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US Free Trade Agreement Implementation Bill 2004

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2002-2003-2004

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of

the Hon Mark Vaile MP, Minister for Trade)

 

 

 

 

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

 

 

 

CONTENTS

 

 

 

General Outline                                                                                                           3

 

            Financial Impact Statement                                                                            7

 

 

 

 

Notes on Clauses                                                                                                       

 

            Schedule 1 - Customs                                                                                                8

 

            Schedule 2 - Agriculture and Veterinary Chemicals                                      30

 

            Schedule 3 - Australian Geographic Indications for Wine                            36

 

            Schedule 4 - Life Insurance                                                                           39

 

            Schedule 5 - Foreign Acquisitions and Takovers                                           42

 

            Schedule 6 - Commonwealth Authorities and Companies                            49

 

            Schedule 7 - Therapeutic Goods                                                                    50

 

            Schedule 8 - Patents                                                                                       54

 

            Schedule 9 - Copyright                                                                                  55

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

OUTLINE

 

The US Free Trade Agreement Implementation Bill 2004 consists of nine schedules that amend relevant Australian legislation to fulfil Australia’s obligations under the Free Trade Agreement between Australia and the United States.

 

Commencement

 

Unless specifically noted, the provisions of the Bill will commence on the later of 1 January 2005 or the day on which the Australia-United States Free Trade A greement comes into force.  These provisions will not commence if the Agreement does not come into force.

 

Schedule 1 - Customs

 

Schedule One amends the Customs Act 1901 to incorporate the rules for determining whether goods originate in the United States, and are therefore eligible for preferential duty rates.  Schedule 1 also provides the Australian Customs Service with the power to conduct verifications of Australian exporters in order to ensure that the goods that they export to the United States have been produced in Australia. 

 

Australian business and the Australian Customs Service have endorsed the “Change in Tariff Classification” (CTC) criteria for the rules of origin as less costly to administer.  Where a pure CTC rule was not sufficient for Australian industry (for example in the automotive industry), it has been combined with a regional value content.

 

Schedule 2 - Agriculture and Veterinary Chemicals

 

Data Protection is a well-established mechanism in the chemical regulatory regimes of most developed countries, including Australia.  Data protection provides protection to certain information provided by a person as part of an application to gain the required approvals and registrations to enable a product to enter the domestic market.  Protection is generally provided in the form of limitations upon the use of certain information in particular circumstances, usually relating to the approval or registration of competing products.

 

The existing data protection regime applies to decisions relating to the approval of an active constituent.  This existing regime has proven to be inadequate in encouraging innovation in the Australian market and ensuring domestic access to new technologies that are being developed and used in competing overseas markets.  The current regime is being exploited by competitors who are spring boarding off the investment of primary innovators without any form of compensation to the innovator because the existing data protection regime does not apply to decisions relating to chemical products or their labels.

In introducing a new date protection regime, Schedule Two establishes measures to protect the investment of innovators against unfair commercial use by competitors.  These measures take the form of limits on the use by the National Registration Authority for Agricultural and Veterinary Chemicals (NRA) of certain information provided to the NRA in considering any subsequent application by a competitor .

 

The new regime also introduces measures to stimulate innovation in information in support of chemical uses, particularly in minor agricultural use industries such as horticulture, viticulture and aquaculture.

 

The reforms introduce certain measures to increase the transparency of decision-making within the domestic regulatory regime for agricultural and veterinary chemicals and to stimulate access to protected information by potential competitors under reasonable market conditions.

 

The terms of the Australia-United States Free Trade Agreement (AUSFTA) are consistent with a suite of proposed reforms to the existing data protection regime that have already been agreed by all State and Territory Governments.   In particular, 10 years protection is provided to certain information submitted in support of a marketing approval by a combination of a base period of protection with a capacity to extend to 11 years should certain conditions that assist innovation in minor uses of chemicals in the agricultural sector be satisfied.

 

Schedule 3 - Australian Geographic Indications for Wine

 

This schedule amends the Australian Wine and Brandy Corporation Act 1980 to provide specific procedures for the owner of a trademark to object to the determination of an Australian geographical indication (GI) on the basis of pre-existing trademark rights and procedures for the cancellation of an Australian GI. 

 

Schedule 4 - Life Insurance

 

This schedule amends the Life Insurance Act 1995 to allow foreign life insurance companies to establish branches in Australia for the purpose of carrying out life insurance business in Australia.  Currently only entities incorporated in Australia are able to conduct life insurance business in Australia.  For an entity to establish a branch in Australia for the purposes of carrying on life insurance business, it must be incorporated in a foreign country, be authorised to carry on life insurance business in that foreign country, and meet the conditions contained in the regulations to the Life Insurance Act 1995 .  These regulations may include a list of countries, determined by the Government, in which a foreign life insurer must be incorporated and authorised to be eligible to establish a branch in Australia.

 

 

 

 

Schedule 5 - Foreign Acquisitions and Takovers

 

The Foreign Acquisitions and Takeovers Act 1975 (FATA) is amended to enable:

·          exemption from the Act for those acquisitions of interests in financial sector companies, as defined by the Financial Sector (Shareholdings) Act 1998 (FSSA), also covered by powers under the FSSA;

·          introduction of a screening threshold of $800m, indexed annually to the GDP implicit price deflator, for acquisitions of interests in Australian businesses in non-sensitive sectors (see below);

·          introduction of a screening threshold of $50m, indexed annually to the GDP implicit price deflator, for acquisitions of interests in Australian businesses in defined sensitive sectors and by the United States Government.  The sensitive sectors will include:

-         media;

-         telecommunications;

-         transport, including airports, port facilities, rail infrastructure, international and domestic aviation and shipping services provided either within, or to and from, Australia;

-         the supply of training or human resources or the development, manufacture or supply of military goods, equipment or technology to the Australian or other defence forces;

-         the development, manufacture or supply of goods, equipment or technologies able to be used for a military purpose;

-         the development, manufacture or supply of, or provision of services relating to, encryption and security technologies and communications systems; and

-         the extraction of (or holding of rights to extract) uranium or plutonium or the operation of nuclear facilities;

-         indexation of the $50 million screening threshold for United States government investments.

 

Schedule 6 - Commonwealth Authorities and Companies

 

This schedule amends the Commonwealth Authorities and Companies Act 1997 to empower the Finance Minister to issue directions to the directors of Commonwealth authorities and wholly-owned Commonwealth companies regarding procurement.  The directions may apply, adopt or incorporate some or all of the Commonwealth Procurement Guidelines, issued by the Finance Minister under the Financial Management and Accountability Regulations 1997

 

Schedule 7 - Therapeutic Goods

 

This schedule amends the Therapeutic Goods Act 1989 , primarily to provide that an applicant seeking to include therapeutic goods in the Australian Register of Therapeutic Goods must provide one of two certificates.  Either, they must certify that the applicant does not propose to market those therapeutic goods in a way or in circumstances that would involve an infringement of a patent, or they may certify that the applicant proposes to market the therapeutic good before the expiry of the patent for such goods and that the applicant has notified the patentee about its application to include goods in the Register. 

 

Schedule 8 - Patents

 

Under the terms of the AUSFTA, the grounds on which a patent may be revoked are restricted to grounds on which the grant of the patent could have been refused.  Subsection 138 (3) of the Patents Act 1990 sets out the grounds on which a patent can be revoked.  Presently they are broader than the grounds on which the grant of a patent can be opposed.  This schedule extends the grounds on which the grant of a patent can be opposed to include the additional grounds that an invention is not useful or was secretly used.  The amendments also remove a ground of revocation (non-compliance with a condition of a patent) which is no longer applicable to granted patents.  These amendments comply with the obligations under AUSFTA while protecting the existing grounds for revocation under Australian law.

 

Schedule 9 - Copyright

 

Schedule Nine introduces a range of amendments to the Copyright Act 1968 (Copyright Act) to give effect to Australia’s obligations under Chapter 17 (Intellectual Property Rights) of the Australia - United States Free Trade Agreement (‘the Agreement’).  Certain amendments are also made to allow Australia to accede to the World Intellectual Property Organisation (WIPO) Copyright Treaty 1996 (WCT) and the WIPO Performances and Phonograms Treaty 1996 (WPPT).

 

The amendments to the Copyright Act cover the following areas:

 

·          New rights - both economic and moral - for performers in sound recordings;

 

·          Extension of the term of protection for most copyright material by 20 years;

 

·          Alignment of the term of protection of photographs with other artistic works;

 

·          Implementation of a scheme for limitation of remedies available against Carriage Service Providers for copyright infringement in relation to specified activities carried out on their systems and networks, providing certain conditions are satisfied;

 

·          Wider criminal provisions, including for copyright infringement that was undertaken for commercial advantage or financial gain, and significant infringement on a commercial scale;

 

·          New provisions in relation to the unauthorised receipt and use or distribution of encoded program carrying signals;

 

·          Broader protection for electronic rights management information; and

 

·          Protection against a wider range of unauthorised reproductions.

 

In addition to the amendments in the Schedules, corresponding regulations will be made to implement some aspects of the limitation of remedies scheme for Carriage Service Providers and for the purposes of Australia’s accession to the WCT and WPPT as required by the Agreement.

 

 

Financial impact statement

 

Independent modelling by the Centre for International Economics suggests the most probable effect of the Australia-United States Free Trade Agreement on Australia’s real gross domestic product (GDP) is an increase of $6.1 billion per year, or nearly 0.7 per cent above what might otherwise be.

The most probable effect on macroeconomic welfare after a decade, as represented by real gross national product (GNP), is an increase of $5.6 billion per year above what it might otherwise be.  Real GNP is a better measure of welfare gain to Australians than real GDP since investment is liberalised as part of the Agreement and additional payments to foreigners are required to service the extra foreign investment.  GNP excludes payments to non-residents.

The Treasury has estimated that the financial cost of the Agreement to the Australian Government will be around $190 million in 2004-05, $400 million in 2005-06, $420 million in 2006-07 and $450 million in 2007-08.  This estimate is based on the expected loss of tariff revenue from imports from the US and assumes that the Agreement enters into force on 1 January 2005.  The estimates do not take account of the scope for additional lost tariff revenue that could arise if imports from the US displace imports from other countries.

These legislative amendments may require some changes to administrative processes and systems.  It is expected that, where such changes require additional expenditure, the majority of this expenditure will be absorbed within current appropriations or recovered through existing cost-recovery mechanisms.



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

CLAUSES

 

Commencement

 

Each provision of the Bill will commence on the later of 1 January 2005 or the day on which the Australia-United States Free Trade Agreement done at Washington on 18 May 2004 comes into force for Australia.  However the provisions do not commence if the Agreement does not come into force.

 

 

Schedule 1 - Customs

 

Part 1 - US Originating Goods

 

Customs Act 1901

 

Item 1 After Division 1B of Part VIII

 

1.             This item amends the Customs Act 1901 (the Customs Act) by inserting new Division 1C into Part VIII.  New Division 1C is headed US originating goods and sets out the rules for determining whether goods are US originating goods and therefore eligible for a preferential rate of customs duty under the Customs Tariff Act 1995 (the Customs Tariff Act).  These rules are being inserted to give effect to the Australia-United States Free Trade Agreement (the Agreement), in particular Chapters 4 and 5 of the Agreement.

 

2.             New Division 1C contains eight subdivisions which are set out below.

 

Subdivision A - Preliminary

 

3.             Subdivision A contains a simplified outline of Division 1C and contains the interpretation provision for Division 1C.

 

Section 153Y  Simplified outline

 

4.             New section 153Y sets out a simplified outline of each of the subdivisions B to H of new Division 1C.

 

New section 153YA  Interpretation

 

5.             New subsection 153YA(1) sets out several new definitions for the purposes of Division 1C.  These definitions are:

 

·                Agreement which means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.;

 

·                Australian originating goods which means goods that are Australian originating goods under a law of the US that implements the Agreement.  In limited circumstances, such goods are also US originating goods (see definition of originating materials);

 

·                Convention which means the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983;

 

·                customs value which, in relation to goods, has the meaning set out in section 159 of the Customs Act.  Section 159 sets out the various methods for determining the customs value of goods;

 

·                fuel which has its ordinary meaning.  This ordinary meaning includes electricity which would not otherwise by covered by the definition of “goods” in section 4 of the Customs Act;

 

·                Harmonized System which means the Harmonized Commodity Description and Coding System (as in force from time to time) that is established by or under the Convention.

 

         The Harmonized System is the worldwide classification system that has been adopted by all countries that are members of the World Customs Organization.  In Australia, the Harmonized System has been adopted in the Customs Tariff Act.  The Harmonized System organises goods according to the degree of manufacture, and assigns classification numbers to all goods.  It is arranged into 97 chapters covering all goods, and each chapter is divided into headings, subheadings, and tariff classifications.  Under the Harmonized System, the chapter, heading, and subheading numbers for any good are identical in any country using the Harmonized System.  However, the final two digits of the tariff classification are not harmonised - each importing country individually assigns them.

 

·                Harmonized US Tariff Schedule means the Harmonized Tariff Schedule of the United States (as in force from time to time).  This Tariff Schedule is the US equivalent of the Customs Tariff Act;

 

·                indirect materials which means :

 

a)       goods used in the production, testing or inspection of other goods, but that are not physically incorporated in the other goods; or

 

b)       goods used in the operation or maintenance of buildings or equipment associated with the production of other goods;

 

including:

 

c)       fuel;

 

d)      tools, dies and moulds;

 

e)       lubricants, greases, compounding materials and other similar goods;

 

f)        gloves, glasses, footwear, clothing, safety equipment and supplies for any of these things;

 

g)       catalysts and solvents.

 

Under the definition of originating materials (below), indirect materials are originating materials without having to otherwise satisfy the rules relating to US originating goods;

 

·                Interpretation Rules which means the General Rules for the Interpretation of the Harmonized System provided for by the Convention;

 

·                national of the US, which has the meaning given by Annex 1-A to Chapter 1 of the Agreement;

 

·                non-originating materials which means goods that are not originating materials;

 

·                originating materials which means ;

 

h)       goods that are used in the production of other goods and that are US originating goods.  In some circumstances, in order to determine whether goods that are imported into Australia are US originating goods, and therefore eligible for a preferential rate of customs duty, it may be necessary to have regard to the goods from which the final goods are produced (see Subdivisions C, D and E).  These goods which are used to produce other goods can be originating or non-originating.

 

Originating materials are those goods that are used to produce other goods and that are also US originating goods, which means that in their own right, they satisfy the requirements of new Division 1C.  Non-originating materials are goods that are not originating materials because they do not satisfy the requirements on Division 1C in their own right;

 

i)         goods that are used in the production of other goods and that are Australian originating goods.  If goods used in the production of other goods are Australian originating goods under a law of the US that implements the Agreement, they are also originating materials for the purposes of new Division 1C;

 

j)         indirect materials (as discussed above);

 

·                produce which means grow , raise, mine, harvest, fish, trap, hunt, manufacture, process, assemble, or disassemble.  Producer and production have corresponding meanings;

 

·                recovered goods which means materials in the form of individual parts that:

 

k)       have resulted from the complete disassembly of goods which have passed their useful life or which are no longer useable due to defects; and

 

l)         have been cleaned, inspected or tested (as necessary) to bring them into reliableworking condition.

 

·                remanufactured goods which means goods that:

 

m)     are produced entirely in the US; and

 

n)       are classified to Chapters 84, 85 or 87 (other than headings 8418, 8516 or 8701 to 8706) or to heading 9026, 9031 or 9032 of Chapter 90 of the Harmonized System or any other tariff classification that is prescribed; and

 

o)       are entirely or partially comprised of recovered goods; and

 

p)       have a similar useful life and meet the same performance standards as new goods that are so classified and that are not comprised of any recovered goods; and

 

q)       have a producer’s warranty similar to such new goods.

 

·                Schedule 1 tariff table which means the table in Schedule 1 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004 (the FTA Regulations).  The FTA Regulations are being made under the Customs Act and will incorporate in Schedules 1 and 2 the product specific rules relating to change in tariff classification, regional value content and other rules for the purpose of determining whether goods are US originating goods.  The table in Schedule 1 to the FTA Regulations will incorporate Annex 5A of the Agreement;

 

·                Schedule 2 tariff table which means the table in Schedule 2 to the Customs (Australia-United States Free Trade Agreement) Regulations 2004 .  The table in Schedule 2 to the FTA Regulations will incorporate Annex 4A of the Agreement;

 

·                US which means the United States of America;

 

·                used which means used and consumed in the production of goods;

 

·                US originating goods which means goods that, under this Division (i.e. Division 1C) are US originating goods.

 

1.             New subsection 153YA(2) provides that the value of goods for the purposes of Division 1C is to be worked out in accordance with the regulations and that the regulations may prescribe different valuation rules for different kinds of goods.  The value of goods is relevant, for example, in determining whether goods satisfy the de minimis requirement in s.153YE(2) .  The value of goods is to be distinguished from the customs value of goods which is to be worked out under section 159 of the Customs Act.

 

2.             New subsection 153YA(3) provides that in specifying tariff classifications for the purposes of Division 1C, the regulations may refer to the Harmonized System or the Harmonized US Tariff Schedule.  Most product specific rules in Annexes 4A and 5A of the Agreement refer to tariff classifications of the Harmonized System.  However, a small number of the product specific rules in the Agreement refer to tariff classification of the Harmonized US Tariff Schedule.  Therefore Schedules 1 and 2 to the FTA Regulations will need refer to these two systems of tariff classifications.

 

3.             New subsection 153YA(4) provides that subsection 4(3A) of the Customs Act does not apply for the purposes of Division 1C.  Subsection 4(3A) provides that reference in the Customs Act to the tariff classification of goods is a reference to Schedule 3 of the Customs Tariff Act, which is not the case in new Division 1C.

 

4.             New subsection 153YA(5) provides that for the purposes of Division 1C, the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing in force or existing from time to time.  This provision will override section 49A of the Acts Interpretation Act 1901 in order to enable to FTA Regulations to refer to the general accounting principles of the US for the purposes of the regional value content calculations.

 

Subdivision B - Goods wholly obtained or produced entirely in the US

 

5.             Subdivision B sets out the rules in relation to goods that are wholly obtained or produced entirely in the US.

 

Section 153YB Goods wholly obtained or produced entirely in the US

 

6.             New subsection 153YB(1) provides that goods are US originating goods if they are wholly obtained or produced entirely in the US.

 

7.             New subsection 153YB(2) provides that goods are wholly obtained or produced entirely in the US , if and only if, the goods are:

 

a)       minerals extracted in the US; or

 

b)       plants grown in the US, or in the US and Australia, or products obtained from such plants (for example fruit from fruit trees); or

 

c)       live animals born and raised in the US, or in the US and Australia, or products obtained from such animals (for example milk or eggs); or

 

d)      goods obtained from hunting, trapping, fishing or aquaculture conducted in the US; or

 

e)       fish, shellfish or other marine life taken from the sea by ships registered or recorded in the US and flying the flag of the US; or

 

f)        goods produced exclusively from goods referred to in paragraph (e) on board factory ships registered or recorded in the US and flying the flag of the US; or

 

g)       goods taken from the seabed, or beneath the seabed, outside the territorial waters of the US by the US or a national of the US, but only if the US has the right to exploit that part of the seabed; or

 

h)       goods taken from outer space by the US or a national of the US; or

 

i)         waste and scrap that has either:

 

(i)                  been derived from production operations in the US; or

 

(ii)        been derived from used goods that are collected in the US and that are fit only for the recovery of raw materials; or

 

a)       recovered goods derived in the US and used in the US in the production of remanufactured goods; or

 

b)       goods produced entirely in the US exclusively from goods referred to in paragraphs (a) to (i) or from their derivatives.  For example, a ring that comprises a precious stone and gold that has been extracted entirely in the US will be a US originating good or pork sausages that are made from pigs born and raised in the US and cereals and spices grown in the US will be US originating goods or ice cream that is made from milk from a cow in the US and other US ingredients.

 

Subdivision C - Goods produced entirely in the US or in the US and Australia exclusively from originating materials

 

1.             Subdivision C sets out the rule in relation to goods that are produced entirely in the US or in the US and Australia exclusively from originating materials.

 

Section 153YC  Goods produced entirely in the US or in the US and Australia exclusively from originating materials

 

2.             New section 153YC provides that goods are US originating goods if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials.

 

3.             This section replicates the effect of paragraph 153YB(2)(k) to the extent that if goods are produced entirely in the US exclusively from goods referred to in paragraphs 153YB(2)(a) to (i), they are also being produced exclusively from goods referred to in paragraph (a) of the definition of originating materials (as goods in paragraphs (a) to (i) are US originating goods).

 

4.             However, section 153YC is broader than paragraph 153YB(2)(k) as it allows production of goods to also occur exclusively in the US and Australia and also allows goods to be produced exclusively from goods that are originating materials.  Therefore, US originating goods can be produced from any combination of US originating goods, Australian originating goods and indirect materials.

 

Subdivision D - Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

 

5.             Subdivision D sets out the rules in relation to goods (except clothing and textiles) that are produced entirely in the US or in the US and Australia from non-originating materials only, or from non-originating materials and originating materials.

 

Section 153YD  Simplified outline

 

6.             New section 153YD sets out a simplified outline of Subdivision D.

 

Section 153YE  Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials

 

7.             New section 153YE sets out the general rules for determining whether goods (except clothing and textiles) that are produced entirely in the US or in the US and Australia from non-originating materials are US originating goods .

 

8.             New subsection 153YE(1) provides that goods are US originating goods if:

 

a)       a tariff classification (the final classification) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and

 

b)       they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

 

c)       if any of the following 3 requirements apply in relation to the goods - that requirement is satisfied.

 

1.             As referred to previously, the Schedule 1 tariff table will be the table in Schedule 1 to the FTA Regulations which will incorporate the product specific rules relating to change in tariff classification, regional value content and other rules for the purpose of determining whether goods (other than clothing and textiles) are US originating goods.  Column 1 of this table will set out the product descriptions, column 2 will set out the tariff classifications and column 3 will set out the product specific rules.

 

2.             New subsection 153YE(2) sets out the first of the requirements.  It provides that, subject to subsection (3), the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 1 table opposite the final classification for the goods.

 

3.             The concept of the change in tariff classification only applies to non-originating materials and means that goods that are sourced from outside or within the US or Australia and that are used to produce other goods, may not have the same classification under the Harmonized System or the Harmonized US Tariff Schedule as the final goods into which they are produced.  This means that the goods must be classified under one tariff classification before the production process and under a different tariff classification after the production process.  This approach ensures that sufficient transformation of materials has occurred within the US, or the US and Australia, to justify the claim that the goods are the produce of the US.

 

4.             For example, frozen pork (HS 0203) is imported into the US from Hungary and combined with spices from the Caribbean (HS 0907 - 0910) and cereals produced in the US to make pork sausages (HS 1601).  The applicable change in tariff classification rule for pork sausages is “a change to heading 16.01 to 16.05 from any other chapter”.  As the frozen meat is classified to Chapter 2 and the spices to Chapter 9, these goods that are non originating meet the change in tariff classification requirement (the cereal is the produce of the US and is therefore an originating material and is not required to change its classification).

 

5.             In order to determine which is the applicable change in tariff classification, the tariff classification of the final goods and each of the goods that are non originating materials used in the production of the goods needs to be known.

 

6.             Subsection 153YE(2) then provides that the first requirement is that:

 

a)       each of the non-originating materials satisfies the transformation test.  The transformation test is set out in subsection 153YE(8) and includes the requirement that the non-originating material satisfy the change in tariff classification that is specified in column 3 of the Schedule 1 table opposite the final classification for the goods.  Special provision is also made for where the non-originating material does not directly satisfy the change in tariff classification requirement and this will be further explained below; or

 

b)       the following are satisfied:

 

(ii)          the total value of all non-originating materials does not exceed 10% of the customs value of the goods;

(iii)        if one or more or the non-originating materials are prescribed for the purposes of this paragraph - each of those non-originating materials satisfies the transformation test in subsection (8).

 

1.             The provisions of paragraph (b) incorporate the de minimis provisions that are set out in Article 5.2 of the Agreement.  The effect of these provisions is that if the total value of all non-originating materials in a final good does not exceed 10% of the customs value of the final good, the non-originating materials do not have to satisfy the transformation test specified in column 3 of the Schedule 1 table opposite the final classification for the goods.

 

2.             However, the de minimis requirement does not apply to all non-originating materials that are used to produce goods in the Schedule 1 tariff table.  If non-originating materials are prescribed for the purposes of paragraph (b), they shall still have to satisfy the transformation test notwithstanding that the total value of non-originating materials does not exceed 10%.

 

3.             The value of non-originating materials for the purposes of this section is to be worked out in accordance with the methods that will be included in the FTA Regulations.

 

4.             New subsection 153YE(3) provides that the first requirement in subsection (2) does not apply if:

 

a)       an alternative requirement to the change in tariff classification is specified in column 3 of the Schedule 1 tariff table opposite the final classification of the goods; and

 

b)       the alternative requirement is satisfied.

 

1.             As referred to above, column 3 of the Schedule 1 tariff table will incorporate the product specific rules relating to change in tariff classification, regional value content and other rules for the purpose of determining whether goods (other than clothing and textiles) are US originating goods.  In most instances, the requirements will be cumulative - they will all have to be satisfied.  However in some instances, they may be expressed as alternative requirements whereby one does not have to be satisfied if the other one is satisfied.  Subsection 153YE (3) applies if an alternative requirement to the change is tariff classification is specified - if so, subsection (2) does not apply.  See for example column 3 of headings 7420 and 8404.20.

 

2.             Subsection 153YE(4) sets out the second requirement and provides that, subject to subsection (5), the second requirement applies only if a regional value requirement is specified in column 3 of the Schedule 1 tariff table opposite the final classification of the goods.  The second requirement is that the goods satisfy the regional value requirement.

 

3.             In respect of goods in the Schedule 1 tariff table, approximately one-sixth of these goods may also be required to satisfy a regional value content requirement.  The regional value content is, in most cases, either 35% based on the build-up method or 45% based on the build-down method or, in respect of some automotive goods, 50% based on the net cost method.  The calculations for each of these methods will be included in the FTA Regulations .  Subsection 153YE(6) provides that the regulations may prescribe different regional value content requirements for different kinds of goods.

 

4.             New subsection 153YE(5) provides that the second requirement in subsection (4) does not apply if:

 

a)       an alternative requirement to the regional value content is also specified in column 3 of the Schedule 1 tariff table opposite the final classification of the goods; and

 

b)       the alternative requirement is satisfied.

 

1.             This subsection is required for the same reasons set out above in respect of subsection 153YE(3).

 

2.             Subsection 153YE(7) provides that the third requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 1 tariff table opposite the final classification of the goods.  An example of such a requirement is in heading 2103.20.

 

3.             Subsection 153YE(8) sets out the transformation test for the purposes of subsection 153YE(1) and provides that a non-originating material satisfies the transformation test if:

 

a)       it satisfies the change in tariff classification that is specified in column 3 of the Schedule 1 tariff table opposite the final classification of the goods (this has been explained above); or

 

b)       it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non-originating materials, each of which satisfies the transformation test (including by one or more application of this subsection).

