain with employed journalists for the transfer of copyright. That was at that time. I am informed that an agreement has been concluded in recent days. As a consequence, the MEAA has written to the Combined Newspaper and Magazine Copyright Committee withdrawing its objections to these amendments. I now table a copy of the relevant letter.

Needless to say, this was the Labor Party's preferred way of dealing with this issue. We are pleased that a resolution has been achieved. I place on record our appreciation to all the parties concerned for the constructive way in which this issue has been dealt with.

Another issue that has arisen through this legislation is the question of media monitoring organisations. Once again, Labor and Democrat members of the Senate committee also recognised that these provisions may have had an unintended effect of causing considerable commercial hardship to some media monitoring companies. These companies perceive that the grant of copyright over the digital transmission of media services to the newspaper proprietors may place them in an uneconomic bargaining position. These rights over digital transmission include the right to transmit newspaper clippings electronically by fax, electronic mail or other on-line delivery mechanisms. As a result, the Australian Print Monitors organisation sought a statutory licence for the digital transmission of this copyright material. Such licence is subject to fair and equitable payment to the copyright owner on a basis determined by the Copyright Tribunal. As noted by Ms Catherine Hawkins, a senior government lawyer in the Intellectual Property Branch of the Commonwealth Attorney-General's Department, such a statutory licence scheme would probably breach Australia's international legal obligations pursuant to the TRIPS agreement. Accordingly, the establishment of such a scheme as suggested by the organisation is not supportable. Mr Creswell, the Assistant Secretary of the Intellectual Property Branch, also noted that making such a scheme subject to a licence fee determination by the Copyright Tribunal as once again suggested by the Print Monitors organisation would breach chapter 3 of the constitution by giving the tribunal the power to determine legal rights and obligations. Accordingly, we have found this approach not to be supportable either.

However, the principal concern of the Print Monitors organisation is that, having been given control over the digital transmission rights, newspaper proprietors will use their market power to unfairly control the price of any licensing regime, therefore making their industry uneconomic. It is the view of the Labor Party that such abuses of market power are more appropriately addressed through the provisions of the Trade Practices Act. It was suggested in evidence that the inclusion in the act of the proposed section 35(4) may prevent the operation of the Trade Practices Act in this area. However, the advice of AGs was that part IV of the Trade Practices Act already applied. Given that all parties now agree that part IV of the act should apply to these provisions, we are proposing an amendment that will put this matter beyond doubt. On the basis of the expressed support, we anticipate that that amendment should not be objectionable to any party.

I now move to the 15 per cent provision—the new section 35A. Labor and Democrats senators on the committee noted that substantial evidence was received as to the arbitrary nature of the government's decision that a right of restraint should be put in place preventing the photocopying of more than 15 per cent of a publication. We noted that this provision had the potential to be unworkable for businesses such as print monitoring companies—businesses which provide a useful commercial service to government, business and community organisations. Accordingly, we support the recommendation of government senators that the proposed new section 35A in schedule 2 of the bill should be deleted. I am pleased to see that the government, in its amendments, has accepted this recommendation.

An issue which has become quite controversial over recent weeks has been parallel imports and copyright in accessories. Parallel imports are goods manufactured outside this jurisdiction by or under the authority of the owner of an industrial property right relating to these goods but imported by someone other than the authorised importer or distributor. Sections 37, 38, 102 and 103 of the Copyright Act provide that the importation of and subsequent dealing with a label or packaging without the consent of the holder of copyright and an artwork embodied on it infringes copyright.

Section 37 provides that a person infringes copyright in a literary, dramatic, musical or artistic work if they import it without the copyright holder's consent. Section 102 makes a similar provision in relation to a cinematographic film or sound recording. Section 38 provides that a person infringes copyright in a literary, dramatic, artistic or musical work if they deal with that work when the work was imported without the copyright holder's consent. Section 135 of the Copyright Act provides the enforcement mechanism for breaches of these provisions. In essence, that mechanism allows for a notice of objection to be lodged with the Australian Customs Service, which is then empowered to seize the goods, giving the copyright holder time within which to lodge an action.

