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Tuesday, 7 November 2000
Page: 19259


Senator HEFFERNAN (Parliamentary Secretary to Cabinet) (4:26 PM) —I table revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

COPYRIGHT AMENDMENT (MORAL RIGHTS) BILL 2000

This bill is yet another important landmark in the Government's on-going program of copyright reform.

Recently, we 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.

We have also seen the passage of the Copyright Amendment (Computer Programs) Act 1999, which enables our software developers to compete on an equal footing with their counterparts overseas.

And most recently, we have seen the passage of the Copyright Amendment (Digital Agenda) Act 2000, which will update Australia's copyright law to meet the challenges posed by digital technologies.

This bill 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The moral rights provisions were withdrawn from that bill in 1998 when it became apparent that there was a need for further consultation on two or three specific issues of concern to industry.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At the time the moral rights provisions were withdrawn, the Government gave an undertaking that they would be reintroduced after further consultations to resolve the disputed issues.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 with stakeholders have 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 long-standing 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 TV 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 consultations asked for legal recognition of an agreement between 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.

While this mechanism is available to those outside the film industry, it is merely facilitative and is in no way mandatory.

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 relating to changes in or the demolition of buildings.

The bill provides for the author or the person representing them to be given notice and granted access to the building before the building is changed or demolished.

A similar provision has been introduced in relation to the removal of moveable artistic works made for installation at the place where they are situated, being a place accessible to the public.

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 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.

Following Government amendments moved by the Attorney-General in the House of Representatives, this will continue to be the situation for literary, dramatic, musical and artistic works.

However, because of their different nature, the right of integrity of authorship in relation to films will only endure until the maker's death.

This position has the agreement of the film and television industry.

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 recommended 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 and television industry also proposed that the new rights only apply to films made after the rights come into force.

This has been reflected in the bill, as amended.

The right of integrity of authorship will apply to existing literary, dramatic, musical and artistic works, provided the author is alive at the time the bill comes into operation.

However, it will only apply in relation to films made after the commencement of the legislation.

Similarly, the right of attribution will apply in relation to films made after the commencement of the legislation and to existing works, but only in relation to attributable acts done after the commencement.

The right against false attribution will apply in relation to works and films made either before or after the commencement of the bill, but only in relation to acts of false attribution done after that commencement.

This bill is another initiative from a Government committed to reshaping copyright law for the 21st century and beyond.

The Government has addressed the main issues of controversy, and has worked hard to accommodate as far as possible the 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.

—————

BROADCASTING SERVICES AMENDMENT BILL 2000

The Broadcasting Services Amendment Bill 2000 seeks to establish a new broadcasting licence regime for international broadcasting services transmitted from Australia.

The bill will establish a new licensing category for international broadcasting services transmitted from Australia. The scheme is being introduced because there is currently no regime governing the content of international broadcasts from Australia. In certain circumstances, such broadcasts could be contrary to the national interest. The bill provides a means for the Minister for Foreign Affairs to determine whether a broadcast service is likely to be contrary to the national interest. In determining this, the Minister for Foreign Affairs will have regard in particular to the likely effect of the service on Australia's international relations.

Under the new licensing scheme, all international shortwave radio services transmitted from Australia, and all international satellite radio and television broadcasting services originating in and transmitted from Australia, will be required to obtain an international broadcasting licence from the ABA. The ABA will refer applications for licences to the Minister for Foreign Affairs, together with a report about whether the proposed service complies with the international broadcasting guidelines to be developed by the ABA. The Minister for Foreign Affairs is then required to make an assessment of whether the proposed service would be contrary to the national interest. The Minister for Foreign Affairs will also be empowered to direct the ABA to issue formal warnings to international broadcasting licensees, or suspend or cancel an international broadcasting licence if, in the opinion of the Minister for Foreign Affairs, the service is contrary to Australia's national interest.

Significant growth in international broadcasting is expected and Australia is likely to be a base for some services broadcasting to the region. This new regulatory regime will provide a licensing framework for international broadcasting services transmitted from Australia whilst safeguarding Australia's national interest.

The Government has considered the recommendations made by the Senate Foreign Affairs, Defence and Trade Legislation Committee in its report on the bill. The bill now provides for the international broadcasting guidelines to be a disallowable instrument. The bill also provides that if a person makes a request to the Minister for Foreign Affairs for a statement of reasons in relation to a decision by the Minister to direct the ABA not to allocate a licence, or to suspend or cancel a licence, the Minister must either provide a statement to that person or prepare a statement about the decision and cause a copy to be laid before each House of the Parliament. Provision has also been made for nominated broadcaster declarations, to allow providers of transmission services to hold international broadcasting licences on behalf of the content providers of international broadcasting services.

Debate (on motion by Senator Denman) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.