 

1.             Paragraph (b) gives effect to the accumulation provisions contained in paragraph 2 of Article 5.3 of the Agreement and applies where the non-originating materials that are used to directly produce the final good do not satisfy the change in tariff classification.

 

2.             In producing the final good, a producer may use goods that are produced in the US by another producer.  The components of these goods may be produced by yet another producer in the US or imported into the US.  It is possible that the change in tariff classification rule may not be satisfied at each step in the production process from the imported component to the final goods which may mean that the final goods are non-originating.

 

3.             In such circumstances, it may be possible to examine each step in the production process of each non-originating material that occurs in the US or Australia in order to determine whether each step satisfies the change in tariff classification rule for the final goods directly from that step to the final goods.  If this does occur, the material will be an originating material and the final goods may be originating goods (subject to satisfying all other requirements of new Division 1C of Part VIII of the Customs Act).  This is how paragraph 153YE(8)(b) operates.

 

4.             The following examples illustrates the above concept:

 

·                A producer imports non-originating carded cotton, of heading 5203, for use in the production of cotton yarn of heading 5205.  Because the change in tariff classification from carded cotton to cotton yarn is a change within the same chapter, the carded cotton does not satisfy the applicable change in tariff classification rule for cotton yarn.  Therefore, the cotton yarn is also classed as non-originating.

 

·                The cotton yarn is then sold to another producer within the US or Australia, who uses the cotton yarn in the production of woven fabric of heading 5208.  The change in tariff classification from cotton yarn to woven fabric does not satisfy the applicable change in tariff classification rule for woven fabric.  Therefore, the woven fabric is also classed as non-originating.

 

·                However the producer of the woven fabric can accumulate the production of the cotton yarn, and the cotton yarn would then be considered to have been produced by the producer of the woven fabric.  This is allowed because both the yarn and the fabric were both produced within the US .

 

·                Therefore the direct change in tariff classification from carded cotton of heading 5203 to woven fabric of 5208 would satisfy the applicable change of tariff classification for heading 5208.  The woven fabric of cotton would be considered as an originating good.

 

5.             The following example, with diagram and explanation, also clearly demonstrates the operation of paragraph 153YE(8)(b).

 

·                Example: The following diagram relates to the production of particular goods that occurred entirely in the US. The diagram and the accompanying text illustrate the application of subsection(8).

 

 

·                The goods are produced from non-originating materials 1 and 2.

 

·                First application of subsection (8)

 

Non-originating materials 1 and 2 must satisfy the transformation test. Under paragraph (8)(a), non-originating material 1 does satisfy the relevant change in tariff classification. Under paragraph (8)(b), non-originating material 2 does not satisfy the relevant change in tariff classification, but it has been produced by non-originating materials 3 and 4.

 

·                Second application of subsection (8)

 

Non-originating materials 3 and 4 must satisfy the transformation test. Under paragraph (8)(a), non-originating material 3 does satisfy the relevant change in tariff classification. Under paragraph (8)(b), non-originating material 4 does not satisfy the relevant change in tariff classification, but it has been produced by non-originating material 5.

 

·                Third application of subsection (8)

 

Non-originating material 5 must satisfy the transformation test. Under paragraph (8)(a), non-originating material 5 does satisfy the relevant change in tariff classification.

 

·                Final result

 

The result of the 3 applications of subsection(8) is that non-originating material 2 does satisfy the transformation test.

 

Section 153YF  Goods that are chemicals, plastics or rubber

 

6.             New section 153YF sets outs a special rule that will apply only in respect of goods that are classified to Chapters 28 to 40 of the Harmonized System, being chemicals, plastics and rubber.  This section provides that these goods are US originating goods if:

 

a)       they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only, or from non-originating and originating materials; and

 

b)       they are goods that are classified to any of Chapters 28 to 40 of the Harmonized System; and

 

c)       a tariff classification (the final classification ) that is specified in column 2 of the Schedule 1 tariff table applies to the goods; and

 

d)      before the tariff classification in column 2 of that table in relation to Chapter 28 or 39 of the Harmonized System, the regulations specify particular rules in column 3 of that table; and

e)       those rules apply in relation to the final classification of the goods; and

 

f)        the goods satisfy those rules.

 

1.             The rules that are referred to in paragraph (d) are to be distinguished from the requirements referred to in subsection 153YE(7).  Under this section, the rules will appear before the tariff classifications in Chapter 28 or 39 and may have application across Chapters 28 to 40 of the Harmonized System.

 

2.             If goods satisfy all of the requirements of this section, they will be US originating goods and will not have to satisfy the requirements of section 153YE.

 

 

Subdivision E - Goods that are clothing and textiles produced entirely in the US or in the US and Australia from non-originating materials

 

3.             Subdivision E sets out the rules in relation to goods that are clothing and textiles that are produced entirely in the US or in the US and Australia from originating materials only, or from non-originating materials and originating materials.

 

Section 153YG  Simplified outline

 

4.             New section 153YG sets out a simplified outline of Subdivision E.

 

Section 153YH  Goods that are clothing and textiles produced entirely in the US or in the US and Australia from non-originating materials

 

5.             New section 153YH sets out the general rules for determining whether goods that are clothing and textiles that are produced entirely in the US or in the US and Australia from non-originating materials are US originating goods .

 

6.             New subsection 153YH(1) provides that, subject to subsection (5), goods are US originating goods if:

 

a)       a tariff classification (the final classification) that is specified in column 2 of the Schedule 2 tariff table applies to the goods; and

 

b)       they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only or from non-originating materials and originating materials; and

 

c)       if any of the following two requirements apply in relation to the goods - that requirement is satisfied.

1.             As previously referred to, the Schedule 2 tariff table will be the table in Schedule 2 to the FTA Regulations which will incorporate the product specific rules relating to change in tariff classification and other rules for the purpose of determining whether goods that are clothing and textiles are US originating goods (there are no regional value content requirements for clothing and textiles).  Column 1 of this table will set out the product descriptions, column 2 will set out the tariff classifications, and column 3 will set out the product specific rules.

 

2.             New subsection 153YH(2) sets out the first of the requirements in similar terms to subsection 153YE(2).  It provides that the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 2 table opposite the final classification for the goods.  Subsection 153YE(2) then provides that the first requirement is that:

 

a)       subject to subsection (3), each of the non-originating materials satisfies the transformation test.  The transformation test is set out in subsection 153YH(7) and includes the requirement that the non-originating material satisfy the change in tariff classification that is specified in column 3 of the Schedule 2 table opposite the final classification for the goods.  Special provision is also made for where the non-originating material does not directly satisfy the change in tariff classification requirement and this will be further explained below; or

 

b)       the following are satisfied:

 

(i)                  the total weight of all the non-originating materials does not exceed 7% of the total weight of the goods;

 

(ii)                if one or more or the non-originating materials are prescribed for the purposes of this paragraph - each of those non-originating materials satisfies the transformation test in subsection (7).

 

1.             The provisions of paragraph (b) incorporate the de minimis provisions for clothing and textiles that are set out in Article 4.2 of the Agreement.  The effect of these provisions is that if the total weight of all non-originating materials in a final good does not exceed 7% of the total weight of the final good, the non-originating materials do not have to satisfy the transformation test specified in column 3 of the Schedule 2 table opposite the final classification for the goods. 

 

2.             However, the de minimis requirement does not apply to all non-originating materials that are used to produce goods in the Schedule 2 tariff table.  If non-originating materials are prescribed for the purposes of paragraph (b), they shall still have to satisfy the transformation test notwithstanding that the total weight of non-originating materials does not exceed 7%.

3.             Subsection 153YH(3) sets out qualifications on the application of the first requirement.  This section provides that in relation to goods classified to Chapter 61, 62 or 63 of the Harmonized System, paragraph 2(a) is to be applied by applying:

 

a)       for goods covered by Chapter 61 of the Harmonized System - Chapter Rule 2 for Chapter 61 that is set out in the Schedule 2 tariff table; and

 

b)       for goods covered by Chapter 62 of the Harmonized System - Chapter Rule 3 for Chapter 62 that is set out in the Schedule 2 tariff table; and

 

c)       for goods covered by Chapter 63 of the Harmonized System - Chapter Rule 1 for Chapter 63 that is set out in the Schedule 2 tariff table; and

 

1.             Each of these Chapter Rules will set out the particular components of the goods that are required to satisfy the transformation test.

 

2.             Subsection 153YH(4) provides that the second requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 2 tariff table opposite the final classification of the goods.  An example of such a requirement is in column 3 of headings 6102.90 and 6103.31

 

3.             Subsection 153YH(5) sets out particular provisions that apply in relation to clothing and textiles that are put up for retail sale as part of a set and classified as a set because they comply with Rule 3 of the Interpretation Rules.  Such goods are US originating goods only if:

 

a)       all of the goods in the set are US originating goods under Division 1C; or

 

b)       the total value of the goods in the set that are not US originating goods under Division 1C does not exceed 10% of the customs value of the set of goods.

 

1.             Subsection 153YH(6) then provides that in applying subsection (5), assume the goods were not part of a set.  This means, for example, that in determining whether goods in a set are US originating goods, each component of the set is assessed individually.

 

2.             The example set out after subsection (6) demonstrates the operation of subsections (5) and (6).

 

3.             Subsection 153YH(7) sets out, in similar terms to subsection 153YE(8), the transformation test for the purposes of subsection 153YH(1) and provides that a non-originating material satisfies the transformation test if:

 

a)       it satisfies the change in tariff classification that is specified in column 3 of the Schedule 2 tariff table opposite the final classification of the goods (this has been explained above); or

 

b)       it does not satisfy the change in tariff classification mentioned in paragraph (a), but it was produced entirely in the US, or entirely in the US and Australia, from other non-originating materials, each of which satisfies the transformation test (including by one or more application of this subsection).

 

 

1.             Paragraph (b) also gives effect to the accumulation provisions contained in paragraph 2 of Article 5.3 of the Agreement and applies where the non-originating materials that are used to directly produce the final good do not satisfy the change in tariff classification.  The application of this provision is explained above under subsection 153YE(8).

 

Section 153YI  Goods that are clothing and textiles classified to Chapter 62 of the Harmonized System

 

2.             New section 153YI sets outs a special rule that will apply only in respect of clothing and textiles that are classified to Chapter 62 of the Harmonized System.  This section provides that goods of US originating goods if:

 

a)       they are produced entirely in the US, or entirely in the US and Australia, from non-originating materials only, or from non-originating and originating materials; and

 

b)       they are goods that are classified to Chapters 62 of the Harmonized System; and

 

c)       either:

 

(i)                  in any case - the goods satisfy Chapter Rule 2 for Chapter 62 that is set out in the Schedule 2 tariff table; or

 

(ii)                in the case of goods classified to subheading 6205.20 or 6205.30 of Chapter 62 of the Harmonized System - the goods satisfy the subheading rule for that subheading that is set out in the Schedule 2 tariff table.

 

1.             The Chapter and subheading rules referred to in paragraph (c) are different from the Chapter Rules that are referred to in 153YH(3).

 

2.             Similar to section 153YF, if goods satisfy all of the requirements of this section, they will be US originating goods and will not have to satisfy the requirements of section 153YH.

Subdivision F - Other US originating goods

 

3.             Subdivision F sets out a specific rule that applies to goods that are standard accessories, spare parts or tools.

 

Section 153YJ  Standard accessories, spare parts and tools

 

4.             New section 153YJ provides that if goods (the underlying goods ) are imported into Australia with standard accessories, standard spare parts or standard tools, then the accessories, spare parts or tools are US originating goods if:

 

a)       the underlying goods are US originating goods; and

 

b)       the accessories, spare parts or tools are not invoiced separately from the underlying goods; and

 

c)       the quantities and value of the accessories, spare parts or tools are the usual quantities and value in relation to the underlying goods.

 

1.             However, subsection 153YJ(2) provides that in working out if the underlying goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the accessories, spare parts or tools be taken into account for the purposes of that requirement.  Without this provision, the value of accessories, spare parts and tools would not normally form part of the value of materials that are used in the production of the underlying goods. 

 

Subdivision G - Packaging materials and containers

 

2.             Subdivision G sets out a specific rule that applies to goods that are packaging materials and containers.

 

Section 153YK  Packaging materials and containers

 

3.             New subsection 153YK(1) provides that if:

 

a)       goods are packaged for retail sale in packaging material or a container; and

 

b)       the packaging material or container is classified with the goods in accordance with Rule 5 of the Interpretation Rules;

 

1.             then the packaging material or container is to be disregarded for the purposes of this Division except for the purposes of the exception detailed below.  This means that the packaging material or container does not need to satisfy the transformation test that applies to the goods.

 

2.             However, similar to section 153YJ, subsection 153YK(2) provides that the exception is that in working out if the goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the packaging material or container to be taken into account for the purposes of that requirement.  Without this provision, the value of packaging materials and containers would not normally form part of the value of materials that are used in the production of the goods. 

 

Subdivision H - Consignment

 

3.             Subdivision H sets out the consignment requirements that must be satisfied in transporting US originating goods to Australia.

 

Section 153YL  Consignment

 

4.             New subsection 153YL(1) provides that goods are not US originating goods under Division 1C if:

 

a)       they are transported through a country or place other than the US or Australia; and

 

b)       they undergo any process of production in that country or place, other than unloading, reloading, any operation to preserve them in good condition or any operation that is necessary for them to be transported to Australia.

 

1.             Subsection 153YL(2) provides that this section applies despite any other provisions on this Division.  This means that even if goods are US originating goods in accordance with any other provisions of Division 1C, if they do not comply with section 153YL they will not be US originating goods.

 



Part 2 Verification powers

 

2.             Chapter 4 of the Agreement relates to textile and apparel goods. Under Article 4.3, the United States of America (the US) will be able to request that Australia conduct a verification to enable the US to determine:

 

a)       that a claim of origin for a textile or apparel good is accurate; or

 

b)       that an Australian exporter or producer of textile or apparel goods is complying with applicable customs laws, regulations and procedures regarding trade in textile and apparel goods, including laws, regulations and procedures that Australia adopts and maintains pursuant to the Agreement and laws, regulations and procedures of either Party implementing other international agreements regarding trade in textile and apparel goods, and that claims of origin regarding textile and apparel goods exported or produced by that person are accurate.

 

1.             Article 4.3 of the Agreement also permits competent authorities of the US to assist in a verification, including by conducting visits, along with Customs officers, to the premises of an exporter, producers, or any person involved in the movement of a textile or apparel good from Australia to the US.

 

2.             Part 2 implements Article 4.3 by inserting two sets of powers into the Customs Act 1901 (the Customs Act).  They will be contained in Division 4B of Part VI and Subdivision JA of Division 1 of Part XII.

 

3.             ‘Textile and clothing goods’ will be defined in both Divisions by reference to relevant headings, subheadings and Chapters of the Harmonized System (new subsection 126AE(4) and section 214BAB refer).

 

Request documents and ask questions

 

4.             New Division 4B of Part VI will allow authorised customs officers to request an exporter or a producer of textile and clothing goods that are exported to the US or a person involved in the movement of textile and apparel goods from Australia to the US to produce records, or to answer questions in relation to the export, production or transportation of the goods (new subsection 126AE(1) refers).

 

5.             The person will not be required to produce the documents or answer the questions (new subsection 126AE(2) refers).  Hence the person will not be subject to the offences in section 243SA or 243SB of the Customs Act.

 

6.             An authorised officer may then disclose those records and answers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement (new subsection 126AE(3) refers).

 

7.             The collection, use and disclosure of records or answers under these provisions will be in accordance with the Privacy Act 1988 and in particular Information Privacy Principal 11.3.  Customs will take reasonable steps to ensure that the US customs official does not disclose the record or answer for a purpose other than the purpose for which the record or answer was given to the US customs official.

 

Monitor and audit

 

8.             New Subdivision JA of Division 1 of Part XII will allow certain authorised customs officers (verification officers) to enter premises and exercise certain powers (AUSFTA verification powers) in that premises for the purpose of verifying information relating to the export, production or transport of textile and clothing goods that are exported to the US.  New section 214BAC sets out what are AUSFTA verification powers.

 

9.             The provisions relating to AUSFTA verification powers have been modelled on existing provisions in Subdivision J of Division 1 of Part XII of the Customs Act that provide general monitoring powers for verifying compliance with Australian Customs-related laws (“Subdivision J powers”).  The AUSFTA verification powers differ from the general monitoring powers in a number of ways as detailed below.

 

10.         The existing Subdivision J powers allow monitoring officers to enter premises and exercise monitoring powers with the consent of the occupier or under a warrant.  However, verification officers will only be able to enter premises and exercise AUSFTA verification powers with the consent of the occupier of the premises (new section 214BAE refers). 

 

11.         New Subdivision JA will allow US customs officials to accompany a verification officer (new section 214BAF refers).  Again the occupier of the premises must consent to the US customs official entering the premises.  The US customs official will have no powers in the premises and, in particular, will not be able to exercise verification powers.

 

12.         Since the powers will only be able to be exercised with consent, a verification officer must, before obtaining an occupier’s consent, give the occupier a written notice stating that the officer wishes to enter the premises and exercise AUSFTA verification powers in or on the premises and the period during which the officer wishes to exercise the powers (new paragraphs 214BAE(3)(a) and (b) refer).  Under existing Subdivision J powers, the giving of this notice is not mandatory, especially where the powers are being exercised pursuant to a warrant.

 

13.         The notice must also include the name of any US customs official who the verification officer proposes will accompany the officer (new paragraph 214BAE(3)(c) refers).

 

14.         New subsections 214BAE(8) and 214BAF(4) make it clear that consent does not have effect unless it is voluntary.

 

15.         Further a verification officer cannot use reasonable force in exercising AUSFTA verification powers.

 

16.         New section 214BAJ allows a verification officer to disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.  Again the collection, use and disclosure of information under these provisions will be in accordance with the Privacy Act 1988 and in particular Information Privacy Principal 11.3.  Customs will take reasonable steps to ensure that the US customs official does not disclose information for a purpose other than the purpose for which the record or answer was given to the US customs official.

 

17.         New section 214BAK makes it clear that a person may operate electronic equipment at premises in order to exercise a power under Subdivision JA only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 2 - Agriculture and Veterinary Chemicals

 

Agricultural and Veterinary Chemicals Code Act 1994 (Code Act).

 

Part 1: Limits on use of information

 

18.         Item 1 inserts Division 4A - Limits on use of information that sets out limits on the uses the NRA can make of certain information given to it in connection with an application per existing section 10 and 27 and other information provided to it under sections 160A and 161.

 

19.         Specifically, the table in subsection 34C(1) sets out those limits (by specifying the identity of the information, the period of constraint and the nature of the restricted purpose) that apply to the NRA, unless the NRA is given a written statement authorising the use of the information (refer subsection 34D(2)) or certain other conditions are met as set out in section 34D.

 

·          Subsection 34C(2) provides that section 34C applies only to information given to the NRA in connection with an application made, or given under s161, after the commencement of this section;

 

·          Subsection 34C(3) provides that the use of information in contravention of subsection (1) does not affect the validity of the decision; and

 

·          Subsection 34C(4) provides that no action will lie against the Commonwealth, the NRA or other specified persons for any direct or indirect loss because of the use of the information in contravention of subsection (1).

 

20.         Section 34D sets out a suite of exceptions to the limits on use of information established by section 34C.  Specifically, when:

 

·          an applicant, an approved person or the interested person provides a written statement by the authorising party (defined at Item 4) authorising its use [subsection 34D(2)];

 

·          use of the information is in the public interest (under rules and requirements specified in subsection 34D(3) and section 34E) [subsection 34D(3)];

 

·          information does not favour the applicant or interested person in the circumstances where the information meets certain conditions in s160A or s161 dealing with adverse effects or that the product may be ineffective [subsection 34D(4)];

 

·          the NRA is satisfied that there is identical information or information to the same effect that is not limited by section 14B or 34C or Part 3 dealing with compensation for providers of certain information in respect of continued registration of certain chemical products [subsection 34D(5)];

 

·          the information was given to the NRA in connection with certain applications mentioned in subsection 34C(1) [subsection 34D(6)], being an application for:

 

a)       a previously endorsed active constituent [refer Item 6] that was endorsed prior to the commencement of this Division, whether or not the approval or registration was a result of an application by a particular person;

 

b)       a variation of the relevant particulars or conditions of an approval of an active constituent as this information is not generally useful (within the purpose of the data protection scheme) for the purpose of a subsequent application by another person;

 

c)       registration of a product containing a previously endorsed active constituent; approval of labels for containers of chemical products containing a previously endorsed active constituent; variations to the relevant particulars or conditions of a registration of a chemical product or a label for a container of a chemical product, where that chemical product is a companion animal product (refer Item 5).

 

1.             Further to the exemption provided at subsection 34D(3) dealing with use in the public interest, section 34E provides that the NRA may use information that would be otherwise prohibited by section 34C, if it is satisfied that the use of such information is in the public interest provided that it gives a notice to the applicant, an approved person or an interested person and the person whom the NRA believes is the authorising party.  The NRA must not make a decision using the information before the end of 28 days after the day on which it gives notice.

 

·          Subsection 34E(5) provides that the NRA may use the information if it believes it is necessary to make the decision before the end of the 28 days to prevent imminent risk to public health or occupational health or safety and it states that belief in the notice.

 

2.             Subsection 34C(1) sets out, in part, the period of limitation on future use of certain information in certain circumstances.  The table in Section 34F provides the specifics of the period of limitations (as years) upon the use of information in the particular circumstances of when that information was required by the NRA or s160A and relied upon by the NRA in making a decision under sections 14, 29 or 34 (i.e. as anticipated in table item 3 of subsection 34C(1)). 

 

·          Subsection 34F(1) provides that the period of protection for the information referred to above starts when the application was granted.

 

3.             Distinction in the length of protection is made within the table in section 34F by reference to particular types of applications made under sections 10 and 27:

 

·          providing a period of 8 years protection for information relating to new innovation in the form of an approval of an active constituent(s) that had not previously been endorsed (refer Item 6) and registration of chemical products and approvals of labels for containers of those chemical products that contained at least one active constituent that was not previously endorsed, when the application was acknowledged (refer Item 3) [table item 1 and 2]; and

 

·          providing lesser lengths of protection in other circumstances relating to innovation that springboards off the original innovation anticipated in table items 1 and 2. [table items 3 to 6]. 

 

·          In doing so, the table establishes different periods of protection for agricultural (5 years) and veterinary (3 years) chemical products.

 

4.             As a driver for greater innovation in information to support uses in the minor crop sub sectors of agriculture, Subsection 34F(2) introduces a mechanism to enable the base periods of protection offered to the information submitted in support of an application mentioned in table item 1 and 2 within subsection (1) to be extended in certain circumstances.

 

5.             The period offered in the table item 1 and 2 may be extended by 1 year (up to a total of 11 years) for each 5 distinct uses (to be prescribed in regulation) that meet certain criteria relating to:

 

a)                   The active constituent (a key constituent), the chemical product (the extension product) and the approved label must be captured within the scope of the table Item 1);

 

b)                   The chemical product (the extension product) for which the new use is proposed:

 

(i)         must contain a key constituent mentioned in a); and

 

(ii)        was registered as a result of an application that was made by the same applicant that made the application for the same key constituent; and

 

(iii)       must have had the application to register it acknowledged (refer Item 3) prior to the approval of its key constituent.

 

c)                   The proposed distinct uses:

 

(i)         Each of the proposed uses must be included in an approved label for a container for an extension product as a result of an application for an approval of a label or a variation of the particulars or conditions of an approval of a label; and

 

(ii)        The application was made by the same applicant that made the application for the key constituent mentioned in b); and

 

(iii)       The application was acknowledged by the end of the sixth year after the date of the approval of the key constituent.

 

(iv)       Furthermore to gain the extension of each one-year, all five uses must be prescribed at the time of granting of the latest application to approve or vary a label.

 

 

 



Part 2: Provisions relating to limits on the use of information

 

1.             Item 2 amends paragraph 69EX(a) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Admin Act) by including a reference to new Division 4A of Part 2 in the provisions of the Admin Act setting out Australia’s previous mechanism to comply with the obligations arising from paragraph 3 of Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (for full title refer s69EW of the Admin Act).  Division 4A is that part which is inserted by Part 1 of this Bill.  The purpose of this inclusion is to limit the application of the existing Part 7B of the Admin Act to that time prior to the commencement of Division 4A of Part 2 of the Code Act as included by this Bill.

 

2.             Part 2 also inserts the following new definitions in Section 3 of the Code Act:

 

·          acknowledge as the means of identifying which applications may be relevant to the mechanism to extend the period of protection per section 34F [Item 3];

 

·          authorising party as the means to identify that person who may bring an action if the information was disclosed by someone else to the NRA [Item 4];

 

·          companion animal product as a means to identify a veterinary chemical product that is one used solely for administration to animals that are not food-producing and not prescribed in the regulation so as to exclude them from the data protection regime [Item 5]. and

 

·          previously endorsed active constituent as the means to identify those active constituents that had already been dealt with (endorsed) previously, in the existing chemicals management regime, or a previous State or Territory chemicals management regime, so as to ensure that only new innovation attracts the higher levels of data protection, including the capacity to attract an extension of the base period of attraction [Item 6].

 

3.                   Item 7 inserts new section 11B in the Schedule to the Code Act that provides that the NRA must publish summaries of each application as soon as practicable after the application is acknowledged. The details to be included in the summary will be prescribed by regulations (if any).

 

4.                   Item 8 inserts new section 14B in the Code Act that gives effect to the terms of Article 17.10:1(e) of the AUSFTA by providing that the NRA is not to use, for a period of 10 years [subsection 14B(2)], certain information, that has been given to it in connection with an application for registration of certain new agricultural chemical products, to approve the same or similar product when that information has been disclosed by a government entity or an entity acting on behalf of a government and that information was not previously publicly available.

 

·          New subsection 14B(3) provides that use of the information contrary to subsection 14B(2), does not affect the validity of the registration.

5.             Item 9 repeals and substitutes subparagraph 15(1)(a)(i) of the Schedule to the Code Act so as to prohibit the NRA from registering a chemical product unless it also grants, or has granted, an approval for each active constituent for the product.  The purpose of the amendment is part of the mechanism to encourage earlier applications for new chemical products containing a new active constituent, thereby facilitating earlier entry into the market with the consequent benefits for agriculture.

 

6.             Item 10 introduces new section 28A and section 28B.  Section 28A provides for the preliminary assessment of applications lodged under section 28 of the Code Act for a variation of relevant particulars or of conditions of approval or registration. Section 28B provides for the NRA to publish summaries of each application, unless satisfied that the application does not relate to use or dealing with a chemical product, as soon as practicable after the application is acknowledged. The details to be included in the summary will be prescribed by regulations (if any).  Both clauses duplicate the mechanism to ensure the quality of applications provided in section 11A as it relates to applications for approvals of active constituents and labels and registrations of chemical products.

 

7.             Item 11 amends subsection 58(1) to provide that the exception to the limits upon the NRA in using information is extended to include the requirements of section 14B, Division 4A of Part 2.

 

8.             Section 167 of the Code Act is amended by Item 12 to ensure that a decision made by the NRA under section 28A to defer, treat as withdrawn or to reject, an application is a reviewable decision before the Administrative Appeals Tribunal (AAT).