Schedule 3 of the bill before us proposes amendments designed to prevent importers from blocking parallel imports on the basis of copyright in accessory items which are peripheral to the substantive goods. Schedule 3 also inserts the definition of a `non-infringing accessory'. These are accessories made in a World Trade Organisation country with the authorisation of the owner of the copyright in any work embodied in that accessory.

The government's justification for these amendments in schedule 3 is that the use of copyright to ban parallel imports is `an improper restraint of trade'. Evidence before the committee argued that the current provisions of the bill support monopolistic prac tices, would prevent the operation of competition and would have a deleterious impact on free trade. Given that they have been in place for quite some time now, I find the wholesale way in which the government is putting such an argument to us a little difficult to sustain.

As well, the government has argued that the provisions of the Copyright Act should only be used to prevent breaches of copyright and not to address issues such as product safety. Five principal arguments have been levied against this view. Firstly, there has been concern as to inferior quality items being imported, thereby damaging a product's reputation. Secondly, it is argued that parallel imported products can get a free ride in terms of advertising. Thirdly, opponents of this measure argue that Australian jobs will be put at risk. Fourthly, it was argued that profitability of companies, particularly those which have made long-term investment plans in recent years, could be affected. Finally, it was argued—and with some strength—that the economic assessment of this proposal and the economic case in support of it has not been adequately assessed.

There is also concern that the government had not consulted adequately with industry groups or conducted the adequate economic modelling of the impact of the legislation. We note, for instance, that we are still receiving submissions from affected companies and industry groups which were not made aware of the government's proposals in this area.

Our view is that, before we embark upon this particular measure, there should in fact be a thorough review of this issue, and that that can be done as a matter of priority. This inquiry should be sensitive to the competing needs of the different industry sectors and to the social costs involved with any job losses that may flow from the implementation of such a decision. In a sense, one could say there has been time during the deliberations of this measure for the government to have done that, but they have not. Industry has done this; they have produced some modelling. But, in the absence of further modelling from the non-industry side of the debate, it is important for us to hesitate and pause and, maybe, try to force government to ensure that a full assessment of the impact of this measure is made.

The Labor members of the committee made it clear that we could not support the inclusion of schedule 3 of the bill at this time. We will move amendments to ensure that this measure, as proposed by the government, is not implemented. There are other amendments in the bill. Labor members support schedules 4 to 11, subject to the recommendations of the majority Senate committee report. I note that the government is intending to accept these matters as well.

I want to raise two issues that are not covered in the bill. Section 135ZM, photocopying of visual material by educational institutions, needs to be addressed. I gather that, once again, after pressure through the committee, by Labor, Democrats and government senators, the government is now going to be moving an amendment to that particular provision. It is an amendment which both VI$COPY and the Labor Party will support. There is also a measure in respect of copyright in commissioned photographs. We will be suggesting amendments to the legislation to ensure that we can get a balanced outcome for copyright in this area.

In many respects, this is a highly technical debate—deliberations of the committee over recent months have been evidence of that—but it is also a debate that does have impact across many industry sectors. The technical nature of the debate may conceal the important impact it does have on a whole range of Australian industries. As such, the parliament has spent quite some time deliberating on the measure. As I said earlier in the discussion, amendments will be proposed by us and by the government. Some decisions have not been taken, and I think there is regret in respect of that. As I said at the start, it is a debate that, in many ways, we were expecting to happen after priority had been given to the deliberations on the Telstra bill. It has not, but we are ready to go ahead with it.

In closing, I seek leave to do what I indicated I would do earlier, and that is to table the letter from Chris Warren, Joint Federal Secretary of MEAA to Mr Gary Evans, chair of the Combined Newspaper and Magazine Copyright Committee.

Leave granted.