 

9.             Section 34D of the Bill provides that the NRA may use information in certain circumstances, in particular in relation to the public interest and risk to health and safety.  Item 13 amends s167 to provide that a decision under proposed subsection 34D(3) to use information in the public interest is a reviewable decision before the AAT.  Item 14 inserts new section 2A in Section 167 to provide that an application may not be made to the AAT to review a decision of the NRA to use information if the use of that information was considered necessary to prevent imminent risk to public health or occupational health or safety.

 

Part 3: Change of name from NRA to APVMA. 

 

10.         The Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Bill 2004 is presently before Parliament.  This Name Change Bill changes the name of the National Registration Authority for Agricultural and Veterinary Chemicals (NRA) to the Australian Pesticides and Veterinary Medicines Authority (APVMA). 

 

11.         Part 3 (Items 15 - 21) may be omitted and Parts 1 and 2 will be amended to refer to the APVMA if it becomes certain that the provisions of the Name Change Bill will commence before the commencement of the amendments to be made by Parts 1 and 2 of this schedule.



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 3 - Australian Geographic Indications for Wine

 

Subdivision D - Objections to determination of geographical indications based on pre-existing trade mark rights

 

12.         Subdivision D provides procedures for a trade mark owner to object to the determination of a GI .  It establishes a mechanism in the GI determination process for the Registrar of Trade Marks to consider the rights of trade mark owners and advise the Geographical Indications Committee (GIC) of the outcome.  This mechanism:

 

·          maintains the “first in time, first in right” principle (protects the rights of pre-existing trade mark owners);

 

·          ensures the onus is on the owner of the trade mark to protect their rights; and

 

·          provides the opportunity for all parties to present their case.

 

Section 40RB Grounds of objection to the determination of a geographical indication

 

13.         The amendments will provide for the Registrar of Trade Marks (the Registrar) to hear objections from:

 

a)       40RB(1) registered owners of registered trade marks;

 

b)       40RB(3) applicants for the registration of a trade mark; and

 

c)       40RB(4) common law trade mark owners

 

to the determination of an Australian GI on the basis of pre-existing trade mark rights.

 

1.             The amendments will provide for the Registrar of Trade Marks (the Registrar) to hear objections to the determination of a GI on the basis of pre-existing trade mark rights on one of three different grounds:

 

a)       the proposed GI is identical to a registered trade mark;

 

b)       the proposed GI would cause confusion with a trade mark that consists of a word or expression;

 

c)       the proposed GI would cause confusion with a trade mark that contains a word or expression.

 

 

 

 

The proposed GI is identical to a registered trade mark

 

1.             Where a proposed GI is identical to a word or expression of which a registered trade mark consists and the trade mark consists only of that word or expression (and the registered trade mark does not have a device or logo) the validity of the registration will be presumed and the objection will be taken to be made out.

 

2.             For example, if the registered trade mark is “Bourke Valley” and the proposed GI is “Bourke Valley” the Registrar will determine that an objection has been made out.

 

The proposed GI would cause confusion with a trade mark that consists of a word or expression

 

3.             Where a trade mark includes a word or expression the same as or similar to the proposed GI (and the trade mark does not have a device or logo), the Registrar will consider whether the proposed GI would cause confusion with the trade mark.

 

4.             In this instance the proposed GI may be very similar to the trade mark or the name of the proposed GI may be an element of the words that make up the trade mark.

 

5.             For example, the Registrar will consider whether a GI "Bourke Valley" would cause confusion with the whole trade mark "Bourke Valleys" or the whole trade mark “Bourke Valley Estate”.

 

The proposed GI would cause confusion with a trade mark that contains a word or expression

 

6.             Where a trade mark contains a word or expression that is the same as or similar to the proposed GI the Registrar will consider whether the proposed GI will cause confusion with the part of the trade mark.

 

7.             In this instance a trade mark may also include a device or logo as well as a word or expression.

 

8.             The Registrar will also consider whether the trade mark owner has rights in the words that are the same as or similar to the GI.

 

9.             For example if the proposed GI is "Bourke Valley" and a trade mark is "Bourke Valley Estate" the Registrar will consider whether confusion is likely between the proposed GI "Bourke Valley" and the words "Bourke Valley" in the trade mark.  However the trade mark owner will also need to show that they have rights in the words "Bourke Valley".

 

10.         In all the above examples a person who claims to have trade mark rights in a trade mark that is not registered (a common law trade mark owner) will have to demonstrate that they do have those rights.

Section 40RC Consideration of objections

 

11.         The Registrar may find that despite a ground of objection being made out it is reasonable for the proposed GI to be determined.  Such a finding could be made when the Registrar finds that the proposed GI was in use before the trade marks rights arose. 

 

Section 40RF Appeals

 

12.         Appeals against findings of the Registrar may be made to the Federal Court as is the case with appeals against the Registrar’s findings under the Trade Marks Act 1995 .

 

Section 40RG Decisions made under this Act not to affect rights under Trade Marks Act

 

13.         The Registrar will make decisions about trade marks rights on the basis of a different process to the process set out in the Trade Marks Act .  Consequently decisions made under the Australian Wine and Brandy Corporation Act do not create rights or pre-empt or influence decisions of the Registrar under the Trade Marks Act .

 

Consequential changes to the Australian Wine and Brandy Corporation Regulations

 

14.         A new sub-regulation to the Australian Wine and Brandy Corporation Regulations 1981 will provide that a person who owned a registered trade mark before a GI was applied for or has made out a ground of objection may continue to use the trade mark for the description and presentation of a wine regardless of the origin of the wine.  Where the wine is sourced from grapes grown outside of the GI the trade mark may continue to be used in the description and presentation of the wine provided that an appropriate statement is included on the label that alleviates any confusion as to the origin of the wine.

 

Division 4A - Omission of registered geographical indications

 

15.         A new Division 4A has been included in the Australian Wine and Brandy Corporation Act to provide that the GIC may remove Australian GIs from the Register of Protected Names on the grounds that the GI is not in use or is no longer required. 

 

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 4 - Life Insurance

 

Item 1

132.           The Life Insurance Act 1995 (Life Act) is based on the notion that only entities incorporated in Australia are able to conduct life insurance business in Australia.  Permitting a foreign life insurer to establish a branch in Australia to conduct life insurance business requires special provisions to be inserted in the Life Act.

133.           Section 16ZD.  For an entity to establish a branch in Australia for the purpose of carrying on life insurance business, it must be incorporated in a foreign country, be authorised to carry on life insurance business in that foreign country, or part of that foreign country, and meet the conditions contained in the regulations of the Life Act.  These regulations may include a list of countries, determined by the Government, in which a foreign life insurer must be incorporated and authorised to be eligible to establish a branch in Australia.

134.           Section 16ZE.  When a foreign life insurer is authorised to establish a branch in Australia, authority is conveyed on the incorporated entity.  However, the provisions of the Life Act apply only to the business of the branch, that is, the life business conducted by the foreign insurer in Australia.

135.           Section 16ZF.  To conduct life insurance business through a branch in Australia, the branch must establish a Compliance Committee.  The Compliance Committee must be invested by the Board of the parent company with the powers necessary to ensure it can meet the requirements placed upon directors of locally incorporated life insurance companies under the Life Act and associated prudential standards.

136.           Section 16ZG.  A life insurance branch must provide APRA with an address for service in Australia.  The Life Act does not contain a similar requirement for locally incorporated insurers, with APRA relying on the Acts Interpretation Act 1901 to ensure insurers provide it with an address for service.

Items 2, 3, 4

137.           An amendment is required to paragraphs 31(c) and (d) of the Life Act to ensure the provisions of the Life Act in relation to statutory funds do not apply to the overseas operations of foreign companies with branches in Australia.

Item 5

138.           An amendment is required to section 76 of the Life Act to ensure the provisions of the Life Act in relation to financial records of overseas funds do not apply to the overseas operations of foreign companies with branches in Australia.

Item 6

139.           An amendment is required to section 92 of the Life Act to indicate that references to a director in this section refer to a member of the Compliance Committee when the entity in question is a branch.

Item 7

140.           An amendment is required to section 113 of the Life Act to ensure the provisions of the Life Act in relation to annual actuarial investigations do not apply to the overseas operations of foreign companies with branches in Australia.

Item 8

141.           An amendment is required to section 165 of the Life Act to ensure the provisions of the Life Act in relation to the vesting of managerial powers to a judicial manager do not apply to the overseas operations of foreign companies with branches in Australia.

Item 9

142.           An amendment is required to section 230B of the Life Act to indicate that references to a director in this section refer to a member of the Compliance Committee when the entity in question is a branch.

Item 10

143.           An amendment is required to subsection 230F(5) of the Life Act to indicate that references to a director in this subsection refer to a member of the Compliance Committee when the entity in question is a branch.

Item 11, 12

144.           An amendment is required to subsection 235(1) and (2) of the Life Act to ensure that the provisions of the Life Act in relation to injunctions apply to members of the Compliance Committee of a branch.

Items 13, 14

145.           Amendments to subsections 235(3) and 235(5) of the Life Act are required to take account of the amendments to subsection 235(1) and (2).

Items 15, 16, 17, 18

146.           Amendment to subsection 235(7) and 235(8) are necessary to ensure that the provisions of these subsections extend to the members of the Compliance Committee of a life insurance branch.

 

 

Item 19

147.           An amendment is required to subsection 242(1) of the Life Act to ensure that the provisions of the Life Act in relation to voting by post by non-shareholder members of life companies do not apply to the overseas operations of foreign companies with branches in Australia.

Item 20

148.           An amendment is required to subsection 245 of the Life Act to indicate that references to a director in this section refer to a member of the Compliance Committee when the entity in question is a branch.

Items 21, 22

149.           Amendments to the Schedule.  The definition of a company is extended to include an eligible foreign life insurance company.

Item 23

150.           Amendment to the Schedule.  A definition of a Compliance Committee is added.  A Compliance Committee has the meaning given by subsection 16ZF(1).

Item 24

151.           Amendment to the Schedule.  The meaning of the word ‘director’ in relation to an eligible life insurance company, means a member of the Compliance Committee of the company.

Item 25

152.           Amendments to the Schedule.  A definition of an eligible foreign insurance company is added.  It has the meaning given to it by section 16ZD.

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 5 - Foreign Acquisitions and Takovers

 

Item 1:  Subsection 5(1)

153.           This item inserts into subsection 5(1) a definition of foreign government investor , with reference to the actual definition at clause 17F.

Item 2:  Subsection 5(1)

154.           This item inserts into subsection 5(1) a definition of prescribed foreign government investor , with reference to the actual definition at clause 17G.

Item 3:  Subsection 5(1)

155.           This item inserts into subsection 5(1) a definition of prescribed foreign investor , with reference to the actual definition at clause 17E.

Item 4:  Subsection 5(1)

156.           This item inserts into subsection 5(1) a definition of prescribed sensitive sector , with reference to the actual definition at clause 17H.

Item 5:  Subsection 13B(1)

157.           This item amends subsection 13B(1) to extend its application to proposed Part IA (see Item 9) in determining the value of a corporation’s total assets, in relation to the application of sections 18 and 26 to prescribed foreign investors or prescribed foreign government investors.

Item 6:  Subsection 13B(4)

158.           This item amends subsection 13B(4) to extend its application to proposed Part IA (see Item 9) in determining the value of a business’ total assets, in relation to the application of section 19 to prescribed foreign investors or prescribed foreign government investors.

Item 7:  Subsection 13B(5)

159.           This item amends subsection 13B(5) to extend its application to proposed Part IA (see Item 9) in determining the value of a corporation’s total assets, in relation to the application of section 20 to prescribed foreign investors or prescribed foreign government investors.

Item 8:  Subsection 13B(6)

160.           This item amends subsection 13B(6) to extend its application to proposed Part IA (see Item 9) in determining the value of a business’ total assets, in relation to the application of section 21 to prescribed foreign investors or prescribed foreign government investors.

Item 9:  After Part I

161.           This item inserts a new Part IA - Exempt Foreign Investments

Clause 17A:  Exempt foreign investments in prescribed corporations etc

162.           Subclause 17A(1) provides that, for the purposes of section 18, eligible prescribed foreign investors and prescribed foreign government investors are not foreign persons and are exempt from possible action by the Treasurer under this section.  Eligibility is determined by reference to subclauses 17B(1) and (2) and 17C(1), as applicable.

163.           Subclause 17A(2) provides that, for the purposes of section 20, eligible prescribed foreign investors and prescribed foreign government investors are not foreign persons and are exempt from possible action by the Treasurer under this section.  Eligibility is determined by reference to subclauses 17B(1) and (2) and 17C(1), as applicable.

164.           Subclause 17A(3) provides that, for the purposes of sections 19 and 21, eligible prescribed foreign investors and prescribed foreign government investors are not foreign persons and are exempt from possible action by the Treasurer under these sections.  Eligibility is determined by reference to subclauses 17B(3) and 17C(2), as applicable.

165.           Subclause 17A(4) provides that, for the purposes of section 26, eligible prescribed foreign investors and prescribed foreign government investors are not foreign persons and are exempt from the compulsory notification requirements of this section.  Eligibility is determined by reference to subclauses 17B(1) and (2) and 17C(1), as applicable.

166.           Subclause 17A(5) provides that, as specified, subclauses 17A(1), (2) and (3) do not have effect for the purposes of determining the application of sections 18, 19, 20, 21 and 26 to an entity that is neither a prescribed foreign investor nor a prescribed foreign government investor. 

167.           The specified circumstances include in determining whether 2 or more persons (whether or not associates under the Act):

·                      hold an aggregate controlling interest in a corporation;

·                      together are in a position to control an amount of the voting power in a corporation;

·                      together hold interests in the issued shares in a corporation;

·                      together are in a position to determine the policy of a business or corporation.

168.           This establishes that a relevant interest held by a prescribed foreign investor or a prescribed foreign government investor is considered in determining whether action could be taken in relation to a non-exempt entity.  For example, shares held by a prescribed foreign investor would be relevant in determining whether an acquisition by a non-prescribed foreign investor resulted in a change in the foreign persons exercising control of an Australian business.  It is not intended to provide an avenue for action to be taken in relation to eligible investors contrary to subclauses 17A(1), (2), (3) and (4).

Clause 17B:  Asset thresholds for exempt investments in prescribed corporations etc - prescribed foreign investors.

169.           Subclause 17B(1) provides for regulations to be made that determine the value of a corporation’s total assets below which a prescribed foreign investor is exempt from the application of sections 18, 20 and 26, in those circumstances where the corporation, or a subsidiary of the corporation, operates wholly or partly in a prescribed sensitive sector in relation to a prescribed foreign investor. 

170.           The subclause establishes the actual value of a corporation’s total assets is to be calculated with regard to whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d), (e) or (f):

171.           as provided for in relation to those paragraphs.

172.           Regulations may determine separate amounts dependent on whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d), (e) or (f)

173.           Subclause 17B(2) provides for regulations to be made that determine the value of a corporation’s total assets below which a prescribed foreign investor is exempt from the application of sections 18, 20 and 26, in those circumstances where the corporation, or a subsidiary of the corporation, does not operate either wholly or partly in a prescribed sensitive sector in relation to a prescribed foreign investor. 

174.           The subclause establishes the actual value of a corporation’s total assets is to be calculated with regard to whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d) (e) or (f).

175.           as provided for in relation to those paragraphs.

176.           Regulations may determine separate amounts dependent on whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d), (e) or (f).

177.           Subclause 17B(3) provides for regulations to be made that determine the value of a business’ total assets below which a prescribed foreign investor is exempt from the application of sections 19 and 21, in those circumstances where the business:

a)                   is wholly or partly in a prescribed sensitive sector in relation to a prescribed foreign investor; or

b)                   is neither wholly nor partly in a prescribed sensitive sector in relation to a prescribed foreign investor.

153.           The subclause establishes that, in either case, the actual value of a business’ total assets is to be calculated with regard to section 13B.

154.           Subclause 17B(4) establishes that regulations made under clause 17B may provide for different amounts to be established for different prescribed foreign investors dependant on the kind of prescribed foreign investor, the kind of prescribed sensitive sector concerned (as applicable), the kind of corporation concerned (as applicable), the kind of business concerned (as applicable) and any other matter.

155.           Subclause 17B(5) provides that regulations made under clause 17B may provide for a method of indexing an amount.

156.           Subclause 17B(6) establishes that subclauses 17B(4) and (5) do not limit the regulations that may be made for the purposes of this clause.

Clause 17C:  Asset thresholds for exempt investments in prescribed corporations etc. - prescribed foreign government investors

157.           Subclause 17C(1) provides for regulations to be made that determine the value of a corporation’s total assets below which a prescribed foreign government investor is exempt from the application of sections 18, 20 and 26. 

158.           The subclause establishes the actual value of a corporation’s total assets is to be calculated with regard to whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d), (e) or (f):

159.           as provided for in relation to those paragraphs.

160.           Regulations may determine separate amounts dependent on whether the corporation is a prescribed corporation within the meaning of:

·                      paragraph 13 (1) (a), (b), (c), (g) or (h); or

·                      paragraph 13 (1) (d), (e) or (f).

161.           Subclause 17C(2) provides for regulations to be made that determine the value of a business’ total assets below which a prescribed foreign government investor is exempt from the application of sections 19 and 21.  The subclause establishes that the actual value of a business’ total assets is to be calculated with regard to section 13B.

162.           Subclause 17C(3) establishes that regulations made under clause 17C may provide for different amounts to be established for different prescribed foreign government investors dependant on the kind of prescribed foreign government investor, the kind of corporation concerned (as applicable), the kind of business concerned (as applicable) and any other matter.

163.           Subclause 17C(4) provides that regulations made under clause 17C may provide for a method of indexing an amount.

164.           Subclause 17C(5) establishes that subclauses 17C(3) and (4) do not limit the regulations that may be made for the purposes of this section.

Clause 17D:  Exempt foreign investments in financial sector companies etc.

165.           Subclause 17D(1) provides that a prescribed foreign investor covered by subclause 17D(5) is exempt from the application of section 18 in relation to a corporation that is a financial sector company.

166.           Subclause 17D(2) provides that a prescribed foreign investor covered by subclause 17D(5) is exempt from the application of section 26 in relation to a corporation that is a financial sector company.

167.           Subclause 17D(3) establishes that for a prescribed foreign investor to be covered by clause 17D it must satisfy any conditions specified in regulations made under this sub-clause.  This sub-clause provides for regulations to be made for this purpose, and allows for regulations to identify classes of prescribed foreign investor in relation to which subclauses 17D(1) and (2) apply.

168.           Subclause 17D(4) provides that, as specified, subclauses 17D(1) and (2) do not have effect for the purposes of determining the application of sections 18 and 26 to an entity that is not a prescribed foreign investor. 

169.           The specified circumstances include in determining whether 2 or more persons (whether or not associates under the Act):

·                      hold an aggregate controlling interest in a corporation;

·                      together are in a position to control an amount of the voting power in a corporation;

·                      together hold interests in the issued shares in a corporation;

·                      together are in a position to determine the policy of a business or corporation.

170.           This establishes that a relevant interest held by a prescribed foreign investor is considered in determining whether action could be taken in relation to a non-exempt entity.  For example, shares held by a prescribed foreign investor would be relevant in determining whether an acquisition by a non-prescribed foreign investor resulted in a change in the foreign persons exercising control of an Australian business.  It is not intended to provide an avenue for action to be taken in relation to an eligible foreign investor contrary to subclauses 17D(1) and (2).

171.           Subclause 17D(5) inserts a meaning for financial sector company, and determines this to be the same as in the Financial Sector (Shareholdings) Act 1998 .

Clause 17E:  Prescribed foreign investor

172.           Subclause 17E(1) establishes that an entity is a prescribed foreign investor if:

·                      the conditions specified in the regulations are satisfied in relation to the entity; and

·                      the entity is not a foreign government investor.

173.           This subclause provides for regulations to be made for this purpose, and allows for, among other things, classes of prescribed foreign investor to be identified or for all investors that are foreign persons to be specified as prescribed foreign investors.  This supports differential treatment of classes of foreign investor in relation to prescribed sensitive sectors (clause 17G), establishment of exemption thresholds (clause 17B) and provision of the exemption in relation to financial sector companies (clause 17D).

174.           Subclause 17E(2) provides that the conditions specified in regulations made for the purposes of subclause 17E(1) may include a condition that the entity be:

·                      a national of a specified foreign country;

·                      incorporated under the law of a specified foreign country or a specified part of a foreign country;

·                      constituted or organized under the law of a specified foreign country or a specified part of a foreign country.

175.           Subclause 17E(3) establishes that subclause 17E(2) does not limit the regulations that may be made for the purposes of subclause 17E(1).

176.           Subclause 17E(4) defines entity to include an individual for the purposes of the clause.

 

Clause 17F:  Foreign government investor

177.           Clause 17F establishes that an entity is a foreign government investor if:

a)                   the entity is a body politic (or part of a body politic) of a foreign country (or part of a  foreign country);

b)                   the entity is controlled by an entity mentioned in paragraph (a); or

c)                   an entity mentioned in paragraph (a) holds an interest in the entity that specifies the conditions specified in the regulations.

153.           This clause provides for regulations to be made specifying the types of interest a foreign government investor may hold in an entity for that entity to be regarded as a foreign government investor.

Clause 17G:  Prescribed foreign government investor

154.           Clause 17G establishes that an entity is a prescribed foreign government investor if:

a)                   the entity is a foreign government investor; and

b)                   the conditions specified in the regulations are satisfied in relation to the entity.

153.           This clause provides for regulations to be made for this purpose, and allows for classes of prescribed foreign government investor to be identified.  This supports differential treatment of classes of prescribed foreign government investor in relation to the exemption thresholds under clause 17C.

Clause 17H - Prescribed sensitive sector

154.           Clause 17H establishes that a kind of business activity is a prescribed sensitive sector in relation to a prescribed foreign investor if the conditions specified in the regulations are satisfied in relation to:

a)                   the prescribed foreign investor; and

b)                   the kind of business activity.

208.           This clause provides for regulations to be made for this purpose, and allows for specification of the kinds of business activity to comprise a prescribed sensitive sector and to associate different prescribed sensitive sectors with different classes of prescribed foreign investor.  This supports the establishment of different exemption thresholds for sensitive and other sectors and for combinations of classes of sensitive sectors and prescribed foreign investors under clause 17B.

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 6 - Commonwealth Authorities and Companies

 

Clause 47A - Compliance with government procurement requirements

 

209.           The purpose of this clause is to empower the Finance Minister to issue directions to the directors of Commonwealth authorities and wholly-owned Commonwealth companies regarding procurement. This, in particular, assists with compliance with Australia’s government procurement obligations under international agreements. Subclause (1) limits the extent of the direction making power to those Commonwealth authorities and wholly-owned Commonwealth companies specified in the regulations. The directors of the affected Commonwealth authorities and wholly-owned Commonwealth companies are obliged to ensure that their authority or company and, as far as practicable, any subsidiaries, comply with the directions. Subclause (4) clarifies that the directions may apply, adopt or incorporate some or all of the Commonwealth Procurement Guidelines, issued by the Finance Minister under the Financial Management and Accountability Regulations 1997 .

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 7 - Therapeutic Goods

 

210.           Item 1 replaces the existing provision that requires the Secretary to inform an applicant about whether or not its application to register therapeutic goods has been approved, and if not to provide reason­s for not approving the application, or where approval is granted, to register the goods in the Australian Register of Therapeutic Goods (the Register).  The new provision takes into account changes made by new Item 6, which requires an applicant seeking to include therapeutic goods (other than therapeutic devices) in the Register to provide a certificate in certain circumstances.   The new certification requirements specifically exclude applications for the registration of therapeutic devices under section 23 of the Act.

 

211.           The new provisions insert new subsections 25(3), (4) and (4A) into the Therapeutic Goods Act 1989 (the Act).  New Subsection 25(3) provides that after the Secretary has completed an evaluation of therapeutic devices under s.25 of the Act, the Secretary is required to give written notification to the applicant informing the applicant whether or not the devices may be included in the Register.  The decision to approve or refuse to approve an application must be given in writing within 28 days of making the decision, and if the decision is to refuse registration, the Secretary must provide reasons for that decision.  If the decision is to approve registration of the device, the Secretary must include the device in the Register and give the applicant a certificate of registration for the goods.  The arrangements in relation to therapeutic devices are not changed by these amendments. 

 

212.           New subsection 25(4 ) covers registrable therapeutic goods that are not therapeutic devices.  These are goods in relation to which the new certification requirements apply.  Where an evaluation of these goods has been completed, again the Secretary is required to give written notification to the applicant informing the applicant whether or not the goods may be included in the Register. The decision to approve or refuse to approve an application must be given in writing within 28 days of making the decision, and if the decision is to refuse registration, the Secretary must provide reasons for that decision.  Where the Secretary decides to approve the application to register therapeutic goods in the Register, the Secretary must give written notification to the applicant that the goods will be included in the Register if the applicant gives the Secretary the certificate required under new subsection 26B(1), inserted by Item 6. 

 

213.           Where the applicant has provided to the Secretary the certificate required under new subsection 26B(1), the Secretary must include the goods in the Register without inquiring into the correctness of the certificate, and to give the applicant a certificate of registration for the goods. 

 

 

 

214.           New subsection 25(4A) provides that civil proceedings will not lie against the Secretary, or his/her delegate, where the Secretary includes therapeutic goods in the Register in reliance upon the certificate given by an applicant to the Secretary under subsection 26B(1), and another party has or claims to have suffered loss, damage or injury of any kind as a result of the inclusion of the goods in the Register.

 

215.           Items 2 and 3 make changes to the process for including in the Register export-only medicines.  Again, these changes have been inserted to accommodate new requirements for a certificate to be lodged under new subsection 26B(1) in connection with the inclusion of export-only medicines in the Register. 

 

216.           Item 2 provides that where an application is lodged under section 23 for the purposes of subsection 26(1) of the Act to include listable medicines not intended for supply in Australia and intended only for export from Australia, it must be accompanied by the certificate referred to in new subsections 26B(1). 

 

217.           Item 3 inserts new subsections 26(1A) and (1B).  New subsection 26(1A) provides that where an application is made to include export-only medicines and the requirements of subsection 26(1) have been met and the application is also accompanied by the certificate required under subsections 26B(1), the Secretary must include the export-only medicines in the Register without inquiring into the correctness of those certificates.  New subsection 26(1B) provides that civil proceedings will not lie against the Secretary, or his/her delegate, where the Secretary lists the goods under section 26 in reliance upon the certificate given by an applicant to the Secretary under subsection 26B(1), and another party has or claims to have suffered loss, damage or injury of any kind as a result of the listing of the goods.

 

218.           Items 4 and 5 make changes to the approval process for including listable medicines in the Register under s.26A of the Act.  “Listable” medicines are, in the main, low risk therapeutic goods that require a different assessment process for the purposes of being granted marketing approval, than higher risk “registrable” therapeutic goods, such as prescription medicines that are intended for use in the treatment of serious medical conditions.  Under s.26A applicants electronically lodge their applications to include their goods in the Register, and all applications are electronically processed.  Under this process therapeutic goods are directly entered onto the Register electronically on the basis of the certifications made by the sponsor under subsection 26A(2)(a)-(k). 

 

219.           Item 4 makes it clear that an application for listing of a medicine lodged under section 23 for the purposes of section 26A must also be accompanied by the certificate required under new subsection 26B(1). 

 

220.           Item 5 inserts new subsections 26A(1A) and (1B ).  New subsection 26A(1A) provides that if an application is made to list medicines of a kind described under subsection 26A(1) and the requirements of subsection 26A(2) and where applicable (3) are met and the application is also accompanied by the certificate required under new subsection 26B(1), then the Secretary must list the goods in the Register without inquiring into the correctness of the s.26B(1) certificate. New subsection 26A(1B) provides that civil proceedings will not lie against the Secretary, or his/her delegate, where the Secretary includes the goods in the Register under section 26A in reliance upon the certificate given by an applicant to the Secretary under subsection 26B(1), and another party has or claims to have suffered loss, damage or injury of any kind as a result of the inclusion of the goods in the Register. 

 

221.           Item 6 inserts new section 26B which provides for what certificate is required to be provided by an applicant in accordance with sections 25, 26 and 26A of the Act. 

 

222.           New subsection 26B(1) (a) provides that where an applicant is seeking to have therapeutic goods included on the Register, the applicant must provide a certificate to the effect that they are not marketing, and do not propose to market, those therapeutic goods in a way or in circumstances that would infringe a patent that has been granted in relation to the therapeutic goods.

 

223.           New subsection 26B(1)(b) provides where an applicant is seeking to have therapeutic goods included on the Register, the applicant must provide a certificate to the effect that a patent has been granted in relation to the therapeutic goods and that the applicant proposes to market the therapeutic goods before the expiry of the patent for such goods and the applicant has notified the patent owner of its application to include goods in the Register.

 

224.           New subsection 26B(2) provides that the certificate required under subsection 26B(1) is required to be signed by, or on behalf of, the applicant and in a form approved by the Secretary.

 

225.           New subsection 26B(3) creates an offence for an applicant to lodge a certificate that is required under subsection 26B(1) and the certificate is false or misleading in a material particular.  The maximum penalty for this offence is 1,000 penalty units.  The Criminal Code Act 1995 (the Criminal Code) provides that ‘recklessness’ is the necessary mental element which would apply to the false or misleading nature of the certificate provided by the applicant.  Subsection 5.6(2) of the Criminal Code provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.  Recklessness can be established by proving intention, knowledge or recklessness (see subsection 5.4(4) of the Criminal Code).

 

226.           New subsection 26B(4) provides that for the purposes of section 26B, a patent is taken to have been granted in relation to the therapeutic goods, if marketing of the therapeutic goods without the authority of the patentee would constitute an infringement of that patent.  The term patent granted in relation to the therapeutic goods is intended to cover a patent on the therapeutic good, a component of the therapeutic good, or a product for an approved use, where the approved use is claimed in a patent.

 

227.           New subsection 26B(5) inserts a definition for ‘patent’ to ensure that the word has the same meaning as ‘patent’ under the Patents Act 1990

 

228.           Item 7 states that the changes made to the Act by this Schedule apply to new applications that are lodged under section 23 of the Act on or after the day this Schedule comes into force.

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 8 - Patents

 

Items 1 and 2

 

229.           These items amend section 59 of the Patents Act to provide that the grant of a patent can be opposed on the ground that the invention is not a patentable invention.  The effect of this amendment is to include the patentability requirements that an invention be useful and not secretly used, as grounds on which the grant of the patent can be opposed (or refused).  This amendment will ensure that these criteria will continue to be grounds on which a patent can be revoked. 

 

Items 4 and 5

 

230.           These items delete subsection 104(3) and paragraph 138(3)(c) of the Patents Act respectively.  These provisions relate to patents that are subject to conditions.  Patents are no longer granted subject to conditions and therefore this ground of revocation is no longer necessary.

 

 

 



US FREE TRADE AGREEMENT IMPLEMENTATION BILL 2004

 

 

Schedule 9 - Copyright

 

Commencement

231.           This clause provides for the commencement of the Schedule 9 copyright provisions of the Bill.  It does so by reference to a table set out in subclause 2(1).

232.           Item 9 of the table provides that Schedule 9, Part 1 commences on

1 January 2005.  Item 10 of the table provides that Schedule 9, Part 2 commences on the day that the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty 1996 comes into force for Australia.  This date must be announced by notice in the Gazette.  Item 11 of the table provides that Schedule 9, Parts 3 and 4 commence on the earlier of the time at which the provisions covered by table item 2 commence or the day that the WPPT enters into force. Item 12 of the table provides that Schedule 9, items 107 to 112 commence on 1 January 2005.  Item 13 of the table provides that Schedule 9, item 113 commences on the day on which the Bill, when passed, receives the Royal Assent.  Item 14 of the table provides that items 114 to 119 of Schedule 9 commence on 1 January 2005.  Item 15 of the table provides that item 120 of Schedule 9 commences at the same time as the provisions covered by table item 2. However, if that time is the same time as the provisions covered by table item 12, then item 120 commences immediately after those provisions commence. This reflects that item 120 of Schedule 9 makes an amendment to sub-s33(2) of the Copyright Act 1968 as amended by item 107 of Schedule 9. Item 16 of the table provides that item 121 of Schedule 9 commences at the same time as the provisions covered by table item 2.  Item 17 of the table provides that item 122 of Schedule 9 commences at the same time as the provisions covered by table item 2. However, if that time is the same time as the provisions covered by table item 12, then item 122 commences immediately after those provisions commence. This reflects that item 122 of Schedule 9 makes an amendment to sub-s34(1) of the Copyright Act as amended by item 109 of Schedule 9.  Item 18 of the table provides that items 123 to 166 of

Schedule 9 commence at the same time as the provisions covered by table item 2. Item 19 of the table provides that item 167 of Schedule commences on the day on which the Bill, when passed, receives the Royal Assent.  Item 20 of the table provides that items 168 to 192 of Schedule 9 commence at the same time as the provisions covered by table item 2.

233.           Subclause 2(2) stipulates that column 3 of the table in subclause 2(1) may contain additional information that may be printed with the Act but such information is not part of the operative provisions of the Act.

Clause 3          Schedule(s)

234.           By virtue of this clause, the provisions in the Copyright Act 1968 are amended or repealed as set out in Schedule 9 of the Bill.



Part 1              Performers’ rights in sound recordings

 

Copyright Act 1968

Item 1             Paragraph 22(3)(a)

235.           This item amends paragraph 22(3)(a) to insert the words ‘other than a sound recording of a live performance’ after ‘sound recording’.

236.           This amendment preserves the existing copyright ownership arrangements for sound recordings other than sound recordings of live performances as defined by new sub-s22(7). This would include recordings of the sounds of nature or machinery, or people when not engaged in a performance, for example, crowd noises.

237.           New copyright ownership arrangements for sound recordings of live performances are introduced by item 2.

238.           Headings to sub-ss22(1) and 22(3) are also inserted.

Item 2             After subsection 22(3)

239.           This item inserts new sub-ss22(3A), 22(3B) and 22(3C).

240.           Articles 7 to 10 of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty 1996 (WPPT) require contracting parties to provide performers with economic rights in their performances embodied in sound recordings. Currently the Copyright Act 1968 (the Act) does not provide performers with such rights. The amendments in Part 1 grant performers exclusive rights in their performances embodied in sound recordings, by extending the concept of a maker of a sound recording of a live performance to also include a performer. By the operation of sub-s97(2), the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of Part IV of the Act.  Performers own copyright in their sound recordings with the owners of the master recording as tenants in common.

241.           New sub-s22(3A) provides that the makers of a sound recording of a live performance are the person or persons who, at the time of the recording own the record on which the recording is made and the performer or performers who performed in the performance embodied in the sound recording. Paragraph (b) specifically provides that a performer is not a maker under paragraph (b) if they are also a maker under paragraph (a).

242.           A note to sub-s22(3A) indicates that a performer may be liable to pay compensation under s116AAA to a person who owns the record on which the recording is made. Section 116AAA provides for compensation to be paid where the amendments to sub-ss 22(3A) and 97(2) and (2A) would result in an acquisition of property otherwise than on just terms.

243.           New sub-s22(3B) provides that if a sound recording is made of a live performance, and the performer performs under the terms of his or her employment, then the employer is taken to be a maker instead of the performer. This subsection is similar in result to the existing default provisions for ownership of copyright in works created under a contract of employment in sub-s35(6).

244.           New sub-s22(3C) provides that sub-s22(3B) may be excluded or modified by agreement between the performer and the employer.

245.           Headings to sub-ss22(4) and 22(5) are also inserted.

Item 3             At the end of section 22

246.           This item inserts a new sub-s22(7). This provision inserts definitions of live performance, performer and sound recording of a live performance for the purposes of s22.

247.           The definition of live performance is based on the current categories of performance in the definition of performance in Part XIA and extends those categories to an expression of folklore, as required by article 2(a) of the WPPT.

248.           The definition of performer in a live performance means each person who contributed to the sounds of the performance, and where the performance includes a performance of a musical work, the conductor. This definition clarifies that with the exception of a conductor, any participant in a performance who does not contribute to the sounds of a performance, such as a person who dances silently, or a person who turns the pages of sheet music, would not come within the definition of performer.

249.           A sound recording of a live performance is defined as a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

Item 4             Section 84

250.           This item repeals s84 and substitutes a new s84. The new provision inserts definitions of live performance, performer, qualified person and sound recording of a live performance, for the purposes of Part IV of the Act.

251.           The definition of live performance is based on the current categories of performance in the definition of performance in Part XIA and extends those categories to an expression of folklore, as required by article 2(a) of the WPPT.

252.           The definition of performer in a live performance means each person who contributed to the sounds of the performance, and where the performance includes a performance of a musical work, the conductor. This definition clarifies that with the exception of a conductor, any participant in a performance who does not contribute to the sounds of a performance, such as a person who dances silently, or a person who turns the pages of sheet music, would not come within the definition of performer.

253.           A qualified person is defined as an Australian citizen, an Australian protected person, or a person, other than a body corporate, who is resident in Australia, or a body corporate incorporated under a law of the Commonwealth or a State. The definition replicates the previous definition in s84.

254.           A sound recording of a live performance is defined as a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.

Item 5             Before section 97

255.           This item inserts the subdivision heading.

Subdivision A - Ownership of copyright in subject-matter other than works

Item 6             Subsection 97(2)

256.           This item is a minor drafting amendment to address the addition of a new sub-s97(2A).

Item 7             After subsection 97(2)

257.           This item inserts a new sub-s97(2A). New sub-s97(2A) provides that if there is more than one owner of copyright in a sound recording of a live performance, then those owners own the copyright as tenants in common in equal shares. As sub-s97(1) provides that s97 is subject to Parts VII (The Crown) and X (Miscellaneous) this amendment will only provide a default provision in the absence of any agreement to transfer or assign the copyright in accordance with s196.

258.           The new provision does not affect the way in which more than one owner of a copyright in a sound recording, that does not include or consist of a live performance, holds the copyright.

Item 8            At the end of Division 5 of Part IV

259.           This item inserts Subdivision B.

Subdivision B - Specific provisions relating to the ownership of copyright in pre-commencement sound recordings of live performances

 

260.           Subdivision B relates to pre-commencement sound recordings of live performances. By applying the provisions of article 18 of the Berne Convention for the Protection of Literary and Artistic Works 1971 (Berne Convention), article 22 of the WPPT requires performers’ rights in their performances embodied in sound recordings to be applied to all existing sound recordings of live performances that have not yet fallen into the public domain.

261.           As a result of implementing this requirement, there is a possibility that the amendments to s22 and s97 may be characterised as laws that give rise to an acquisition of property other than on just terms under sub-s51(xxxi) of the Constitution, and thus be held invalid. To address this situation, Subdivision B provides a scheme for pre-commencement sound recordings of live performances that complies with the requirements for retrospectivity in article 22 of the WPPT, while avoiding characterisation as a law that gives rise to an acquisition of property on other than just terms.

New 100AA               Application

262.           This provision provides that the Subdivision applies to a sound recording of a live performance if copyright subsists in the sound recording on the day of commencement and at least one person would become a maker of the recording under paragraph 100AD(1)(b) or sub-s100AD(2).

New 100AB                Definitions

263.           This provision provides, for the purposes of the Subdivision, definitions of former owner and new owner.

264.           A former owner of the copyright in a sound recording of a live performance means a person mentioned in paragraph 100AD(1)(a) (the person or persons who, immediately before the commencement of the section, owned the copyright subsisting in the sound recording.)

265.           A new owner of the copyright in a sound recording of a live performance means a person who becomes a maker of a sound recording under paragraph 100 AD(1)(b) (the performer or performers who performed in the performance, other than a performer who falls within paragraph 100AD(1)(a).  If sub-s100AD(2) applies, an employer who becomes a maker of a sound recording under that subsection will also fall within the definition of a new owner.

New 100AC               Application of sections 100AD and 100AE

266.           This provision provides that ss100AD and 100AE have effect subject to Parts VII (The Crown) and X (Miscellaneous).

New 100AD               Makers of pre-commencement sound recordings of live performances

267.           Paragraph 100AD(1)(a) provides that the makers of a sound recording of a live performance are the person or persons who, immediately before the commencement of the section, owned the copyright subsisting in the sound recording.

268.           Paragraph 100AD(1)(b) provides that the maker of a sound recording is also the performer or performers who performed in the performance, other than a performer who falls within paragraph (a).

269.           Subsection 100AD(2) provides that if a sound recording was made of a live performance, and the performer performed under the terms of his or her employment, then the employer is taken to be a maker instead of the performer. This subsection is similar in result to the existing default provisions for ownership of copyright in works created under a contract of employment in sub-s35(6).

270.           Subsection 100AD(3) provides that sub-s100AD(2) may be excluded or modified by agreement, whether made before or after the live performance, between the performer and the employer.

271.           These provisions reflect the reasoning discussed at item 2.

New 100AE                Ownership of pre-commencement copyright in sound recordings of live performances

272.           New sub-s100AE(1) provides that on and after the day on which this section commences, all makers of a sound recording of a live performance are owners of any copyright subsisting in the recording by virtue of this Part. This subsection operates on a similar basis as current sub-s97(2) in that it provides that all makers of the sound recording are owners of copyright.

273.           New sub-s100AE(2) provides that the former owners of the copyright, and the new owners of the copyright, as defined by s100AB, each own half of the copyright as tenants in common in two equal shares. This provision differs from the new sub-s97(2A), as all makers do not share equally, but rather any owners who are makers by virtue of their ownership of copyright before commencement will collectively hold 50% of the copyright, and owners who are makers by virtue of their status as performers or employers of performers will collectively hold 50% of the copyright.

274.           New sub-s100AE(3) provides that any owners who are makers by virtue of their ownership of copyright before commencement will hold their collective share in the same proportions as the whole copyright was owned by them immediately before the commencement of the section. This provision is intended to preserve the existing arrangements between former owners of copyright.

275.           New sub-s100AE(4) provides that owners who are makers by virtue of their status as performers or employers of performers will hold their collective share as tenants in common in equal shares.

276.           New sub-s100AE(5) provides that subsections (3) and (4) do not limit the ability to transfer or assign copyright under s196.

277.           New sub-s100AE(6) provides that subsection (3) does not otherwise affect the terms on which the former owners own their half of the copyright.

278.           New sub-s100AE(7) provides that if a new owner is not alive on the commencement of the section, then for the purposes of subsections (2) and (4), that owner is replaced by the person to whom the copyright would have devolved if the new owner had owned the copyright immediately before his or her death. If the copyright would have devolved to more than one person, those persons are to be treated as a single new owner for the purposes of subsections (2) and (4).

New 100AF                Former owners may continue to do any act in relation to the copyright

279.           New s100AF provides that the owner can, subject to any agreement between the former owner and the new owner, do any act comprised in the copyright, or any other act in relation to the copyright as if each new owner had granted a licence or permission to the former owner to do the act.

280.           This provision does not remove the necessity to obtain the consent of other former owners to do the act.

281.           New sub-s100AF(2) provides that subsection (1) applies to the former owner’s licensees and successors in title, persons authorised by the former owner, and persons authorised by the former owner’s licensees or successors in title in the same way as it applies to the former owner.

282.           New subsection 100AF(3) provides that subsections (1) and (2) may be excluded or modified by agreement, whether made before or after the section commences, between a former owner and a new owner.

New 100AG               Actions by new owners of copyright

283.           New s100AG sets out the remedies that a new owner of copyright is not entitled to receive when bringing an action under the Act. In an action under s115, and ss116A, 116B and 116C the new owner is not entitled to receive the remedies of damages or an account of profits. In an action under s116, the new owner is not entitled to receive damages, an account of profits, any pecuniary remedy other than costs or delivery up of an infringing copy. However, a new owner may still be granted an injunction or additional damages where appropriate.

New 100AH               References to the owner of the copyright in a sound recording

284.           New s100AH provides that a new owner of the copyright is taken not to be the owner of the copyright in a sound recording of a live performance in certain provisions in the Act. These provisions are s107 (making a copy of a sound recording for the purpose of broadcasting), s108 (causing a published sound recording to be heard in public), s109 (making a broadcast of a published sound recording), s119 (the rights of action of an exclusive licensee), s133 destruction or delivery up of infringing copies), sub-s136(1) (definition of licence or licensor), ss150, 151, 152, 153E, 153F, 153G, 159, and 163A (provisions relating to applications to the Copyright Tribunal relating to statutory licences), and s183 (use of copyright material for the services of the Crown).

285.           The note to new s100AH reflects that a new owner of the copyright in a sound recording of a live performance is not a relevant right holder under s135A, nor a relevant copyright owner under ss135ZB or 135ZZI.

Item 9             At the end of Division 7 of Part IV

New 113A                  Agents may act on behalf of groups of performers

286.           This provision is intended to provide a mechanism for obtaining permission from groups of performers, by adopting the common law rules of agency. New sub-s 113A(1) provides that the section applies to all members of a group who have an interest in the copyright in a sound recording of a live performance.  New sub-s113A(2) provides that all members of a group are taken to have granted a licence or permission to a person to do an act comprised in the copyright or to do any other act in relation to the copyright, if an agent of the group acting within the scope of his or her actual or apparent authority, has granted a licence or permission to the person to do the act.

287.           The note to this provision provides that the person may still need to seek the authority of other owners of copyright in the sound recording before doing the act.

New 113B                   Consent to the use of a sound recording of a live performance

288.           This provision provides that a sound recording can be used for its intended purpose if a performer has given his or her consent to its recording for a particular purpose. This provision is intended to address the situation where a performer has provided consent to make the recording for a particular purpose, but has not provided express consent for the recording to be used for that purpose. In this situation, the performer is taken to have consented to the recording and the use of the sound recording, provided that it is used in accordance with terms of the consent for the recording.

New 113C                  Use of published sound recordings when owners cannot be found etc.

289.           This provision provides a licence for an owner of the copyright in a published sound recording to do an act comprised in the copyright or any other act in relation to the copyright, where the other owners cannot be found.

290.           New sub-s113C(1) provides that an owner (the first owner) of copyright in a published sound recording is taken to have been granted a licence or permission to do an act comprised in the copyright, or any other act if the first owner has entered into an agreement with another person to do an act and the first owner, after making reasonable inquiries, cannot discover the identity or location of the other owner of the copyright or a person representing the other owner.

291.           New sub-s113C(2) provides that if the first owner does an act, then they must hold the other owner’s share of any amount received in respect of the act on trust for four years, unless the other owner is identified or located during that time.

292.           New sub-s113C(3) provides that if the other owner is identified and located within the four year period, then the first owner must distribute the amount held on trust to that owner. If at the end of the four year period, the other owner remains unidentified or unlocated, the first owner may retain the amount held on trust.

293.           New sub-s113C(4)  provides that after making reasonable inquiries the first owner is not required to continue making inquiries during the four year period.

294.           New sub-s113C(5) provides that the other owner cannot prevent the doing of the act by the first owner, if during the four year period the other owner is identified or located.

Item 10           At the end of Division 2 of Part V

New 116AAA                        Compensation for acquisition of property

295.           This item provides for compensation to be paid when the insertions of  sub-ss22(3A) and 97(2A) and the amendment to sub-s97(2) would result in an acquisition of property from a maker of a sound recording of a live performance by a performer in the performance other than on just terms.  The rights of a performer in a sound recording of their live performance are not affected by this provision.

296.           The item provides that where the granting to performers of copyright in sound recordings of their live performances would result in an acquisition of property, that performer shall pay to the maker an amount of compensation that is agreed between them, or failing agreement, that is determined by a court of competent jurisdiction.

297.           New sub-s116AAA(3) requires any remedy awarded in a proceeding that is commenced otherwise than under this section to be taken into account when an action for compensation is commenced otherwise than under this section that arises out of the same event or transaction.

298.           New sub-s116AAA(4) requires any compensation paid to be taken into account in assessing any remedy to be awarded in a proceeding that is commenced otherwise than under this section that arises out of the same event or transaction.

299.           New sub-s116AAA(5) inserts definitions of acquisition of property, just terms, maker and performer for the purposes of this section.

300.           The definition of performer is limited to persons who come within paragraph 22(3A)(b) or sub-s22(3B) and the definition of maker is limited to persons who come within paragraph 22(3A)(a). Thus the compensation scheme will not apply to former owners and new owners as defined by s100AB.

Item 11           At the end of section 123

301.           Item 11 inserts a note to s123 that provides that not all owners of the copyright are entitled to an account of profits. The reasoning for this note is the exclusion of certain remedies for actions taken by new owners in s100AG.

Item 12           At the end of section 124

302.           Item 12 inserts a note to s124 that provides that not all owners of the copyright are entitled to damages. The reasoning for this note is the exclusion of certain remedies for actions taken by new owners in s100AG.

Item 13           Section 135ZB (at the end of the definition of relevant copyright owner )

303.           This item amends s135ZB by excluding the new owners of the copyright in a sound recording as defined by s100AB of Subdivision B of Division 5 of Part IV. This amendment is a consequence of the amendments made to that Subdivision.

Item 14           Section 135ZZI (at the end of the definition of relevant copyright owner )

304.           This item amends s135ZZI by excluding the new owners of the copyright in a sound recording as defined by s100AB of Subdivision B of Division 5 of Part IV. This amendment is a consequence of the amendments made to that Subdivision.

Item 15           Application

305.           The amendments made by items 1 to 7 and 9 and 10 of Part 1 apply to a sound recording made on or after the day on which the item commences. The remaining amendments apply to a sound recording of a live performance in which copyright subsists on the day on which this item commences.

 

 



Part 2              Performers’ moral rights

 

Copyright Act 1968

306.           This Part introduces comprehensive moral rights provisions for performers by amendment to Part IX of the Act.  The new provisions are intended to give full and proper effect to Australia’s obligations under article 5 of the WPPT.

307.           The moral rights provided for performers will apply in a similar way to the provisions applying to authors of literary, dramatic, musical and artistic works and authors of cinematograph films.  That is, performers will have three moral rights: the right to be identified as the performer of a work (the right of attribution of performership); the right to take action against false attribution (the right not to have performership of a work falsely attributed); and the right to object to derogatory treatment of his or her performance which prejudicially affects his or her reputation (the right of integrity of performership of a work).

308.           The new Part provides that the moral rights of attribution and false attribution continue in force until the copyright ceases to subsist in the recorded performance.  The right of integrity continues until the death of the performer of the recorded performance.

309.           The general approach adopted in the Part is to adapt the present exceptions to the right of attribution and the right of integrity based on a standard of reasonableness to performers as well.  In other words, the onus is on the defendant to show that it was reasonable in the circumstances not to identify the performer or to subject the work to derogatory treatment.  A list of factors are specified in each instance for courts to take into account in determining whether the breach of the right of attribution or the right of integrity was reasonable in the particular circumstances.

310.           It is recognised that there may be occasions when a performer will decide not to exercise and enforce some or all of his or her moral rights.  A performer may give written consent to any or all acts or omissions that would otherwise constitute an infringement of their moral rights.  The provisions allow a written consent to range from a specific consent to a comprehensive consent.  It is not necessary to specify the actions or omissions to a work that are consented to under a comprehensive consent.  This written consent may be in relation to performances that have occurred or are in progress or have not occurred.  Written consent can be given to past acts or omissions that would otherwise constitute an infringement of the moral rights of the performer.

311.           The Part amends the provisions setting out the relief that a court may grant in the case of infringement of moral rights.  The remedies include an injunction, damages, a declaration, an order that the defendant make a public apology for the infringement, and an order that any false attribution or derogatory treatment of the performance be removed or reversed.  In deciding whether to grant an injunction the court must take into account whether the parties have undertaken negotiation or mediation in order to settle their dispute.

Item 16           Part IX - (heading)

312.           This item repeals the present heading for Part IX of the Act and substitutes a new Part IX to include reference to moral rights of performers.

Item 17           Section 189 (definition of act of false attribution )

313.           This item repeals the present definition of ‘act of false attribution’ and inserts a new definition to provide that in relation to a performer’s moral rights it has the meaning given by new sub-s195AHA(2) (ie, Performer’s right not to have performership falsely attributed).

Item 18           Section 189 (definition of attributable act )

314.           This item repeals the present definition of ‘attributable act’ and inserts a new definition to provide that in relation to a performer’s moral rights the term has the meaning given by new sub-s195ABA(2) (ie, Performer’s right of attribution of performership).

Item 19           Section 189 (definition of attributor )

315.           This item repeals the present definition of ‘attributor’ and inserts a new definition to provide that in relation to a performer’s moral rights it has the meaning given by new sub-s195AHA(2) (Performer’s right not to have performership falsely attributed).

Item 20           Section 189

316.           This item inserts a new definition of ‘copy record’ into s189 of the Act.  The term ‘copy record’ is defined to mean a record that embodies a recorded performance or a substantial part of a recorded performance that is derived directly or indirectly from an original record of the performance.

Item 21           Section 189 (definition of deal )

317.           This item includes reference to new Division 3A (Right not to have performership falsely attributed) in the definition of ‘deal’ so that it also includes publish for the purposes of Division 3A as well as Division 3.Item 22  Section 189 (definition of derogatory treatment )

318.           This item repeals the present definition of ‘derogatory treatment’ and substitutes a new meaning to include reference to a performer’s moral rights - which has the meaning given by new s195ALB (Derogatory treatment of performance).

Item 23           Section 189 (definition of infringing article )

319.           This item repeals the present definition of ‘infringing article’ and substitutes a new definition in relation to the moral rights of a performer of a live performance and in relation to the moral right of a performer in a recorded performance.  ‘Infringing article’ means in relation to a performer’s moral rights in a live performance, a copy record of the live performance where it has infringed the right of attribution; a record embodying the live performance where a person’s name is inserted or affixed on the record, or the record embodies sounds, infringing the performer’s false attribution right; or a record embodying the live performance, being the performance as affected by derogatory treatment, that has infringed the right of integrity.

320.           ‘Infringing article’ means in relation to the moral rights of a performer in a recorded performance a copy record which has infringed the right of attribution; or a record embodying the performance where a person’s name is inserted or affixed in or on the record infringing the performer’s false attribution right; or a record embodying the recorded performance that incorporates derogatory treatment that infringes the right of integrity of the performer, or a record embodying the recorded performance, being a record that incorporates derogatory treatment that has infringed the performer’s right of integrity of performership

Item 24           Section 189 (definition of moral right )

321.           This item repeals the present definition of ‘moral right’ for authors and substitutes a new meaning which provides that in relation to a performer it means a right of attribution of performership, or, a right not to have performership falsely attributed, or a right of integrity of authorship.

Item 25           Section 189 (definition of name )

322.           This item inserts a reference to new Division 3A (Right not to have performership falsely attributed) so that a name can include a pseudonym, initials or a monogram for the purposes of that Division.

Item 26           Section 189

323.           This item inserts a definition of ‘original record’ in s189.  It means a record produced upon the making of a sound recording of a live performance.  (The sound track of a cinematograph film is treated as not being a sound recording.)

Item 27           Section 189

324.           This item inserts a definition of ‘performance’.  It means a performance within the meaning of Part IXA (Performers’ protection) so far as the performance consists of sounds.

Item 28           Section 189

325.           This item inserts a definition of ‘performer’ in a performance.  It means each individual who contributed to the sounds of the performance.  In relation to a performance in another country, it does not include a person who is not a qualified person at the time of the performance.  There is also a note referring to the status of a conductor of a musical performance in new s191B (Conductor to be treated as a performer).

Item 29           Section 189

326.           This item inserts a definition of ‘performership’ which means participation in a performance as the performer or one of the performers.

Item 30           Section 189

327.           This item inserts a definition of ‘person representing the performer’.  It means the person who is entitled to exercise and enforce a performer’s moral right under sub-s195ANB(1) (ie, if a performer dies, by his or her legal personal representative) or sub-s195ANB(2) (ie, where the affairs of the performer are lawfully administered by another person).

Item 31           Section 189

328.           This item inserts a definition of ‘qualified person’ and refers to the meaning in Part XIA (ie, an Australian citizen, an Australian protected person or a person resident in Australia).

Item 32           Section 189

329.           This item inserts a definition of ‘recorded performance’ in s189 to mean a performance embodied in a record so as to constitute a sound recording.

Item 33           Section 189

330.           This item inserts a definition of ‘record embodying a performance’ in s189.  It means an original record of a performance or a copy record of a performance.

Item 34           Section 189

331.           This item inserts a definition of ‘right not to have performership falsely attributed’ which has the meaning given by new Division 3A.

Item 35           Section 189

332.           This item inserts a definition of ‘right of attribution of performership’ which has the meaning given by new Division 2A.

Item 36           Section 189

333.           This item inserts a definition of ‘right of integrity of performership’ which has the meaning given by new Division 4A.

Item 37           Section 189

334.           This item inserts a definition of ‘sound recording’ which means a sound recording in which copyright subsists.

Item 38           Section 189

335.           This item inserts a definition of ‘staged’ which means in relation to a live performance, the meaning given by a new s191A.

Item 39           After section 191

336.           This item inserts two new provisions (s191A - staging a performance and s191B - conductor to be treated as a performer).

337.           New s191A provides that a live performance is staged by the person who makes the arrangements necessary for the performance to take place, including elements of the performance not consisting of sounds.

338.           New s191B provides that a conductor of a performance of a musical work is to be treated as a performer in addition to those persons who contributed to the sounds of the performance (subject to meeting the qualified person test).

Item 40           At the end of section 192

339.           This item adds new sub-s192(2) to confirm that the moral rights of a performer are in addition to, and separate from, any other rights that the performer or any other person has under the Act.

Item 41           After Division 2 of Part IX

Division 2A - Right of Attribution of performership

340.           This item inserts a new Division 2A - Right of attribution of performership.  It comprises new s195ABA - s195ABE.  It sets out the circumstances in which the right of attribution arises and the nature of the right.  The new Division follows Division 2 (Right of attribution of authorship).

New 195ABA             Performer’s right of attribution of performership

341.           New s195ABA (Performer’s right of attribution of performership) provides that a performer in a live performance or recorded performance has a right of attribution of performership in respect of his or her performance.

342.           The performer’s right is to be identified, in accordance with new Division 2A if any attributable act (defined in new s195ABB) is done in respect of the performance.

343.           The note in the provision confirms that the provision applies where there is more than one performer and refers to new sub-s195AZQ(2) (Performances that have more than one performer).

New 195ABB             Acts giving rise to right of attribution of performership

344.           New s195ABB (Acts giving rise to attribution of performership) provides that the ‘attributable acts’ for a live performance are communicating the live performance to the public and staging the live performance in public.  The ‘attributable acts’ for a recorded performance are making a copy record and communicating the recorded performance to the public.  These attributable acts derive from the economic rights of a performer.

New 195ABC             Nature of the identification of performer

345.           New s195ABC (Nature of the identification of performer) provides for the nature and manner of identification of a performer.  A performer may be identified by any reasonable form of identification (new sub-s195ABC(1)).  New sub-s195ABC(2) provides for the case where a performer has made known the particular way in which he or she is to be identified.  If it is reasonable in the circumstances, the identification is to be made that way.  New sub-s195ABC(3) refers to the situation of performers who use a group name as being sufficient identification.

New 195ABD             Identification of performer to be clear and reasonably prominent or audible

346.           New s195ABD (Identification of a performer to be clear and reasonably prominent or audible) provides that the identification of a performer must be clear and reasonably prominent or audible as the case may be.

New 195ABE             What is a reasonably prominent identification

347.           New s195ABE (What is a reasonably prominent identification) provides for guidance on what is considered reasonably prominent identification.  When a copy record is made of a recorded performance, an identification of a performer or group would be reasonably prominent if it was on each copy record so that a person acquiring the copy record would have notice of the identity of the performer or group.

Item 42           After Division 3 of Part IX

Division 3A - Right not to have performership falsely attributed

348.           This item inserts a new Division 3A - Right not to have performership falsely attributed - after Division 3.  The new Division comprises new s195AHA - s195AHC.

New 195AHA            Performer’s right not to have performership falsely attributed

349.           New sub-s195AHA(1) (Performer’s right not to have performership falsely attributed) provides that a performer in a live performance or recorded performance has a right not to have his or her performership falsely attributed.

350.           New sub-s195AHA(2) provides for the nature of the right.  That is, a performer has a right not to have a person, ie, the attributor, do any of the acts of false attribution set out in new ss195AHB and 195AHC.  There is a note confirming the application of the provision to more than one performer in a performance and referring to new sub-s195AZQ(3).

New 195AHB             Acts of false attribution of performership

351.           New s195AHB (Acts of false attribution of performership) sets out the acts of false attribution in relation to live performances in sub-s195AHB(1) - (4); in relation to recorded performances for individual performers in sub-s195AHB(5) and in relation to recorded performers for groups in sub-ss195AHB(6) and (7).

352.           Acts of false attribution done before, during or after live performances include where a stager (or a person authorised) falsely states or falsely implies to an audience or prospective audience that a person is or will be the performer or the performance is being or was presented by a particular group of performers.

353.           New sub-s195AHB(4) makes clear that doing an act referred to in sub-ss195AHB(1), (2) and (3) is only an act of false attribution if the performance is in public or is communicated to the public.  Any unauthorised communication to the public is to be disregarded.

354.           New sub-s195AHB(5) provides that for an individual performer of a recorded performance it is an act of false attribution to insert or affix a person’s name in or on a record in such a way as to imply falsely that the person is the performer.

355.           It is also an act of false attribution to deal with such a record if the attributor (ie, the person doing the dealing) knows that the person is not a performer of the performance.

356.           It is also an act of false attribution to communicate the performance to the public if the attributor knows that the person is not a performer of the performance.

357.           New sub-s195AHB(6) provides for the same acts of false attribution set out in sub-s195AHB(5), except they are adapted to apply to groups of performers.

358.           New sub-s195AHB(7) (Silent performers) provides that it is not an act of false attribution to state that a performer who was silent in a performance performed in the performance.  The note to the provision gives an example of its possible application.

New 195AHC            Act of false attribution of performership of altered recorded performance

359.           New sub-s195AHC(1) (Act of false attribution of performership of altered recorded performance) provides that where a recorded performance has been altered by someone other than a performer, it is an act of false attribution to deal with the altered copy, as being the unaltered record of the performance if the attributor (ie, the dealer) has knowledge that it was not the unaltered recorded performance of the performer.

360.           New sub-s195AHC(2) provides that sub-s195AHC(1) does not apply if the alteration was only insubstantial or the alteration was required to comply with the law or was necessary to avoid a breach of the law (eg, defamation).

Item 43           After Division 4 of Part IX

Division 4A - Right of integrity of performership

361.           This item inserts new Division 4A - Right of integrity of performership.  The Division gives effect to the second moral right referred to in article 5 of the WPPT, that is the right of a performer to object to any distortion, mutilation or other modification of his or her performance that would be prejudicial to his or her honour or reputation.

New 195ALA             Performer’s right of integrity of performership

362.           New s195ALA (Performer’s right of integrity of performership) provides that the performer in a live performance or recorded performance has a right of integrity in respect of the performance.  The performer’s right is not to have the performance subjected to derogatory treatment (new sub-s195ALA(2)).  The provision includes a note about application where there is more than one performer and refers to sub-s195AZQ(4).

New 195ALB             Derogatory treatment of performance

363.           New s195ALB (Derogatory treatment of performance) defines ‘derogatory treatment’ to mean the doing, in relation to a live performance or recorded performance, of anything that results in a material distortion or alteration of, or the mutilation of the performance that is prejudicial to the performer’s reputation.

Item 44           Before section 195AM

Subdivision A - Duration and exercise of moral rights of authors

364.           This item inserts the heading to new Subdivision A - Duration and exercise of moral rights of authors.  It includes two notes to change headings to provide that s195AM and s195AN apply to the duration and exercise of ‘authors’ moral rights.  These are consequential amendments because of the inclusion of new Subdivision B in relation to performers at the end of Division 5 of Part IX.

Item 45           At the end of Division 5 of Part IX

Subdivision B - Duration and exercise of moral rights of performers

365.           This item inserts new Subdivision B - Duration and exercise of moral rights of performers and comprises new s195ANA (Duration of performer’s moral rights for recorded performances) and s195ANB (Exercise of performer’s moral rights).

New 195ANA            Duration of performer’s moral rights for recorded performances

366.           As permitted by article 5(2) of the WPPT, under new s195ANA a performer’s right of attribution of performership for a recorded performance ceases when copyright ceases to subsist in the recorded performance.  This is also the case for the performer’s right not to have performership falsely attributed.

367.           A performer’s right of integrity for a recorded performance ceases upon the death of the performer.

New 195ANB             Exercise of performer’s moral rights

368.           New sub-s195ANB(1) provides that a performer’s moral rights may be exercised by his or her legal personal representative.  New sub-s195ANB(2) states that if the performer’s affairs are lawfully administered by another person, the performer’s moral rights may be exercised and enforced by the person administering his or her affairs.  (This does not apply to the situation of bankrupt or insolvent debtors).

369.           New sub-s195ANB(3) confirms that other than this section, a performer’s moral right is not transmissible by assignment, will or by devolution by operation of law.

370.           New sub-ss195ANB(4) and (5) provide for the situation where there are two or more performers.  The performers may enter into a written co-performership agreement whereby each of them agrees only to exercise his or her right of integrity jointly with the other performer or performers.

Item 46           Before section 195AO

Subdivision A - Infringement of moral rights of authors

371.           This item inserts new subdivision heading - Subdivision A - Infringement of moral rights of authors, which is a consequential amendment because of the need to introduce Subdivision B - Infringement of moral rights of performers.

Item 47           Section 195AO

372.           This item omits ‘Division’ in the first line and replaces it with ‘Subdivision’, which is a consequential change as a result of item 46.

Item 48           Section 195AP

373.           This item omits ‘Division’ in the first line and replaces it with ‘Subdivision’, which is a consequential change as a result of item 46.

Item 49           Subsection 195AQ(1)

374.           This item omits ‘Division’ in the first line and replaces it with ‘Subdivision’, which is a consequential change as a result of item 46.

Item 50           Section 195AVA

375.           This item makes a consequential change to s195AVA (Matters to be taken into account) to confirm that it only applies to moral rights in respect of a work.  (New s195AXH is the equivalent provision for performers.)

Item 51           Section 195AVB

376.           This item makes a consequential change to s195AVB (Communication by use of certain facilities) to confirm that it only applies to moral rights in respect of a work (New s195AXI is the equivalent provision for performers.)

Item 52           At the end of Division 6 of Part IX

Subdivision B - Infringement of moral rights of performers

377.           This item adds new Subdivision B - Infringement of moral rights of performers.  It comprises new s195AXA - s195AXL.  The new provisions are similar to the present provisions in Part IX - s195AO - s195AX in relation to authors. Article 5(3) of the WPPT provides that the means of redress for infringements of a performer’s moral rights are to be governed by the domestic laws of the Parties.

New 195AXA                        Infringement of right of attribution of performership

378.           New s195AXA (Infringement of right of attribution of performership) provides that a person infringes a performer’s right of attribution of performership if a person does or authorises someone else to do one of the attributable acts (referred to in sub-s195ABA(2) in respect of the performance without the identification of the performer in accordance with Division 2A.  This provision is subject to the other provisions in the Subdivision.

New 195AXB             Infringement of right not to have performership falsely attributed

379.           New s195AXB (Infringement of right not to have performership falsely attributed) provides that subject to the Subdivision, a person infringes a performer’s right if the person does an act of false attribution in respect of the performance.

New 195AXC                        Infringement of right of integrity of performership

380.           New s195AXC (Infringement of right of integrity of performership) sets out the circumstances when a person infringes a performer’s right of integrity.  New sub-s195AXC(1) provides that the provision is also subject to the other provisions in the Subdivision.

381.           New sub-s195AXC(2) provides that a person infringes the right of integrity in respect of a live performance or recorded performance if the person (or someone else authorised by that person) subjects the performance to derogatory treatment.

382.           New sub-s195AXC(3) sets out the circumstances of infringement where a live performance affected by derogatory treatment becomes a recorded performance.  In this situation a person infringes the right of integrity in respect of the live performance if the person makes a copy of the recorded performance, communicates the recorded performance to the public or causes the recorded performance to be heard in public.

383.           New sub-s195AXC(4) applies where a recorded performance has been subjected to derogatory treatment.  A person infringes the performer’s right of integrity in relation to the recorded performance if the person makes a copy record, communicates to the public or causes the recorded performance to be heard in public.

New 195AXD            No infringement of right of attribution of performership if it was reasonable not to identify the performer

384.           New s195AXD (No infringement of right of attribution of performership if it was reasonable not to identify the performer) sets out the circumstances where a failure to identify the performer will not be an infringement of the performer’s moral right of attribution.

385.           New sub-s195AXD(1) provides that a person who does or authorises someone else to do an attributable act (see new sub-s195ABA(2)) in respect of a performance, does not, if the performer in the performance is not identified, infringe the performer’s right of attribution, if the person establishes that it was reasonable in the circumstances not to identify the performer.

386.           New sub-s195AXD(2) sets out matters to be taken into account in determining whether it was reasonable in the circumstances not to identify a performer in a live performance or recorded performance.  These matters include: the nature of the performance; the purpose for which the performance is used; the manner in which the performance is used; the context in which the performance is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; any difficulty or expense that would have been incurred to identify the performer; and whether the performer participated in the performance in the course of the performer’s employment.

New 195AXE             No infringement of performership if derogatory treatment or other action was reasonable

387.           New s195AXE (No infringement of right of integrity of performership if derogatory treatment or other action was reasonable) provides in a similar way to new s195AXD. New sub-s195AXE(1) provides that a person does not infringe the performer’s right of integrity of performership if the person establishes that it was reasonable in all the circumstances to subject the performance, or authorise it to be subjected to, the derogatory treatment.

388.           New sub-s195AXE(2) provides for the matters to be taken into account in determining whether it was reasonable in the circumstances to subject the live performance or recorded performance to derogatory treatment.  The matters include: the nature of the performance; the purpose for which the performance is used; the manner in which the performance is used; the context in which the performance is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; whether the performer who alleges the treatment participated in the performance in the course of employment; and whether the treatment was required by law or was necessary to avoid a breach of the law.  In relation to this last factor, classification, obscenity, consumer protection, defamation, national security laws and sub judice are all examples of laws that may require changes to a performance that would otherwise infringe the performer’s right of integrity.  This factor, like the other factors in this section, is not stated in absolute terms.  It would therefore be necessary for each defendant to show that their derogatory treatment of the performance was reasonable in the light of these laws.  Changes made under the colour of legal compulsion would not be justified if they went beyond what was reasonably necessary for this purpose.

389.           New sub-s195AXE(3) provides for the availability of a ‘reasonableness’ defence in respect of any act referred to in new sub-s195AXC(3) or sub-s195AXC(4).

New 195AXF             Infringement by importation for sale or other dealing

390.           New s195AXF (Infringement by importation for sale or other dealing) and new s195AXG (Infringement by sale and other dealings) provide for further rights against third parties for a performer in circumstances where his or her moral rights have been infringed by an article.  The intention is to allow the performer to prevent further distribution of such an article, including where an article is imported into Australia.

391.           Under new sub-s195AXF(1) a performer’s moral right is infringed if a person imports an article into Australia for the purpose of sale or other commercial dealing with the article, if the importer knew, or should have known, that if the article had been made in Australia it would have been an infringing article (see definition in s189).  ‘Dealing with’ is defined in new sub-s195AXF(2) to not include distributing except where its purpose is for sale.

New 195AXG                        Infringement by sale and other dealings

392.           New sub-s195AXG(1) provides that a performer’s moral rights are infringed where a person deals with an article where the person knew, or should have known, that the article was an infringing article, or if the article is imported, would have been an infringing article had it been made in Australia (see definition in s189).

393.           New sub-s195AXG(2) provides that ‘deals with’ does not include distributing except where its purpose is for sale or dealing covered by new paragraph 195AHB(5)(b) (ie, acts of false attribution for recorded performances of individual performers).

New 195AXH                        Matters to be taken into account

394.           New s195AXH (Matters to be taken into account) provides for matters to be taken into account in determining whether a person has authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance.  The matters that must be taken into account include: the extent, if any, of the person’s power to prevent the doing of the act; the nature of any relationship between the persons; and whether the person took reasonable steps to prevent or avoid the doing of the act, including compliance with any relevant industry codes of practice.

New 195AXI              Communication by use of certain facilities

395.           New s195AXI (Communication by use of certain facilities) relates to limitation of liability.  It provides that a person who provides facilities for making a communication, or facilitating the making thereof, is not taken to have authorised the doing of an act of infringement of moral rights, merely because another person uses the facilities provided.  The term ‘person’ includes a carrier or carriage service provider.

New 195AXJ             Performer’s consent to act or omission

396.           New s195AXJ (Performer’s consent to act or omission) relates to circumstances where a performer has given consent.

397.           New sub-s195AXJ(1) provides that it is not an infringement of a performer’s moral right in respect of a live performance or recorded performance to do anything that comes within the scope of what has been consented to by the performer or the person representing the performer.  The written consent under this provision may range from a specific consent to a comprehensive consent.  It is not necessary to specify the actions or omissions in relation to a performance that are consented to under such a comprehensive consent.  The consent of one performer does not affect the moral rights of any other performer.

398.           New sub-s195AXJ(2) makes it clear that a written consent may be given to acts or omissions that were done either before or after the consent was given.

399.           New sub-s195AXJ(3) provides that a written consent to acts or omissions that would otherwise constitute an infringement of moral rights can relate to a specific performance or performances in existence at the time the consent is given, or a performance or performances of a particular description that have not yet occurred or that are in the course of occurring.

400.           New sub-s195AXJ(4) provides that a consent may be given by an employee for the benefit of his or her employer in relation to his or her performances that are given in the course of his or her employment.

401.           New sub-s195AXJ(5) provides that a written consent that is made for the benefit of the owner or future owner of copyright in the performance or performances concerned is presumed to extend to his or her licensees and successors in title and to any person authorise to do acts comprised in the copyright.

402.           New sub-s195AXJ(6) makes it clear that new sub-ss195AXJ(2), (3), (4) and (5) do not limit the operation of new sub-s195AXJ(1).

New 195AXK            Consent invalidated by duress or false or misleading statements

403.           New s195AXK (Consent invalidated by duress or false or misleading statements) provides for circumstances when the giving of consent will not be valid under new s195AXJ.

404.           New sub-s195AXK(1) refers to where a person applies duress to a performer or his or her representative in connection with the giving of a consent for the purposes of s195AXJ.

405.           New sub-s195AXK(2) refers to where a person makes a statement to another person knowing that it is false or misleading, and where the person makes the statement with the intention of persuading the other person to give or not give consent under new s195AXJ. Consents resulting from such circumstances do not have any effect.

New 195AXL             Acts or omissions outside Australia

406.           New s195AXL (Acts or omissions outside Australia) confirms that a performer’s moral rights in respect of a live performance or recorded performance have no extraterritorial application.  It only applies to acts or omissions within Australia.

Item 53           Before section 195AY

Subdivision A - Remedies for infringement of moral rights of authors

407.           This item inserts a new Subdivision A - Remedies for infringement of moral rights of authors which is a consequential amendment because of the inclusion of new Subdivision B - Remedies for infringement of moral rights of performers.

Item 54           Section 195AY

408.           This item omits ‘Division’ and inserts ‘Subdivision’.  This is a consequential change because of the amendment referred to in item 53.

Item 55           Sections 195AZB and 195AZC

409.           This item repeals these sections of the Act because of the inclusion of new s195AZGG (Saving of other rights and remedies) and s195AZGH (Jurisdiction of Courts).  The headings to s195AZ, and s195AZA are amended to insert ‘authors’ after ‘infringement of’ to confirm that those provisions only apply in relation to authors.  This is also the case with changing the heading to s195AZE.

Item 56           At the end of Division 7 of Part IX

Subdivision B - Remedies for infringement of moral rights of performers

410.           This item adds new Subdivision B - Remedies for infringements of moral rights of performers - to Part IX of the Act.  The new Subdivision includes new ss195AZGA - 195AZGF and are based on the present ss195AY - 195AZA of the Act.  The item also adds new Subdivision C - Miscellaneous.

New 195AXGA         Definition etc

411.           New s195AZGA (Definition etc) provides that an action refers to a civil action between the parties and, in relation to a counterclaim, references in the Subdivision to the defendant are taken to be references to the plaintiff.

New 195AXGB          Actions for infringement of performer’s moral rights

412.           New s195AZGB (Actions for infringement of performer’s moral rights) provides that if a person infringes any of the moral rights of a performer, the infringement is a civil proceeding and the performer or his or her legal personal representative may bring a civil action in respect of the infringement.  The right to bring such an action is expressly made subject to any co-performership agreement between performers under new s195ANB.

New 195AXGC         Remedies for infringements of performer’s moral rights

413.           New s195AZGC (Remedies for infringements of performer’s moral rights) provides for the relief that a court may grant in an action for infringement of any of a performer’s moral rights.  The relief includes: an injunction; damages for loss resulting from the infringement; a declaration that a moral right of the performer has been infringed; an order that the defendant make a public apology; or an order that any false attribution or derogatory treatment be removed or reversed.

414.           New sub-s195AZGC(2) lists certain matters a court may take into account in exercising its discretion as to the appropriate relief to grant.  These matters include: whether the defendant was aware or ought reasonably to have been aware of the performer’s moral rights; the effect on the performer’s reputation resulting from any damage to the performance; the number of people who have heard the performance; any mitigating action taken by the defendant; if the right of attribution is infringed - any cost or difficulty that would have been associated with identifying the performer; and any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment of the performance.

415.           New sub-s195AZGC(3) provides that in deciding whether to grant an injunction under subsection (1), the court must consider whether the parties have attempted negotiation to reach a settlement of the action.  In so deciding, the court must also consider whether to adjourn the hearing or further hearing of the action for the purpose of providing the parties with an opportunity to attempt negotiation or mediation.

416.           New sub-s195AZGC(4) provides that, in relation to an action brought concerning an act or omission done after the death of the performer, any damages recovered by the person representing the performer devolve as if they formed part of the performer’s estate before his or her death.  A note has been added at the end of this Subsection to the effect that sub-s195AZGC(4) does not apply in relation to the right of integrity which ends on the performer’s death (see new s195ANA).

New 195AXGD         Presumption as to subsistence of copyright

417.           New s195AZGD (Presumption as to subsistence of copyright) provides that in an action for infringement of a moral right in respect of a recorded performance, copyright is presumed to subsist in the recorded performance if the defendant does not question the issue.

New 195AXGE          Presumption as to subsistence of performer’s moral rights

418.           New s195AZGE (Presumption as to subsistence of performer’s moral rights) provides that in an action under this Part, if copyright is presumed or proved to have subsisted in the recorded performance when the infringement is alleged to have occurred, then that moral right is also presumed to have subsisted in the recorded performance at that time. The section is subject to sub-s.195ANA(3) where the duration of a performer’s moral right of integrity is limited to the life of the performer.

New 195AXGF          Presumptions in relation to performership

419.           New s195AZGF (Presumption in relation to performership) provides for a presumption of performership of a performance by the person named on a record.  New sub-s195AZGF(2) also provides for a similar presumption of performership in relation to the name of a group of performers.

Subdivision C - Miscellaneous

420.           This subdivision inserts new s195AZGG (Saving of other rights and remedies) and new s195AZGH (Jurisdiction of courts).  These new provisions were previously s195AZB and s195AZC respectively of the Act.

New 195AZGG          Saving of other rights and remedies

421.           New s195AZGG provides that Part IX does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under Part IX.

422.           Under new sub-s195AZGG(2) any damages recovered under Part IX are to be taken into account in assessing damages awarded under proceedings brought otherwise than under Part IX which arise out of the same event.  New sub-s195AZGG(3) provides similarly that damages recovered in proceedings brought otherwise than under Part IX are to be taken into account in any proceedings brought under Part IX that arise out of the same event or transaction.

New 195AXGH         Jurisdiction of courts

423.           New sub-s195AZGH(1) provides that the jurisdiction of a State or Territory Supreme Court in a matter arising under this Part is to be exercised by a single Judge.  Sub-s195AZGH(2) provides that subject to sub-s195AZGH(3) a decision of a court of State or Territory under Part IX is final.  New sub-s195AZGH(3) provides that an appeal lies from a decision of a State or Territory Court to the Federal Court, or, by special leave, the High Court.  The Federal Court and the Federal Magistrates Court has jurisdiction on matters under Part IX (new sub-s195AZGH(4) and sub-s195AZGH(5)).

Item 57           Before section 195AZH

Subdivision A - Miscellaneous provisions about moral rights of authors

424.           This item inserts reference to new Subdivision A - Miscellaneous provisions about moral rights of authors.  This is a consequential amendment because of the inserting of new Subdivision B - Miscellaneous provisions about moral rights of performers.

Item 58           At the end of Division 8 of Part IX

Subdivision B - Miscellaneous provisions about moral rights of performers

425.           This item adds new Subdivision B - Miscellaneous provisions about moral rights of performers which comprises new s195AZP, s195AZQ and s195AZR.

New 195AZP             Parts of performances

426.           New s195AZP (Parts of performances) confirms that moral rights in respect of a live performance or recorded performance apply in relation to the whole or a substantial part of the performance.

New 195AZQ             Performances that have more than one performer

427.           New s195AZQ (Performances that have more than one performer) provides for the application of moral rights where there is more than one performer in a performance.  New sub-ss195AZQ(2) - (4) provide that moral rights apply to each performer.  The consent of one performer to any act or omission does not affect the moral rights of any other performer in the performance (new sub-s195AZQ(5)).  Examples of the application of this section are also set out in sub-s195AZQ(2) - (4).

New 195AZR             Application

428.           As permitted by article 22(2) of the WPPT, new s195AZR (Application) provides that any moral rights in a live performance only subsist in a live performance that occurs after the commencement of the section.  Similarly, moral rights in respect of a recorded performance only subsist if the relevant live performance occurred after the commencement of the section.

 



Part 3 -Performers’ protection

 

Copyright Act 1968

Item 59           Subsection 10(1) (at the end of the definition of communicate )

429.           This item amends the definition of communicate in sub-s10(1) to include performances or live performances within the meaning of the Act in the categories of items that the definition relates to.  This amendment is consequential to the extension of performers’ protection to non-broadcast communications of their performances in Part XIA at item 76.

Item 60           Subsection 248A(1) (paragraphs (a) (b) of the definition of exempt recording )

430.           This item repeals paragraphs (a) and (b) of the definition of ‘exempt recording’ in sub-s248A(1) in Part XIA and substitutes new paragraphs (a), (aa) and (b).

431.           Currently Part XIA, in providing for a right of action against and criminal offences of unauthorised uses of live performances, also provides for a number of exceptions.  Insofar as such uses include sound recording and audiovisual recording of performances, Part XIA does this by defining ‘recording’ in sub-s248A(1) to exclude an ‘exempt recording’ and by defining ‘exempt recording’ to cover the range of circumstances in which the recording of a live performance is not actionable or an offence.

432.           The categories of exempt recordings, as defined in sub-s248A(1), include recordings allowable as exceptions to the rights of performers prescribed by the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention), which Part XIA implements.  In relation to sound recordings of performances, those Rome Convention rights are subsumed by the obligations of the WPPT which contains more restrictive provisions on allowable exceptions to these performers’ rights.  Article 15(1) of the Rome Convention allows unqualified exceptions for private use and use solely for teaching or scientific research plus two other specific exceptions, in contrast to article 16(2) of the WPPT which requires any exceptions to conform to the ‘3-step test’ prescribed in that article.

433.           New paragraph (a) retains the existing Rome Convention exception for indirect cinematograph films of performances, where the film is made solely for the purpose of the private and domestic use of the person who made it.  Previously, this exception applied to both cinematograph films and sound recordings.

434.           New paragraph (aa) applies the more restrictive WPPT-compliant exception to sound recordings, providing that an exempt recording means an indirect sound recording of a performance where that recording is a fair dealing for the purpose of research or study. New paragraph (aa) replaces the existing Rome Convention exceptions for indirect sound recordings of live performances for scientific research.

435.           New paragraph (b) retains the existing Rome Convention exception for indirect cinematograph films of performances, where the film is made solely for the purpose of use in scientific research.  Previously, this exception applied to both cinematograph films and sound recordings.

Item 61           Subsection 248A(1) (paragraphs (c), (d) and (e) of the definition of exempt recording )

436.           This item amends the wording of paragraphs (c), (d) and (e) of sub-s248A(1) to restrict the operation of those paragraphs to cinematograph films for the reasons given at item 60.

Item 62           Subsection 248A(1) (paragraph (f) of the definition of exempt recording )

437.           This item amends the wording of paragraph (f) of sub-s248A(1) to restrict the operation of this paragraph to cinematograph films for the reasons given at item 60.

Item 63           Subsection 248A(1) (after paragraph (f) of the definition of exempt recording )

438.           This item inserts a new paragraph (fa) to the definition of exempt recording in sub-s248A(1).  New paragraph (fa) provides that an exempt recording means a direct or indirect sound recording of a performance that is a fair dealing for the purposes of criticism or review of that performance or another performance, or the reporting of news in a newspaper, magazine or similar periodical, or by means of a communication or in a cinematograph film.  This amendment reflects the reasons given at item 60.

Item 64           Subsection 248A(1) (after paragraph (j) of the definition of exempt recording )

439.           This item inserts a new paragraph (ja) to the definition of exempt recording in sub-s248A(1).  New paragraph (ja) provides that an exempt recording means a copy of a sound recording referred to in new paragraphs 248A(1)(aa) and (fa) and existing paragraph 248A(1)(g) where that copy is made solely for the purpose referred to in those paragraphs.  This amendment reflects the reasons given at item 60.

Item 65           Subsection 248A(1) (paragraph (k) of the definition of exempt recording )

440.           This item omits the reference to sound recording from paragraph 248A(1)(k).  This amendment reflects the reasons given at item 60.

Item 66           Subsection 248A(1) (after subparagraph (n)(i) of the definition of exempt recording )

441.           This item inserts a new subparagraph 248A(1)(n)(ia) which provides that an exempt recording means a copy of a sound recording referred to in paragraph 248A(1)(j) if the copy of the sound recording was made solely for a purpose referred to in new paragraphs 248A(1)(aa), (fa) or existing paragraph 248(1)(g).  This amendment reflects the reasons given at item 60.

Item 67           Subsection 248A(1) (subparagraph (n)(ii) of the definition of exempt recording )

442.           This item amends the wording of subparagraph 248A(1)(n)(ii) to restrict the operation of this subparagraph to copies of cinematograph films.  This amendment reflects the reasons given at item 60.

Item 68           Subsection 248A(1) (definition of indirect )

443.           This item omits the words ‘broadcast, or a re-broadcast’ from the definition of indirect in sub-s248A(1) and substitutes the word ‘communication’.  This amendment is consequential to the extension of performers’ protection to non-broadcast communications of their performances in Part XIA at item 76.

Item 69           Subsection 248A(1) (definition of performance )

444.           This item repeals the definition of performance in subsection 248A(1) and substitutes a new definition of performance.  The new definition extends the current meaning to a performance of an expression of folklore, as required by article 2(a) of the WPPT and clarifies the connecting factors for protection of a performance.

445.           Currently, the definition of performance in sub-s248A(1) requires the performance to be a live performance given in Australia or given by one or more qualified persons, whether in the presence of an audience or otherwise. The new definition of performance clarifies where a performance is not given in Australia, it is still a performance for the purposes of sub-s248A(1) if it is given by one or more qualified persons even though it may also be given by other non-qualified persons.

Item 70           Subsection 248A(1)

446.           This item inserts a new definition of ‘performer’ into sub-s248A(1).  The new definition clarifies that where a performance is given outside Australia, a person who is not a qualified person at the time of the performance, will not be a performer.

447.           The amendments to the definition of performance and performer in items 69 and 70 clarify that where a performance is given outside of Australia by one or more qualified persons, the inclusion of non-qualified persons in the performance will not prevent the performance from coming under the operation of Part XIA. However, only the qualified participants are granted the protections of Part XIA.

Item 71           After subsection 248A(1)

448.           This item inserts a new sub-s248A(1A). The new provision provides factors that must be taken into account when determining if a sound recording of a performance is a fair dealing for the purpose of research or study for the purposes of paragraph 248A(1)(aa) of the definition of exempt recording.  The provision is based upon the existing factors for fair dealing in relation to works in sub-s40(2).

Item 72           Subsection 248B

449.           This item amends the wording of sub-s248B to restrict the operation of this subsection to copies of cinematograph films.  This amendment reflects the reasons at item 60.

Item 73           After subsection 248C(1)

450.           This item inserts a new sub-s248C(1A). The new provision provides that a sound recording or a copy of a sound recording that is an exempt recording because it falls within paragraphs 248A(1)(aa) or (fa), ceases to be an exempt recording if it is used for any other purpose without the authority of the performer. This amendment reflects the reasons at item 60.

Item 74           Subsection 248C(2)

451.           This item omits the reference to sound recordings from sub-s248C(2). This amendment reflects the reasons at item 60.

Item 75           Section 248D

New 248D      Private and domestic use

452.           This item repeals s248D and substitutes a new s248D. The new provision operates only in relation to cinematograph films.  This amendment reflects the reasons at item 60.

Item 76           Paragraph 248G(1)(b)

453.           This item amends paragraph 248G(1)(b) to remove the reference to  ‘broadcasts, or re-broadcasts an authorised recording of a performance’ and substitute ‘communicates the performance to the public’.  Article 6(i) of the WPPT requires contracting parties to grant performers the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances. Currently, Part XIA protection does not extend to communications other than broadcasts of performers’ unfixed performances or unauthorised fixations of their performances. The amendment to paragraph 248G(1)(b) provides that it is an unauthorised use of a performance to communicate a performance to the public without the authority of the performer.

454.           The definition of broadcast in s10 provides that a broadcast is a communication to the public.  As a result, the reference to communicate will include both broadcasts and other types of communications.  As a consequence of this amendment, references to broadcasts throughout Part XIA are amended to refer to communications to the public.

Item 77           Subsection 248G(3)

455.           This item amends sub-s248G(3) to omit ‘broadcasts or re-broadcasts the performance’ and substitute ‘communicates an authorised recording of a performance to the public’. This amendment is consequential to the extension of performers’ protection to non-broadcast communications of their performances in Part XIA at item 76.

Item 78           At the end of section 248J

456.           This item adds new sub-ss248G(4) and (5).

457.           As a consequence of granting performers copyright over their sound recordings, it could be possible that the same act in relation to their performance may give rise to separate actions under Part V and Part XIA. This item prevents a performer from being awarded the full amount of damages under both Part V and Part XIA in relation to the same act.

458.           New sub-s248G(4) provides that where a performer is bringing an action under s248J, the relief consists of or includes damages, and the performer has already been awarded damages in an action under another part of the Act in relation to the same event or transaction, then any damages awarded are to be reduced by the amount of damages already awarded.

459.           New sub-s248G(5) provides that where a performer is bringing an action under any other part of the Act, and the relief consists of or includes damages, and the performer has already been awarded damages in an action under s248J in relation to the same event or transaction, then any damages awarded are to be reduced by the amount of damages already awarded.

Item 79           Subsection 248P(3)

460.           This item amends sub-s248P(3) to remove the reference to ‘broadcasts, or re-broadcasts an authorised recording of a performance’ and substitute ‘communicates the performance to the public’.  This amendment is consequential to the extension of performers’ protection to non-broadcast communications of their performances in Part XIA at item 76.

Item 80           After subsection 248P(7A)

461.           This item inserts a new sub-s248P(7B). The new provision retains the existing Rome Convention exception that allows indirect sound recordings of performances for the purpose of private or domestic use. As a result, a person who makes an indirect sound recording of a performance for private and domestic use, without the authority of the performer, will not commit an offence under sub-s248P(2). Consequently, unauthorised indirect sound recordings of live performances for private and domestic use will give rise to a civil right of action only.

Item 81           Subsection 248P(8)

462.           This item amends sub-s248P(8) to remove the reference to  ‘broadcasts, or re-broadcasts an authorised recording of a performance’ and substitute ‘communicates the performance to the public’.  This amendment is consequential to the extension of performers’ protection to non-broadcast communications of their performances in Part XIA at item 76.

Item 82           After paragraph 248U(1)(a)

463.           This item inserts new paragraphs 248U(1)(aa), (ab) and (ac).

464.           Currently sub-s248U(1) gives guidance as to how the Regulations can apply any of the provisions in Part XIA specified in the Regulations, in relation to a foreign country that is a member of a treaty to which Australia belongs.

465.           Article 4 of the Rome Convention, of which Australia is a member, requires member countries to grant to nationals of other Parties the treatment in accords to its own performers where, amongst other circumstances: the maker of a sound recording of the performer’s performance is a citizen, national or resident of another member country; the performance was first recorded in another member country; or the performance is carried by a sound or television broadcast made from another member country.  These criteria for eligibility for protection under the Rome Convention have been carried over into the WPPT by article 3(2).

466.           New paragraph 248U(1)(aa) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to a recording made in another country, of a performance.

467.           New paragraph 248U(1)(ab) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to a broadcast made in another country, of a performance.

468.           New paragraph 248U(1)(ac) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to recordings made by persons who are citizens, nationals or residents of another country.

Item 83           Subsection 248V(1)

469.           This item amends sub-s248V(1).  Currently, sub-s248V(1) provides that where it appears to the Governor-General that the law of a foreign country does not give adequate protection to Australian performances due to the nature of the performance, or the nationality, citizenship or country of residence of its performer, the Governor-General may make regulations in relation to that country in accordance with sub-s248V(2).  Item 83 extends the Governor-General’s power to make regulations to where a law of a foreign country does not give adequate protection to Australian performances due to any of the connecting factors in sub-s248U(1).

Item 84           Application

470.           This item provides that the amendments made by Part 3 apply to acts done in respect of a performance within the protection period of the performance, after the day on which this item commences (even if the performance was given before that day).

471.           The effect of this item is that although the amendments made to the part will apply to past performances, the amendments will only apply to acts done after commencement. As an example, a communication other than a broadcast made before commencement of an unauthorised recording of a performance that was given before commencement will not be an unauthorised act for the purposes of sub-s248G(1).  In contrast, a communication other than a broadcast made after commencement of an unauthorised recording of a performance that was given before commencement will be an unauthorised act for the purposes of sub-s248G(1). Similarly, the amendments to the definition of ‘exempt recordings’ in sub-s248A(1), will only apply to recordings made after commencement. The existing Rome Convention exceptions will apply to any recordings made before commencement.



Part 4 - Copying and communicating broadcasts of performances

Copyright Act 1968

Item 85           Section 135A

472.           This item inserts a new definition of ‘performance in s135A. The new definition provides that performance has the same meaning as in Part XIA.

473.           Previously, it was unnecessary for institutions operating under Part VA to provide remuneration to performers for the copying or communication of broadcasts of performances, as all of these broadcasts would come within paragraph (c) of the definition of ‘exempt recording’.  However, the more restrictive WPPT compliant exceptions for the copying or communication of broadcasts of performances under Part XIA, as discussed in item 60, have the effect that some copies and communications of broadcasts of performances made by institutions may be unauthorised uses for the purposes of Part XIA.  Part 4 extends the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

474.           This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 86           Section 135A

475.           This item inserts a new definition of ‘performer in s135A. The new definition provides that performer has the same meaning as in Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 87           Section 135A (definition of relevant copyright owner )

476.           This item repeals the definition of ‘relevant copyright owner . A new concept of ‘relevant right holder’ is introduced by item 88, to replace the concept of ‘relevant copyright owner’. This amendment is consequential to the extension of ownership of copyright in sound recordings of live performances to performers, as discussed in item 2.

Item 88           Section 135A

477.           This item inserts a new definition of ‘relevant right holder’ in s135A. ‘Relevant right holder’ is defined as the owner of the copyright in a work, a sound recording or a cinematograph film, other than a new owner of the copyright in a sound recording of a live performance as defined in s100AB, or a performer in a performance.  The concept of ‘relevant right holder’ replaces ‘relevant copyright owner’ in recognition that a performer within the meaning of paragraph (b) may not be an owner of copyright. Such a situation may arise where a performance occurs before the commencement of the amendments in Part 1 to Schedule 9.

478.           Paragraph (a) of the definition is consequential to the extension of ownership of copyright in sound recordings of live performances to performers, as discussed in item 2.

479.           Paragraph (b) of the definition is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 89           After subsection 135E(1)

480.           This item inserts new sub-s135E(1A).  The new provision provides that each performer is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the conditions in paragraphs (a) to (d) are fulfilled.  These conditions replicate the existing conditions for copying and communication of a broadcast in the current sub-s135E(1).  Provided that an institution has complied with these conditions, the institution can make or communicate a copy of a broadcast of a performance, without infringing the rights of a performer under Part XIA.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 90 to 92  Subsection 135E(2), Paragraph 135E(2)(a), Subsection 135E(2)

481.           These items extend the operation of existing sub-s135E(2) to new sub-s135E(1A).  The effect of these amendments is that where a copy or communication of a broadcast of a performance is used for a purpose other than those outlined in paragraphs 135E(1A)(b) or (c), or is made, sold or otherwise supplied for a financial profit, or is given to an administering body when there is not in force a remuneration notice given by that body to a collecting society, with the consent of the administering body by whom or on whose behalf it is made, then sub-s135E(1A) does not apply, and the copy or communication of the broadcast of a performance will constitute unauthorised use for the purposes of Part XIA.  These amendments are consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 93           After subsection 135F(1)

482.           Items 93 to 96 extend the operation of s135F to the making and communication of preview copies of broadcasts of performances.

483.           Item 93 inserts a new sub-s135F(1A).  The new sub-s135F(1A) provides that each performer is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a preview copy of a broadcast of the performance.  The effect of this subsection is that no right of action and no offence occur in respect of the preview copy under Part XIA.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under

Part VA.

Item 94 and 95           Subsection 135F(5), Subsection 135F(5)

484.           These items extend the operation of sub-s135F(5) to the new

sub-s135E(1A).  The effect of these amendments is that where a preview copy of a broadcast of a performance is retained under sub-s135F(4),

sub-s135E(1A) applies in relation to the copy after the end of the preview period as if the copy had been made solely for a purpose referred to in paragraphs 135E(1A)(b) or (c).  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under

Part VA.

Item 96           Subsection 135F(6)

485.           This item extends the operation of sub-s135F(6) to sub-s135F(1A).  The effect of this amendment is that where a preview copy of a broadcast of a performance is neither destroyed within the preview period nor retained under sub-s135F(4), then sub-s135F(1A) does not apply, and the making of the preview copy of the broadcast of a performance will constitute unauthorised use for the purposes of Part XIA.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 97           At the end of section 135F

486.           This item inserts a new sub-s135F(8). The new sub-s135F(8) provides the circumstances in which each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of a performance.  These circumstances are based upon the existing circumstances for communication of a preview copy of a broadcast of a work or other subject matter in sub-s135F(7).  The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 98           Paragraph 135H(2)(a)

487.           This item amends paragraph 135H(2)(a) to provide that for the purposes of determining equitable remuneration under a records notice, different amounts may also be determined in relation to different classes of performance.

Item 99           Subsections 135J(5) and 135JA(7)

488.           This item omits the reference to ‘subsections 135E(1) and 135F(1)’ and substitutes ‘sections 135E and 135F’.  This amendment has the effect that if a sampling notice or agreed notice is given by or on behalf of an administering body to the collecting society and the administering body does not comply with one or more of the requirements of the sampling or agreed system, then ss135E and 135F will not apply.  As a result, the copying and communication of a broadcast of a performance and the making or communication of a preview copy will constitute unauthorised use for the purposes of Part XIA.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under

Part VA.

Item 100         Subparagraph 135KA(a)(i)

489.           This item amends subparagraph 135KA(a)(i) to extend the requirement to give a notice, in certain circumstances, that states that the relevant communication and any work or other subject matter in it might be subject to performers protection under the Act.  This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.

Item 101         Subsection 135P(3)

490.           This item amends sub-s135P(3) to omit all references to ‘relevant copyright owners’ and substitute ‘relevant right holders’.  This amendment is a consequence of the introduction of the concept of ‘relevant right holders’ as discussed at item 88.

Item 102         Paragraph 135Q(b)

491.           This item amends sub-s135Q(b) to omit the reference to ‘relevant copyright owners’ and substitute ‘relevant right holders’.  This amendment is a consequence of the introduction of the concept of ‘relevant right holders’ as discussed at item 88.

Item 103         At the end of section 135Z

492.           This item inserts a new sub-s135Z(2).  New sub-s135Z(2) provides that nothing in the part affects the right of a performer in a performance included in a broadcast to authorise an administering body to make or cause to be made a sound recording or a cinematograph film of the performance; and to communicate, or cause to be communicated, that recording or film.  The effect of this section is to preserve the ability of a performer to consent to making or communicating copies of broadcasts that include their performances outside of the statutory licence scheme in Part VA.

Item 104         At the end of subsection 248G(1)

493.           This item adds a note to sub-s248G(1) that provides that an institution can copy and communicate a broadcast of a performance without the authority of the performer in some circumstances under ss135E and 135F.

Item 105         At the end of subsection 248P(8)

494.           This item inserts a note to sub-s248P(8) that provides that an institution can copy and communicate a broadcast of a performance without contravening this section in some circumstances under ss135E and 135F.

Item 106         Application of amendments

495.           This item provides that the amendments made by Part 4 apply in respect of copies of broadcasts or communications of broadcasts made after the day on which this item commences, even if the performance was given before that day.

 



 

Part 5 - Duration of copyright in photographs

Copyright Act 1968

Item 107         Subsection 33(2)

496.           This item repeals sub-s33(2) and adds a new subsection that extends the application of sub-s33(2) to photographs.

497.           Before this amendment, sub-s33(2) set the term of copyright protection for a literary, dramatic or musical work, or an artistic work other than a photograph.  Subject to the remainder of s33, if copyright subsisted in the work, it continued until the expiration of 50 years after the expiration of the calendar year in which the author of the work died.

498.           Although photographs are categorised as artistic works under the Act, photographs were treated differently to other artistic works, as permitted by article 7(4) of the Berne Convention, and generally had a shorter term of copyright depending on whether the photograph was taken before or after 1 May 1969.  Article 9 of the WCT requires Parties not to apply the provisions of article 7(4) of the Berne Convention.  These amendments are intended to implement article 9.  This change will give photographers equal treatment with other artistic creators and, in most cases, benefit photographers by lengthening the term of protection for photographs.  However, there may be exceptions to this rule for some photographs taken after 1 May 1969 and not published until after the death of the author.

499.           Items 108 and 116 repeal the provisions which previously set different terms of copyright for photographs.

Item 108         Subsection 33(6)

500.           This item repeals sub-s33(6) to bring the term of copyright for photographs taken after 1 May 1969 into line with other artistic works.

501.           The repealed provision set the term of copyright protection for photographs taken after the commencement of the Act on 1 May 1969 as the expiration of 50 years after the expiration of the year in which the photograph is first published.  This was different to, and usually shorter than, the term of copyright for other artistic works under sub-s33(2), being the life of the author plus 50 years. 

502.           The repeal of sub-s33(6), together with the amendment to sub-s33(2) at item 107 , will give photographs still in copyright the same term of copyright as applies to other artistic works under sub-s33(2).  Item 116 makes a similar amendment in relation to photographs taken before

1 May 1969.

Item 109         Subsection 34(1)

503.           This item repeals sub-s34(1) and substitutes a new subsection.

504.           Currently sub-s34(1) establishes the duration of copyright in anonymous and pseudonymous works .  It recognises that the term of copyright cannot be calculated from the death of the author if the author is unknown, and overcomes this problem by providing that the duration of copyright in anonymous and pseudonymous works shall be a specified period after the work is first published.

505.           This amendment extends the operation of sub-s34(1) to photographs still covered by copyright.  This will give anonymous and pseudonymous photographs the same term of copyright as other such artistic works.

Item 110         Subsection 34(2)

506.           This item replaces the words ‘the last proceeding subsection’ with the words ‘Subsection (1)’.  This change reflects current drafting practice and gives a clearer meaning.

Item 111         Subsection 34(2)

507.           This item replaces the words ‘the expiration’ with ‘the end’ to bring the wording of the subsection in line with the terms adopted in other amendments in this Part .

Item 112         Subsection 51(1)

508.           This item amends sub-s51(1) to bring the wording of the subsection in line with other amendments in this Part.

509.           Subsection 51(1) permits the copying or communication of certain unpublished works that are open for public inspection in libraries or archives after a period of 50 years after the author died.  In part, this provision reflects that copyright may subsist indefinitely in old unpublished works in libraries or archives such as manuscripts, diaries and private papers thereby posing difficulties for researchers who may wish to copy or publish extracts of the works.

510.           The new wording applies this exception to all unpublished artistic works where a reproduction is kept in the open collection of a library or archives.  Previously, unpublished photographs and engravings were the only artistic works covered.  This change clarifies that the exception will apply to all unpublished artistic works in which copyright subsists.  This amendment does not alter the requirement that, for the exception to operate, more than 50 years must have elapsed since the end of the year in which the author died.

Item 113         Subsection 81(3)

511.           This item will remove the reference to s51 in sub-s81(3).

512.           The reference to s51 is incorrect since that provision deals with unpublished works while s81 applies only to published works of joint authorship.

Item 114         At the end of section 127

513.           This item adds new sub-s127(4) which modifies the operation of the presumption at sub-s127(3) relating to the authorship of photographs.

514.           Sections 126 to 131 contain a number of presumptions of fact which may assist plaintiffs in civil actions for infringement of copyright.  Subsection 127(3) is a special provision relating to photographs.  It provides a presumption, unless the contrary is shown, that the person who took a photograph is the person who owned the material on which the photograph is taken.  If this cannot be established, there is a similar presumption in relation to the ownership of the apparatus with which the photograph was taken.  If this, in turn, cannot be established the person who owned, or possessed the photograph at the time of their death is presumed to be the author.  The wording of these presumptions is connected to the provisions in the Act defining the author of a photograph.  If a photograph was taken after the commencement of the Act on 1 May 1969, under subsection 10(1) the author is the person who took the photograph.  If a photograph was taken before 1 May 1969, under s208 the author was the owner of the material on which the photograph was taken.

515.           The purpose of this amendment is to limit the operation of sub-s127(3) so that it applies only to determining ownership of the copyright in a photograph where the owner of the relevant material or apparatus was a body corporate.  This limitation takes into account the possibility that a body corporate may be the ‘author’ of a photograph under s208 because it was the owner of the material or apparatus used when the photograph was taken.  The amendment is to avoid confusion in the interaction of sub-s127(3) with other provisions dealing with the ownership or subsistence of copyright in a photograph which to make sense require a natural person as the author.  For example, other amendments in this Part mean that the term of copyright in photographs will be calculated according to the life of the author.

Item 115         At the end of section 208

516.           This item adds a new sub-s 208(2).

517.           Section 208 provides for the authorship of a photograph taken before the commencement of the Act on 1 May 1969.  It provides that the author is the person who owned the material on which the photograph was taken.

518.           It is possible that under s208 a body corporate, which owned the material on which the photograph was taken, may be the author of a photograph.  New sub-s208(2) provides that this rule applies only where a reference to the author of a photograph relates to ownership of copyright.  The new provision will avoid confusion concerning the interaction of sub-s208(1) with other provisions dealing with the ownership or subsistence of copyright in a photograph which to make sense require a natural person as the author.  For example, other amendments in this Part mean that the term of copyright in photographs taken before 1 May 1969, and still in copyright, will be calculated according to the life of the author.

Item 116         Section 212

519.           This item repeals s212 to bring the term of copyright for photographs taken before 1 May 1969 into line with other artistic works.

520.           Under s212, the duration of copyright for a photograph taken before the commencement of the Act on 1 May 1969 was 50 years after the expiration of the calendar year in which the photograph was taken.

521.           The effect of repealing s212, together with the operation of s207, is that photographs taken before 1 May 1969 will have the same term of copyright as the Act provides for photographs taken after than date, provided copyright still subsists.

522.           Under the amendments at items 107 and 109, the duration of copyright in photographs under sub-s33(2) will be made the same as for other artistic works; that is, the life of the author plus 50 years.

Item 117         Application

523.           This item provides that the amendments made by this Part apply to copyright in photographs that subsists on or after the day on which this item commences. 

Item 118         Compensation scheme for agreements made before Royal Assent

Application of item

524.           This item enables a person to obtain reasonable compensation from a copyright owner where the extension of copyright term frustrates an agreement made before the date of Royal Assent.  It also permits the person to carry out the agreement if the copyright owner does not object or pay reasonable compensation.

525.           For the new provision to apply, a person must have entered into an agreement for the purposes of doing an act that would otherwise infringe the copyright, where that agreement was made in reliance on the copyright having ceased to subsist before that time, and because of the amendments made by this Part, the copyright continues to subsist past that time.

526.           The new provision provides that the owner of copyright may notify the person that the copyright owner objects to an act before that person does the act.  The copyright owner and the person may agree on reasonable compensation that the owner is to provide to the person and the day by which the owner is to provide that compensation. If the person and the owner cannot agree, either of them may apply to the Copyright Tribunal for the tribunal to determine those matters.

527.           Where the Tribunal has made such a determination, the person may recover the amount determined by the tribunal from the owner as a debt, if it is not paid by the time determined.

528.           If an owner does not notify or pay compensation to the person, the person can do the act at any time after the copyright would have ceased if not for the amendments under this Part.

529.           This item is not inserted into the Copyright Act.  Instead it is located within the United States Free Trade Agreement Implementation Act 2004.

Item 119         Applications to Copyright Tribunal for determination of reasonable compensation payable

530.           This item provides for applications to the Copyright Tribunal for the determination of compensation under item 118 .

531.           The new provision provides that where an application is made to the Copyright Tribunal under item 118, for the determination of reasonable compensation, then the parties to the application are the owner of the copyright and the person mentioned in that paragraph. The Tribunal must consider the application and make an order determining an amount of compensation that it considers reasonable in all of the circumstances. The definition of ‘owner’ clarifies that it includes an exclusive licensee of the copyright in the photo at that time in respect of that act.

532.           This item is not inserted into the Copyright Act.  Instead it is located within the United States Free Trade Agreement Implementation Act 2004.





Part 6 - Duration of copyright in works

Copyright Act 1968

Item 120         Subsection 33(2)

533.           Pursuant to article 17.4.4 of the Australia - United States Free Trade Agreement, this item extends the duration of copyright protection for a literary, dramatic, musical or artistic work under sub-s33(2) to the end of 70 years after the end of the calendar year in which the author of the work died.  This will lengthen the duration of copyright for works previously covered by this provision by 20 years, provided the work is still in copyright.

Item 121         Subsections 33(3) and (5)

534.           This item amends sub-ss33(3) and (5) by lengthening the term of copyright under those provisions to the end of 70 years after the end of the year in which the relevant event occurred.

535.           On its wording, sub-s33(2) applies to published and unpublished literary, dramatic, musical and artistic works.  However, sub-s33(3) sets the term of protection for literary (other than computer programs), dramatic or musical works which are unpublished, have not been broadcast or performed in public and records of which have not been offered for sale to the public at the time of the author’s death.  Where sub-s33(3) applies, the term of protection is indefinite until such time as one of these acts occurs.  The effect of this amendment is to retain this general position but to extend the duration of copyright, if it subsists, from 50 years to 70 years after the end of the year in which the first act occurred.

536.           Similarly, sub-s33(5) operates where an engraving has not been published before the death of the author.  In that case, copyright, if it subsists, continued to subsist until 50 years after the year in which the engraving is first published.  This item retains this position but extends the duration of copyright to 70 years after the end of the year in which the engraving is first published.

Item 122         Subsection 34(1)

537.           This item brings sub-s34(1) in line with other amendments in this Part by lengthening the duration of copyright protection in anonymous and pseudonymous works, which are still in copyright, to the end of 70 years after the end of the calendar year in which the work was first published.

Item 123         Subsection 81(2)

538.           This item amends sub-s81(2) which makes special rules for the duration of copyright in a work of joint authorship that was first published under two or more names, all of which were pseudonyms. 

539.           Section 34, as amended by item 122 , will provide that the term of copyright in an anonymous or pseudonymous work, will be 70 years after the end of the year of publication.  However, s34 ceases to apply if at any time during the 70 years the identity of the author is known or can be ascertained.

540.           Subsection 81(2) previously provided that the term of copyright in a pseudonymous work of joint authorship would be calculated from the expiration of the year in which the last known author died if the identity of one or more of the authors was generally known or could be ascertained by reasonable inquiry at any time within 50 years after the expiration of the year in which the work was first published.

541.           This amendment extends the period in which the identity of one or more authors may be identified from 50 to 70 years after first publication as a consequence of item 122 and other amendments in this Part which lengthen the term of copyright.

Item 124         Section 93

542.           This item extends the duration of copyright in sound recordings to the end of 70 years after the end of the calendar year in which the recording was first published.

543.           Previously the Act made a distinction between sound recordings made before the commencement of the Act on 1 May 1969 and those made after that date.  If a sound recording was made after the commencement of the Act, and copyright subsisted in it, the copyright continued to subsist under s93 for 50 years after the end of the year in which it was first published.  If copyright subsisted in a sound recording made before 1 May 1969, it continued to subsist under sub-s220(3) for 50 years after the end of the year in which the recording was made.

544.           Subsection 220(3) is repealed by item 130 .  The effect is that the longer term of copyright introduced in this amendment to s93 will apply to sound recordings made before or after 1 May 1969, provided that copyright subsists in the recording on the day that the amendment commences.

Item 125         Section 94

545.           This item extends the duration of copyright in cinematograph films to the end of 70 years after the end of the calendar year in which the film was first published.

546.           This amendment is made to sub-s94(1) which operates where copyright subsists in a film because the maker was a qualified person or the film was made in Australia.  The amendment also is made to sub-s94(2) which applies if copyright subsists in a film due to its first publication in Australia.  Previously, the term of copyright under both sub-ss94(1) and (2) was 50 years after the expiration of the year of first publication.

547.           The longer term of protection in sub-ss94(1) and (2) will apply to cinematograph films made after the commencement of the Act on 1 May 1969, provided that copyright subsists in the film on the day that this amendment commences.  Under s221, copyright as a cinematograph film does not subsist in a film made before 1 May 1969.  However, films made before 1 May 1969 can be protected as an original dramatic work or as photographs, and if such copyright subsists on commencement of this Part, they may benefit from the longer term of protection that is given to dramatic works and photographs by item 120.

Item 126         Paragraph 128(a)

548.           This item amends paragraph 128(a) by omitting ‘50 years’ and substituting ‘70 years’ as a consequence of the amendments increasing the duration of copyright in works.

549.           Subsection 128 provides that where a work was first published in Australia in the 50 years preceding the calendar year in which an action for infringement of copyright commenced, and a name purporting to be that of the publisher appeared on copies of the work as first published, copyright is presumed to subsist in the work and the publisher is presumed, unless the contrary is established, to have been the owner of the copyright at the time of publication.

550.           This item is intended to maintain the benefit of the presumption at s128 for plaintiffs by having regard to the longer term of copyright protection adopted in this Part.

Item 127         At the end of subsection 132(1)

551.           This item adds a note at the end of sub-s132(1) to the effect that a person who makes an agreement before the United States Free Trade Agreement Implementation Act 2004 receives Royal Assent, in accordance with items 118 and 132 of Schedule 9 to that Act, might not commit an offence under this section.  It is noted that these items are not inserted into the Copyright Act.  Instead they are located within the United States Free Trade Agreement Implementation Act 2004.

Item 128         Paragraphs 187(2)(b) and 188(2)(b)

552.           This item amends paragraphs 187(2)(b) and 188(2)(b) by omitting ‘the expiration of 50 years after the expiration’ and substituting ‘the end of 70 years after the end’ as a consequence of other amendments increasing the duration of copyright in works, sound recordings and cinematograph films.

553.           Paragraphs 187(2)(b) and 188(2)(b) contain special provisions for the duration of copyright in works, sound recordings and cinematograph films published by, or under the direction or control of, prescribed international organizations.  Previously, under those provisions, copyright subsisted until the expiration of 50 years after the expiration of the calendar year in with the work, sound recording or cinematograph film was first published.  This amendment extends the term of copyright to 70 years after the end of the calendar year in which the work, recording or film was first published, provided copyright subsists on the day this amendment commences.

Item 129         Paragraph 188(3)(b)

554.           This item amends paragraph 188(3)(b) to bring the wording of the paragraph in line with other amendments in this Part.

Item 130         Subsection 220(3)

555.           This item repeals sub-s220(3).

556.           Prior to these amendments, the Act distinguished between sound recordings made before the commencement of the Act on 1 May 1969 and sound recordings made after that date.  If copyright subsisted in a sound recording made before 1 May 1969, it continued to subsist under sub-s220(3) for 50 years after the end of the year in which the recording was made.  Section 93 provided a different duration of copyright for sound recordings made after 1 May 1969.

557.           The effect of repealing sub-s220(3) is that, due to s207, sound recordings made before 1 May 1969 will have the same term of copyright as the Act provides for recordings made after than date.

558.           Item 124 amends s93 to lengthen the duration of copyright in sound recordings.  This longer term of copyright will apply to sound recordings made before 1 May 1969, provided that copyright subsists in the recording on the day that the amendments in this Part commence.

Item 131         Application of amendments

559.           This item provides that the amendments made by this Part apply to copyright in works and other subject matter that subsists on or after the day on which this item commences.

Item 132         Compensation scheme for agreements made before Royal Assent

560.           This item enables a person to obtain reasonable compensation from a copyright owner where the extension of copyright term frustrates an agreement made before the date of Royal Assent.  It also permits the person to carry out the agreement if the copyright owner does not object or pay reasonable compensation.

561.           For the new provision to apply, a person must have entered into an agreement for the purposes of doing an act that would otherwise infringe the copyright, where that agreement was made in reliance on the copyright having ceased to subsist before that time, and because of the amendments made by this Part, the copyright continues to subsist past that time.

562.           The new provision provides that the owner of copyright may notify the person that the copyright owner objects to an act before that person does the act.  The copyright owner and the person may agree on reasonable compensation that the owner is to provide to the person and the day by which the owner is to provide that compensation. If the person and the owner cannot agree, either of them may apply to the Copyright Tribunal for the tribunal to determine those matters.

563.           Where the Tribunal has made such a determination, the person may recover the amount determined by the tribunal from the owner as a debt, if it is not paid by the time determined.

564.           If an owner does not notify or pay compensation to the person, the person can do the act at any time after the copyright would have ceased if not for the amendments under this Part.

565.           This item is not inserted into the Copyright Act.  Instead it is located within the United States Free Trade Agreement Implementation Act 2004.

Item 133         Applications to Copyright Tribunal for determination of reasonable compensation payable

566.           This item provides for applications to the Copyright Tribunal for the determination of compensation under item 132.

567.           The new provision provides that where an application is made to the Copyright Tribunal under item 132, for the determination of reasonable compensation, then the parties to the application are the owner of the copyright and the person mentioned in that paragraph. The Tribunal must consider the application and make an order determining an amount of compensation that it considers reasonable in all of the circumstances. The definition of ‘owner’ clarifies that it includes an exclusive licensee of the copyright in the photo at that time in respect of that act.

568.           This item is not inserted into the Copyright Act.  Instead it is located within the United States Free Trade Agreement Implementation Act 2004.



Part 7 - Electronic rights management information

 

Copyright Act 1968

 

General

569.           The items in this Part implement obligations under Article 17.4.8 of the Australia - United States Free Trade Agreement that relate to electronic rights management information (ERMI).  ERMI typically includes details about the copyright owner and the terms and conditions of the use of copyright material that is electronically attached to, or appears in connection with, the material.  The Act already includes provisions protecting ERMI and provides for civil remedies and criminal offences where ERMI is altered or removed.  The existing provisions apply to ERMI that is attached to a copy of a work or other subject-matter. Under the Agreement, protection of ERMI, including both civil remedies and criminal offences, is extended to include ERMI that is separate from, but has at some point in time appeared in connection with a copy of the work or other subject matter.  This Part effectively broadens the protection afforded to ERMI in the Act. 

Item 134         Subsection 10(1) (definition of electronic rights management information )

570.           This item repeals the current definition of ‘electronic rights management information’ (ERMI) in sub-s10(1) and substitutes a new definition for that term.  The new definition makes it explicit that the definition only covers information that is electronic.  Under the existing definition, ERMI has to be ‘attached to, or embodied in, a copy of a work or other subject-matter’.  The new definition retains this as well as the other existing elements of the current definition and extends the definition to also cover information that appears in connection with a copy of a work or other subject-matter. ERMI is also able to exist independently of the work or other subject-matter providing that it was originally attached to or appeared in connection with a copy of the work or other subject-matter. 

Item 135         Paragraph 116B(1)(a)

571.           This item repeals the current paragraph 116B(1)(a) concerning the removal or alteration of ERMI and substitutes a new paragraph 116B(1)(a).  The amendment is a consequence of the broadening of the definition of ERMI to cover information that had been attached to, or appeared in connection with, a copy of a work or other subject-matter.  While retaining the elements of the current paragraph 116B(1)(a) the new provision ensures that a civil remedy is also available where the ERMI appears in connection with the copyright material. 

Item 136         Subparagraph 116C(1)(a)(i)

572.           This item repeals the current subparagraph 116C(1)(a)(i) and substitutes a new subparagraph 116C(1)(a)(i) so that the requirement that distribution be ‘for the purpose of trade’ is no longer included.  The new provision applies where a person distributes a copy of the work or other subject-matter to the public.  The current heading to s116C is also replaced with a new heading ‘Distribution to the public etc of works whose electronic rights management information has been removed or altered.’

Item 137         Subparagraph 116C(1)(a)(ii)

573.           This item amends subparagraph 116C(1)(a)(ii) by omitting the phrase ‘for the purpose of trade’ and substituting the term ‘for distribution to the public’.  The amended provision applies where a person imports into Australia a copy of the work or other subject-matter for distribution to the public.

Item 138         Paragraph 116C(1)(b)

574.           This item repeals the current paragraph 116C(1)(b) and substitutes a new paragraph 116C(1)(b) so that the requirement that ERMI be attached to the copyright material is no longer included.  The new provision ensures that a civil action may be brought by the owner or licensee of the copyright for removal or alteration of ERMI whether the ERMI is attached to or appears in connection with the work or other subject-matter. 

Item 139         After section 116C

575.           This item inserts a new s116CA and a new s116CB.

New 116CA               Distribution and importation of electronic rights management information that has been removed or altered

576.           The Act currently does not have any provision that proscribes dealing with ERMI that has been removed from the work or other subject-matter, or altered, without authority.  New sub-ss116CA(1) and 116CA(2) ensure that a civil action may be brought by the owner or exclusive licensee of the copyright for the distribution of ERMI or the importing of ERMI for distribution where that ERMI has been removed from a copy of the work or subject-matter, or altered, without the permission of the owner or licensee of the copyright.  For the action to be available the person who distributes or imports the ERMI must have known that the ERMI had been removed or altered without that permission and have known, or ought reasonably to have known, that the distribution of importing would induce, enable, facilitate or conceal an infringement of copyright.  This mirrors the knowledge requirements in current sub-ss116C(1)(c) and 116C(1)(d) in relation to the new cause of action. 

577.           New sub-s116CA(3) contains a presumption in relation to the knowledge elements in paragraphs 116CA(1)(d) and 116CA(1)(e) that mirrors the presumption in current sub-s116C(3) in relation to the new cause of action.

New 116CB                Exception relating to national security and law enforcement

578.           New s116CB inserts a new provision that states that none of the causes of action in relation to ERMI set out in ss116B to 116CA apply where something is lawfully done for the purposes of law enforcement or national security by or on behalf of the Commonwealth or a State or Territory; or an authority of the Commonwealth, a State or a Territory. 

Item 140         Subsections 116D(1) and (2)

579.           This item amends s116D that deals with remedies in civil actions relating to ERMI.  The amendment ensures that this provision applies to the new s116CA. 

Item 141         Subsections 132(5C) and (5D)

580.           This item repeals current sub-ss132(5C) and 132(5D) and inserts new sub-ss132(5C), 132(5D) and 132(DA) concerning offences relating to ERMI and ensure that the offences not only apply where the ERMI is or was attached to a copy of a work or other subject-matter but also where the ERMI appears or appeared in connection with a copy of a work or other subject-matter.

Offences relating to electronic rights management information

581.           New sub-s132(5C) proscribes the removal or alteration of ERMI from a work or other subject-matter in which copyright subsists, except with the permission of the copyright owner or licensee.  The offence applies where the person is reckless as to whether the removal or alteration of the ERMI will induce, enable, facilitate or conceal an infringement of the copyright. 

582.           New sub-s132(5D) proscribes the commercial distribution, commercial importation or communication to the public of a copy of a work or other subject-matter, without the permission of the copyright owner or licensee of the copyright, if any ERMI has been removed or altered.  In relation to the offences relating to distribution and importation, the acts must have been carried out with the intention of trading and obtaining a commercial advantage or profit, which is consistent with other new criminal provisions in this Schedule.  The first requisite mental element for each offence in new sub-s132(5D) is that the defendant knows that the ERMI has been removed or altered without the permission of the copyright owner or licensee.  The second requisite mental element is that the defendant is reckless as to whether, the doing of the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright. 

583.           New sub-s132(5DA) proscribes the distribution of ERMI and the importation of ERMI that has been altered or removed, without the permission of the copyright owner or the licensee of the copyright.  The acts must have been carried out with the intention of trading and obtaining a commercial advantage or profit, which is consistent with other new criminal provisions in this Schedule.  The first requisite mental element for each offence in new sub-s132(5DA) is that the defendant knows that the ERMI has been removed or altered without the permission of the copyright owner or licensee.  The second requisite mental element is that the defendant is reckless as to whether, the doing of the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright. 

584.           The fact that the word ‘knows’ in current sub-ss132(5C) and 132(5D) has not been included in new sub-ss132(5C), 132(5D) or 132(5DA) is of no significance and results from the fact that under the Criminal Code if the lesser standard of recklessness is proved, it would also cover the situation where the defendant had the requisite knowledge.

Item 142         After subsection 132(5E)

Defence for certain public institutions etc

585.           This item inserts a new sub-s132(5EA) and provides a specific exception from the offences in relation to ERMI for the lawful activities of certain public institutions in performing their functions.  These public institutions are listed in sub-s132(5EA).  The exception applies to the following bodies: a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); archives; an educational institution; and a public non-commercial broadcaster, including a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992 or a body that holds a community broadcasting licence within the meaning of that Act.  In relation to ‘archives’ and ‘educational institution’, these terms are defined in sub-s10(1). 

Item 143         Subsection 132(5J)

586.           This item amends sub-s132(5J) to add new sub-s132(5EA) to the existing list of provisions covered by sub-s132(5J) in relation to the evidential burden imposed on the defendant in relation to the listed provisions.  It is considered that the matters referred to in sub-s132(5EA) will be peculiarly within the knowledge of the defendant, and will be significantly more costly for the prosecution to disprove than for the defendant to establish.  The amendment provides that the only burden of proof the defendant bears in respect of sub-s132(5EA) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act was done, or matter in question existed. 

Item 144         Subsection 134(2)

587.           This item amends sub-s134(2) to add sub-s116CA to the list of sections referred to in sub-s134(2) which deals with limitations of actions in respect of infringement of copyright. 

Item 145         Application of amendments

588.           This item provides that the amendments made by this Part apply in respect of acts done after the day on which this item commences. 

 



Part 8 - Criminal offences

 

Copyright Act 1968

 

General

589.           The items in this Part implement obligations under Article 17.11.26 of the Australia - United States Free Trade Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful copyright piracy on a commercial scale.  Under the Agreement, wilful copyright piracy on a commercial scale includes significant wilful infringements of copyright that have no direct or indirect motivation of financial gain and wilful infringements for the purposes of commercial advantage or financial gain.

590.           It is intended that the expression ‘commercial advantage’ where used in the offences in the Act may include circumstances where a business has knowingly infringed copyright material for the purpose of commercial gain. It is also intended that the expression ‘profit’ where used in the offences in the Act may include circumstances where a person (whether a business entity or not) commits an infringement by knowingly selling copyright material.

Item 146         Paragraphs 132(1)(b) and (c)

591.           This items inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in paragraphs 132(1)(b) and (c).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

592.           This item amends paragraph 132(1)(b) so that it is an offence where a person, by way of trade and with the intention of obtaining a commercial advantage or profit, offers or exposes for sale or hire, an article that they know or ought reasonably to know to be an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

593.           This item also amends paragraph 132(1)(c) so that it is an offence where a person by way of trade and with the intention of obtaining a commercial advantage or profit, exhibits a copyright article in public that they know or ought reasonably to know to be an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

594.           In accordance with current drafting practices, Note 1 inserts the heading ‘ Offences relating to infringing copies’ to sub-s132(1).  This is intended to assist readers to identify the content of the provision.

Item 147         Subparagraph 132(1)(d)(i)

595.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 132(1)(d)(i).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.  

596.           This item amends subparagraph 132(1)(d)(i) so that it is an offence where a person imports a copyright article into Australia by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing for sale of hire, that they know or ought reasonably to know to be an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item    148      Subparagraph 132(1)(d)(ii)

597.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 132(1)(d)(ii).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

598.           This item amends subparagraph 132(1)(d)(ii) so that it is an offence where a person imports a copyright article into Australia for the purpose of distributing the article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, that they know or ought reasonably to know to be an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 149         Subparagraph 132(1)(d)(iii)

599.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 132(1)(d)(iii).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.  

600.           This item amends subparagraph 132(1)(d)(iii) so that it is an offence where a person imports a copyright article into Australia for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, exhibiting the article in public that they know or ought reasonably to know to be an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 150         Paragraph 132(2)(a)

601.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in paragraph 132(2)(a).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

602.           This item amends paragraph 132(2)(a) so that it is an offence where a person distributes a copyright article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, where the person knows or ought reasonably to know, that the article is an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 151         Paragraph 132(2A)(a)

603.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in paragraph 132(2A)(a).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.  

604.           This item amends paragraph 132(2A)(a) so that it is an offence where a person has in his or her possession a copyright article for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the article, where the person knows or ought reasonably to know, that the article is an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 152         Paragraph 132(2A)(b)

605.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in paragraph 132(2A)(b).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

606.           This item amends paragraph 132(2A)(b) so that it is an offence where a person has in his or her possession a copyright article for the purpose of distributing the article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, where the person knows or ought reasonably to know, that the article is an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 153         Paragraph 132(2A)(c)

607.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in paragraph 132(2A)(c).  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

608.           This item amends paragraph 132(2A)(c) so that it is an offence where a person has in his or her possession a copyright article for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, exhibiting the article in public where the person knows or ought reasonably to know, that the article is an infringing copy of the work.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

609.           In accordance with current drafting practices, notes at the foot of Item 153 insert new headings to assist readers identify the subject matter of certain provisions.  Note 1 inserts the heading ‘ Offence relating to infringing public performances of literary, dramatic or musical works ’ to subsection 132(5).  Note 2 inserts the heading ‘ Offences relating to sound recordings or films heard or seen in public’ to sub-s132(5AA).  Note 3 inserts the heading ‘ Offences relating to circumvention services and devices’ to sub-s132(5A).

Item 154         Before subsection 132(5E)

Offence relating to significant infringement of copyright

610.           This item inserts new sub-s132(5DB) a new offence relating to a significant infringement of copyright on a commercial scale.  Under the new provision, a person commits an offence if they engage in conduct that results in one or more infringements of the copyright in a work or other subject-matter; the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and the infringement or infringements occur on a commercial scale.  The offence is intended to implement the obligation under the Agreement that criminal procedures and remedies apply to a person who has committed significant wilful infringement of copyright on a commercial scale who may be acting with no direct or indirect motivation of financial gain.  This enables the offence to impose criminal liability on a person acting with no direct or indirect motivation of financial gain in certain circumstances.  Note that the fault elements of the Criminal Code Act 1995 apply.

611.           This item also inserts a new sub-s132(5DC) to clarify that certain matters are to be taken into account in determining whether one or more infringements on a commercial scale under sub-s132(5DB) occurs.  These include the volume and value of any articles that are infringing copies that constitute the infringement or infringements.  This provision is non-exhaustive because the factors that may be relevant to the question of determining whether one or more infringements on a commercial scale has occurred may be wider than those specified.

Item 155         Subsection 132(5E)

612.           This item amends sub-s132(5E) to provide that sub-ss(5C), (5D) and the new sub-ss132 (5DA) and 132(5DB) do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of a Commonwealth, State or Territory or an authority of the Commonwealth, State or Territory.  This law enforcement/national security exception currently applies to offences in sub-ss132(5A) and (5B).

613.           In accordance with current drafting practices, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions.  Note 1 inserts the heading ‘ Defence relating to law enforcement and national security ’ to sub-s132(5E).  Note 2 inserts the heading ‘ Permitted purpose exceptions ’ to sub-s132(5F).  Note 3 inserts the heading ‘ Section applies only in respect of acts done in Australia’ to sub-s132(6).  Note 4 inserts the heading ‘ Penalties’ to sub-s132(6AA).

Item 156         Subsection 132(6A)

614.           This item amends sub-s132(6A) to provide that a person who contravenes new sub-ss132 (5DA) or 132(5DB) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.

615.           In accordance with current drafting practices, the note at the foot of this item inserts the heading ‘ Proceedings may be brought in Federal Court etc’ to sub-s132(7).  This is intended to assist readers identify the content of the provision. 

Item 157         Subsection 132(9)

616.           This item inserts a definition of ‘copyright material’ to mean a work, published edition of a work, sound recording, cinematograph film, television or sound broadcast, or a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.  The same definition is used in s182B of the Act and, for reasons of consistency, it is necessary to include it in sub-s132(9) because the expression ‘copyright material’ is included in the definition of ‘profit’ in the same section under item 158.

617.           In accordance with current drafting practices, the note at the foot of this item inserts the heading ‘ Definitions’ to sub-s132(9).  This is intended to assist readers identify the content of the provision.

Item 158         Subsection 132(9)

618.           This items inserts a definition of ‘profit’ into sub-s132(9) to provide that profit does not include any advantage, benefit or gain resulting from or associated with private or domestic use of any copyright material in the work or other subject-matter.  This definition ensures that a person cannot be subject to criminal proceedings where, for example, they have obtained an infringing copy of copyright material for their own private use. ‘Domestic use’ can include use involving another person.  Where there are private or domestic uses and there are also commercial uses of the copyright material, the fact that there is a private or domestic use is not intended to exclude any liability that results from the commercial use.

Item 159         At the end of section 132

Burden of proof relating to profit

619.           This item inserts a new sub-s132(11) which provides that, in a prosecution for an offence against s132, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.

Item 160         Application

620.           This item provides that the amendments made by this Part apply to acts done after the day on this item commences.  Accordingly, the provisions do not operate retrospectively.



Part 9 - Amendments Relating To Broadcast Decoding Devices

General

621.           The items in Part 9 implement obligations under Article 17.7 of the Australia - United States Free Trade Agreement to provide for criminal offences and civil remedies in respect of devices used to decode encrypted program-carrying signals, and in relation to receiving, making use of, and further distributing program carrying signals.  This obligation in relation to enhancing protection against pay television piracy is implemented on a technology-neutral basis, extending coverage to all relevant modes of delivery of encrypted program-carrying broadcast signals, including cable. 

Item 161         Section 135AL 

622.           This item inserts a definition of ‘channel provider’ into s135AL to provide that channel provider means a person who packages a channel (which might include programs produced by the person); supplies a broadcaster with the channel; and carries on a business that involves the supply of the channel.  An additional requirement for the definition to apply is that, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service.  This definition is based on a definition in s103C of the Broadcast Services Act 1992

Item 162         Section 135AL 

623.           This item inserts a definition of ‘copyright material’ to mean a work, published edition of a work, sound recording, cinematograph film, television or sound  broadcast, or a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.  The same definition is used in s182B of the Act and, for reasons of consistency, it is necessary to include it in sub-s135AL to ensure that the expression ‘copyright material’ in the definition of ‘profit’ in s135AL (in item 163) has the same meaning.

Item 163         Section 135AL 

624.           This item inserts a definition of ‘profit’ into s135AL to provide that profit does not include any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material.  This definition is consistent with corresponding changes being made to the general criminal law provisions in s132.  The definition ensures that a person cannot be subject to criminal proceedings where they have obtained an advantage, benefit or gain resulting from or associated with private or domestic use of any copyright material.  Such persons may still be subject to a civil action.  Where there are private or domestic uses and there are also commercial uses of the copyright material, the fact that there is a private or domestic use is not intended to exclude any liability that results from the commercial use.

Item 164         Subparagraph 135AN(1)(b)(iii)

625.           This item amends subparagraph 135AN(1)(b)(iii) to provide that civil action may be brought in respect of the export of a broadcast decoding device from Australia for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster.  As with all the other acts in paragraph 135AN(1)(b), the action may be brought against a person where a broadcaster has made an encoded broadcast and where that person knew, or ought reasonably to have known, that the broadcast decoding device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  Although the concept of distribution in s135AN is likely to include ‘exporting’, this provision makes it clear that it does. 

626.           In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions.  Note 1 inserts the heading ‘ Actions in relation to the manufacture of and dealing with broadcast decoding devices ’ to sub-s135AN(1).  Note 2 inserts the heading ‘ Exception relating to law enforcement and national security’ to sub-s135AN(2). 

Item 165         Subsection 135AN(3) 

627.           This item repeals current sub-s135AN(3) and inserts a new sub-s135AN(3) to expand the category of persons who can bring a civil action against a person for an alleged contravention of sub-s135AN(1).  Under new paragraphs 135AN(3)(a)-(c) a person may bring a civil action for an alleged contravention of sub-s135AN(1), if that person has an interest in the copyright in the broadcast, an interest in copyright in the content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast.

628.           In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions.  Note 1 inserts the heading ‘ Relief etc ’ to sub-s135AN(4).  Note 2 inserts the heading ‘ Presumption relating to defendant’s knowledge ’ to sub-s135AN(7).  Note 3 inserts the heading ‘ Limitation on bringing actions ’ to sub-s135AN(8). 

Item 166         Subsection 135ANA(1)

629.           This item is a technical amendment that substitutes ‘this subsection’ for ‘this section’ in sub-s135ANA(1).  This is necessary because of the proposed insertion of sub-s(1A) under item 169, which introduces another form of civil contravention. 

630.           In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions.  Note 1 provides that the heading to section 135ANA is altered by omitting ‘for commercial purposes’.  This reflects the repeal of paragraph 135ANA(1)(c) by item 168.  Note 2 inserts the heading ‘ Actions in relation to the use of broadcast devices ’ to sub-s135ANA(1). 

Item 167         Paragraph 135ANA(1)(b)

631.           This item is a minor technical amendment which clarifies that the encoded broadcast referred to in paragraph 135ANA(1)(b) is the same encoded broadcast referred to in paragraph 135ANA(1)(a).  This ensures that a civil action can only be brought in respect of the encoded broadcast which has been made by the broadcaster under paragraph 135ANA(1)(a), rather than any encoded broadcast. 

Item 168         Paragraph 135ANA(1)(c)

632.           This item repeals paragraph 135ANA(1)(c).  The effect of this amendment is that the existing civil action provision for the unauthorised use of a decoding device is extended from unauthorised use for commercial purposes to cover the unauthorised use for any purpose (including private purposes) of broadcast decoding devices. 

Item 169         After subsection 135ANA(1)

633.           This item inserts a new sub-s135ANA(1A) to provide that a person may be subject to a civil action in circumstances where a broadcast decoding device has been used to gain access to an encoded broadcast without the authorisation of the broadcaster; that person has further distributed the encoded broadcast; that person knows that the broadcaster had not authorised access to the broadcast; and the distribution affects prejudicially a person with either an interest in the copyright in the broadcast, an interest in copyright in any content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast.  This new provision is intended to apply where a person has engaged in further distribution of an encoded broadcast after the person has accessed the encoded broadcast without the authorisation of the broadcaster.  This goes beyond the civil provision in s135ANA of the Act which allows civil action to be brought in respect of unauthorised use of a broadcasting device alone. 

634.           This item also inserts a new sub-s(1B) to provide that a person may be subject to a civil action in circumstances where a broadcast decoding device has been used to gain access to an encoded broadcast without the authorisation of the broadcaster; that person has received the broadcast that has been accessed by the device; that person knew that the broadcaster had not authorised the access to the encoded broadcast.  This provision is intended to apply where a person has not used a broadcast decoding device to gain unauthorised access to an encoded broadcast, but has accessed the encoded broadcast knowing that it had been accessed without the authorisation of the broadcaster. 

635.           In accordance with current drafting practice, a note at the foot of this item inserts a new heading to assist readers identify the subject matter of certain provisions.  The note inserts the heading ‘ Exception relating to law enforcement and national security ’ to sub-s135ANA(2).

Item 170         Subsection 135ANA(3)

636.           This item repeals current sub-s135ANA(3) and inserts a new sub-s135ANA(3) to expand the category of persons who can bring a civil action against a person for an alleged contravention of sub-s135ANA(1), (1A) or (1B).  Under new paragraphs 135ANA(3)(a)-(c) a person may bring a civil action for an alleged contravention of sub-ss135ANA(1), (1A) or (1B), if that person has an interest in the copyright in the broadcast, an interest in copyright in any content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast. 

637.           In accordance with current drafting practice, a note at the foot of this item inserts the heading ‘ Relief etc ’ to assist readers identify the subject matter of sub-s135ANA(4). 

Item 171         Paragraph 135ANA(5)(a)

638.           This item amends paragraph 135ANA(5)(a) to include ‘, or (1A)(c) or (1B)(c)’ after ‘paragraph (1)(b)’.  The effect of this amendment is that a court may, in considering an award of damages, have regard to the flagrancy with which the defendant did an act described in paragraph 135ANA(1A)(c) or (1B)(c), ie a distribution, or the authorisation of a distribution of an encoded broadcast, or receiving a broadcast that has been accessed by a decoding device without the authorisation of the broadcaster.

Item 172         Paragraph 135ANA(5)(b)

639.           This item amends paragraph 135ANA(5)(b) to substitute ‘any trade’ with ‘the trade’ that is carried on by, or in association with the defendant.  This is necessary to reflect the repeal of paragraph 135ANA(1)(c) which contained the element that a person uses, or authorises the use, of a broadcast decoding device for the purposes of, or in connection with, a trade or business carried on by, or in association with, the person.  The expression ‘the trade’ referred to the trade in repealed paragraph 135ANA(1)(c). 

Item 173         Subsection 135ANA(7)

640.           This item amends sub-s135ANA(7) to include ‘, (1A)(c) or (1B)(c)’ after ‘paragraph (1)(b)’.  The effect of this amendment is that an action cannot be brought against a person under s135ANA in respect of an act in paragraph 135ANA(1A)(c) (ie a distribution, or the authorisation of a distribution of an encoded broadcast) or paragraph 135ANA(1B)(c) (ie the receiving of a broadcast that has been accessed by a broadcast decoding device) after the expiration of 6 years from the time when the person did the act.

641.           In accordance with current drafting practice, a note at the front of this item inserts the heading ‘Limitation on bringing actions’ to assist readers identify the subject matter of sub-s135ANA(7).

Item 174         Paragraph 135AS(1)(b)

642.           This item amends paragraph 135AS(1)(b) to include the phrase ‘and with the intention of obtaining a commercial advantage or profit’.  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

643.           The effect of this amendment is that it will be an offence where, by way of trade and with the intention of obtaining a commercial advantage or profit, a person offers or exposes for sale of hire, a broadcast decoding device, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

644.           In accordance with current drafting practices, a note at the front of this item inserts the heading ‘Offences in relation to manufacture of or dealing with broadcast decoding devices’ to assist readers identify the subject matter of sub-s135AS(1).

Item 175         Paragraph 135AS(1)(c)

645.           This item repeals current paragraph 135AS(1)(c) and inserts a new paragraph 135AS(1)(c) to make it an offence to distribute, including by exporting from Australia, a broadcast decoding device with the intention of trading and obtaining a commercial advantage or profit, or in any other activity that will affect prejudicially a broadcaster.  This implements the requirement under article 17.7.1 of the Agreement for the creation of a criminal offence where a person has exported a broadcast decoding device.  Although the export of a broadcast decoding device is likely to be covered by the existing ‘distribution’ element in the current offence, the amendment makes it clear that this is the case. 

646.           New paragraph 135AS(1)(c) includes the phrase ‘and with the intention of obtaining a commercial advantage or profit’.  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

647.           The effect of this amendment is that it will be an offence where a person distributes a broadcast decoding device with the intention of trading and with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 176         Paragraph 135AS(1)(d)

648.           This items amends paragraph 135AS(1)(d) to include the phrase ‘and with the intention of obtaining a commercial advantage or profit’.  This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

649.           The effect of this amendment is that it will be an offence where a person exhibits a broadcast decoding device in public by way of trade and with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 177         Subparagraph 135AS(1)(e)(i)

650.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 135AS(1)(e)(i).  This reflects corresponding changes that are being made to the general criminal law offences in s132.  It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

651.           The effect of this amendment is that it will be an offence for a person to import a broadcast decoding device into Australia by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing the device for sale or hire, if the person knows, or is reckless as to whether, the device will be used to enable access to encoded broadcasts without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 178         Subparagraph 135AS(1)(e)(ii)

652.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 135AS(1)(e)(ii).  This reflects corresponding changes that are being made to the general criminal law offences in s132.  It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

653.           The effect of this amendment is that it will be an offence where a person imports a broadcast decoding device into Australia with the intention of distributing the device for trading with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 179         Subparagraph 135AS(1)(e)(iii)

654.           This item inserts the phrase ‘and with the intention of obtaining a commercial advantage or profit’ in subparagraph 135AS(1)(e)(iii).  This reflects corresponding changes that are being made to the general criminal law offences in section 132.  It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain.  Instead of the expression ‘financial gain’, the term ‘profit’ is included with the qualification that ‘profit’ be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163) .  Such a definition is consistent with the Government’s policy that the copyright law should not unduly intrude into the private sphere.

655.           The effect of this amendment is that it will be an offence where a person imports a broadcast decoding device into Australia with the intention of exhibiting the device in public by way of trade with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.

Item 180         At the end of subsection 135AS(1)

656.           This item inserts a cross-referencing note to the definition of profit in s135AL. 

Item 181         After subsection 135AS(1)

657.           This item inserts sub-s135AS(1A) to provide a new offence in relation to the use of broadcast decoding devices for commercial advantage or profit.  Under the new subsection, a person will commit the offence if, amongst other things, they make use of, or authorise use of, an encoded broadcast to gain access to an encoded broadcast without the authorisation of the broadcaster.  To come within the offence, a person must act with the intention of obtaining a commercial advantage or profit and, be reckless as to whether, the broadcaster has not authorised the access to the broadcast.  This implements the obligation under article 17.7 of the Agreement that a criminal offence be created that covers conduct amounting to ‘receiving and making use’ of an encoded broadcast that has been decoded without the authorisation of the broadcaster.  Note that the fault elements of the Criminal Code Act 1995 apply.  This conduct does not come within the s135AS offence.

658.           A note at the foot of sub-s135AS(1A) inserts a cross-reference to the term ‘profit’ which is defined in s135AL.

659.           This item also inserts sub-s135AS(1B) to provide a new offence in relation to the distribution of an encoded broadcast that has been accessed without authorisation.  Under the elements of the new offence, the distribution of the encoded broadcast must prejudicially affect a person who has an interest in any copyright in the broadcast, an interest in copyright in the content of the broadcast, or who is a channel provider who supplies the broadcaster with the channel for the broadcast .  To come within the offence, a person must know the broadcaster had not authorised the access to the broadcast.  This new offence provision is intended to apply where a person has engaged in further distribution of an encoded broadcast after the person has gained unauthorised access to the encoded broadcast.  This goes beyond the criminal provision in s135AS of the Act. 

Item 182         Subsection 135AS(2)

660.           This item substitutes ‘This section’ for ‘Subsection (1)’ in sub-s135AS(2) to reflect the insertion of new offences (sub-ss135AS(1A) and (1B)) in s135AS.

661.           In accordance with current drafting practices, a note at the front of this item inserts the heading ‘Defence relating to law enforcement and national security’ to assist readers identify the subject matter of sub-s135AS(2).

Item 183         After subsection 135AS(3)

662.           This item inserts a new sub-s135AS(3A) which provides that, in a prosecution for an offence against s135AS, the burden of proving that any advantage, benefit or gain does not result from or is not associated with any private or domestic use of the copyright material on the work or other subject matter is on the prosecution.  This retains the onus of proof in respect of this matter on the prosecution and is consistent with Commonwealth criminal law policy. 

663.           In accordance with current drafting practice, a note at the foot of this item insert the heading ‘Burdens of proof’ to assist readers identify the subject matter of sub-s135AS(3).

Item 184         Subsection 135AS(4)

664.           This item inserts ‘,(1A) or (1B)’ after ‘subsection (1)’ in sub-s135AS(4).  The effect of this amendment is that a person who contravenes sub-ss135AS(1A) and (1B) is guilty of an offence punishable on summary conviction by a fine not more than 550 penalty units and/or imprisonment for not more than 5 years.  This is same penalty level for the offence in sub-s135AS(1).

665.           In accordance with current drafting practices, a note at the foot of this item inserts the heading ‘Penalty for contravening section’ to assist readers identify the subject matter of sub-s135AS(4).

Item 185         Application of amendments

666.           This item provides that the amendments made by this Part apply to broadcasts made after the commencement of the Bill.  Accordingly, the provisions do not operate retrospectively. 

 

 



Part 10 - Reproductions

Copyright Act 1968

 

General

667.           The items in this Part implement the requirement in Article 17.4.1 of the Australia - United States Free Trade Agreement that each party shall provide that the categories of persons listed in that Article ‘have the right to authorise or prohibit all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form)’ of their works (including cinematograph films), performances as fixed in a phonogram, and phonograms.  It also reflects the right each party has, under Article 17.4.10, to create limitations or exceptions to exclusive rights where the limitations or exceptions apply to ‘certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder’.

Item 186         Subsection 10(1) (definition of material form )

668.           This item repeals the current definition of ‘material form’ in sub-s10(1) and substitutes a new definition for that term.  Under the current Act, reproductions that are capable of further reproduction have copyright protection.  Under the new definition, to be in ‘material form’ the form of the work or adaptation of a work no longer needs to be capable of reproduction.  A work or an adaptation of a work is in ‘material form’ in any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, whether or not it can be reproduced.  When the definition is applied with s31 concerning copyright in original works, it means that copyright applies to all reproductions, in any manner or form, permanent or temporary. 

 

Item 187         After subsection 10(4)

 

669.           Item 187 inserts new sub-s10(5) and sub-s10(6).  New sub-s10(5) provides that for the purposes of the definition of copy in sub-s10(1), such a copy includes any form (whether visible or not) of storage of a cinematograph film, or a substantial part of a cinematograph film, (whether or not the copy of the film, or a substantial part of the film, can be reproduced).  When applied with paragraph 86(a) of the Act concerning the nature of copyright in cinematographic films, the effect of this amendment is that copyright applies to all copies of a cinematographic film in any manner or form permanent or temporary.

670.           New sub-s10(6) provides that for the purposes of paragraph 10(3)(c), a reference to a copy of a sound recording includes any form (whether visible or not) of storage of the sound recording, or a substantial part of the sound recording, (whether or not the copy of the recording, or a substantial part of the recording, can be reproduced).  When applied with paragraph 85(1)(a) of the Act concerning the nature of copyright in sound recordings, the effect of this amendment is that copyright applies to all copies of a sound recording in any manner or form permanent or temporary.

Item 188         After section 43A

New 43B                     Reproduction of works as part of a technical process of use

671.           This item inserts a new s43B to provide an exception to infringement for reproductions of a work where the reproduction is incidentally made as part of a technical process of using a copy of the work.  The extended definition of ‘material form’ effectively extends the application to all reproductions made in using copyright material.  It will include, for example, electronic copies of a transitory nature made in the random access memory (RAM) of digital devices such as computers, DVD and compact disc players.  In order that users of copyright material are not potentially liable for copyright infringement for the normal use of non-infringing copyright material an exception is required. 

672.           New sub-s43B(1) provides that the copyright in a work is not infringed by the making of a reproduction of the work if the reproduction is incidentally made as part of a technical process of using a copy of the work. 

673.           New sub-s43B(2) provides that the exception in sub-s43B(1) does not apply if the reproduction is made from an infringing copy of the work. 

674.           Section 47B continues to allow for a variety of computer program licences to operate, while the new exception ensures that users may continue to use non-infringing copyright material.

Item 189         After section 111A

New 111B                   Reproduction of subject-matter as part of a technical process of use

675.           This item inserts a new s111B to provide a corresponding exception to that in sub-s43B(1) in relation to infringement for reproductions of subject-matter other than works.  New sub-s11B(1) provides that the exception applies where the reproduction is incidentally made as part of a technical process of using a copy of the subject matter.  New sub-s111B(2) provides that the exception in sub-s111B(1) does not apply if the reproduction is made from an infringing copy of the subject-matter. 

Item 190         Application

676.           This item provides that the amendments made by this Part apply in respect of acts done after the day on which this item commences. 

 



PART 11 - Limitation on remedies available against carriage service providers

Copyright Act 1968

General

677.           The items in this Part implement obligations under Article 17.11.29 of the Australia - United States Free Trade Agreement. The provisions limit remedies available against carriage service providers for infringements of copyright that relate to the carrying out of activities specified in Article 17.11.29(b)(i)(A) - (D) by carriage service providers.  The provisions also detail the nature of the limitations in accordance with Article 17.11.29 and set out the conditions referred to in that Article that must be satisfied before the limitations apply.  The obligations in respect of some of the conditions, notably those concerning notifications and counter-notifications referred to in Articles 17.11.29(iv) - (x) will be prescribed in regulations that will come into effect at the same time as new Division 2AA.

Item 191         After Division 2 of Part V

678.           This item inserts Division 2AA.

Division 2AA - Limitation on remedies available against carriage service providers

Subdivision A - Preliminary

679.           New Subdivision A of Division 2AA provides information on the purpose of the Division, the relationship of the Division to other parts of the Act and definitions of relevant terms.

New 116AA               Purpose of this Division

680.           New sub-s116AA(1) sets out the purpose of the new Division.  The Division limits the remedies that are available against carriage service providers for infringements of copyright where the service provider has met certain conditions.  Notes to sub-s116AA(1) give references to the subdivisions in the Division and identify the components of the scheme that each subdivision addresses.  Subsection 116AA(1) also provides that the Division only applies to certain online activities undertaken by carriage service providers.  Those activities are set out in Subdivision B.

681.           New sub-s116AA(2) provides that the Division does not limit the operation of provisions in the Act outside the Division in relation to determining liability for infringement of copyright.  While actions taken by a carriage service provider in relation to the conditions set out in this Division may have some relevance to whether or not copyright infringement has occurred, the Division does not affect the way provisions in the Act in relation to the determination of liability should be interpreted or limit the application of the exceptions in the Act.  Further, the failure of a carriage service provider to qualify for any limitations on remedies in this Division does not make the service provider liable for copyright infringement.  A copyright owner must still establish that a carriage service provider has infringed copyright under the Act. 

New 116AB                Definitions

682.           New s116AB provides definitions for ‘caching’, ‘copyright material’, ‘financial benefit’ and ‘industry code’ for the purposes of the Division.

683.           The definition of ‘financial benefit’ is intended to exclude benefits merely gained as a result of ordinary pricing models used by carriage service providers in charging for their services. For example, some models apply additional charges when download or access limits are exceeded. It is intended that a court will be able to determine that a financial benefit does not ‘merely’ relate to the level of activity on a carriage service provider’s network where there are further relevant circumstances, for example, where the carriage service provider knew that an infringement of copyright was involved.

684.           The definition of ‘industry code’ is intended to allow codes to be developed in relation to specific conditions specified in Subdivision C.  It covers an industry code that meets any prescribed requirements and is registered under Part 6 of the Telecommunications Act 1997 or an industry code developed in accordance with the regulations.   The definition would allow the Government to prescribe requirements of a code, or a process under which a code must be developed.   The regulations may, for example, prescribe a process whereby the Government develops a code in consultation with industry representatives.  If an industry code is to be registered under Part 6 of the Telecommunications Act it would also need to comply with relevant code requirements under that Act. 

Subdivision B - Relevant activities

685.           New Subdivision B of Division 2AA sets out the four categories of online activities to which the limitations on remedies apply.

New 116AC               Category A activity

686.           New s116AC provides that a carriage service provider will be undertaking a Category A activity where the carriage service provider acts as a conduit for internet activities through the provision of facilities for transmitting, routing or providing connections for copyright material.  The activity also covers the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections.  Examples of activities that fall within this category include where a carriage service provider provides internet access to a user, or where a carriage service provider acts as a conduit for the communication of material between online locations.

New 116AD               Category B activity

687.           New s116AD provides that a carriage service provider will be undertaking a Category B activity where the carriage service provider caches copyright material through an automatic process.  Caching is defined in s116AB of the Division.  Category B activities cover situations where a carriage service provider reproduces copyright material onto its system or network in response to an action by a user. The carriage service provider  reproduces the material so that requests for that material can be transmitted from the cached copy, rather than from the original source.  The ability to cache material is an important practice in the online environment as it contributes to the efficient operation of systems and networks by reducing the processing time for requests for the same information and reducing bandwidth requirements. 

688.           Category B activities are limited to situations where the caching occurs in response to an action undertaken by a user (eg a request to view a website through the carriage service provider’s system). A Category B activity includes caching through an automatic process but not the manual selection of material for caching. This includes, for example, circumstances in which the material to be cached is determined by software on the carriage service provider’s system based on certain criteria. It does not include situations where the carriage service provider manually selects the specific material to be reproduced.  An ‘automatic process’ may involve some manual intervention, for example, as part of creating or modifying a caching program or setting criteria for caching programs that operate automatically.

New 116AE                Category C activity

689.           New s116AE provides that a carriage service provider will be undertaking a Category C activity where the carriage service provider stores copyright material on their systems or networks.  It applies to storage of copyright material at the direction of a user.  An example of this activity is where a carriage service provider hosts a user’s website on their system or network.

New 116AF                Category D activity

690.           New s116AF provides that a carriage service provider will be undertaking a Category D activity where the carriage service provider refers users to an online location using online information location tools or technology.  Examples of online location tools or technologies include hyperlinks, online directories and search engines.

Subdivision C - Limitations on remedies

691.           New Subdivision C of Division 2AA sets out the limitations on remedies available against a carriage service provider where they have been found liable for copyright infringement in relation to the activities described in Subdivision B.

New 116AG               Limitations on remedies

692.           New sub-s116AG(1) provides that the relevant conditions in Subdivision D must be met before the limitations in this section apply.

693.           New sub-s116AG(2) places a complete bar on monetary relief  where a carriage service provider qualifies for any of the categories of activities in Subdivision B.

694.           New sub-s116AG(3) provides the remedies that are available against a carriage service provider that qualifies for a Category A activity. 

695.           New sub-s116AG(4) provides the remedies that are available against a carriage service provider that qualifies for a Category B, C or D activity.

696.           New sub-s116AG(5) provides the matters a court must have regard to in making an order under sub-ss116AG(3) and 116AG(4).  The order of the list does not indicate any priority of consideration.

Subdivision D - Conditions

697.           Subdivision D provides the conditions that a carriage service provider must comply with in order to qualify for the limitations on remedies in relation to each of the categories of activities.

New 116AH               Conditions

698.           New s116AH provides a table which sets out the conditions.  A person seeking to limit remedies for copyright infringement under this Division must fall within the definition of ‘carriage service provider’ in the Act; must be liable for copyright infringement in relation to an activity which falls within one of the categories of online activities set out in Subdivision B; and must have satisfied the conditions in this subdivision that relate to the particular activity.  A determination of whether or not a carriage service provider qualifies for the limitation on remedies in relation to one category of activities does not affect the determination of whether or not the carriage service provider qualifies, or does not qualify, in relation to any of the other categories of activities.

General conditions

699.           To be eligible for the limitation on remedies in relation to any of the categories of activities in Subdivision B, a carriage service provider must meet the following two general conditions. 

1)                   The carriage service provider must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of users who are repeat copyright infringers.  This policy is to be determined by the carriage service provider.

2)                   The carriage service provider must accommodate and not interfere with standard technical measures used to protect and identify copyright material in accordance with a relevant industry code.  If an industry code (as defined in s116AB) is not in force, this condition does not apply.  Any industry code in relation to this condition must comply with any conditions prescribed by the regulations. These may, for example, require that the code be developed through an open, voluntary process by a broad consensus of copyright owners and carriage service providers.

Category A Conditions

231.           In order to qualify for the limitations on remedies associated with Category A activities a carriage service provider must meet the following two conditions in addition to the general conditions. 

1)                   Any transmission, routing or provision of connections for copyright material must be initiated by or at the direction of another person.  This may, for example, be a subscriber of the carriage service provider’s system or network, or another person using the system or network.  To be deemed not to have initiated the transmission, a carriage service provider must not have manually selected the copyright material being transmitted, nor the recipients of the material.

2)                   The copyright material must be transmitted without any substantive modifications to its content.  This condition does not apply to modifications made as part of a technical process, for example where ‘format shifting’ is necessary to provide access to copyright material via different technologies.

Category B Conditions

231.           In order to qualify for the limitations on remedies associated with Category B activities a carriage service provider must meet the following four conditions in addition to the general conditions. 

1)                   If the copyright material that is cached is subject to conditions on user access at the originating site the carriage service provider must ensure that access to significant parts of the cached material is permitted only to users who have met those conditions. Examples of relevant conditions that may apply at the originating site include requiring registration or subscription in order to access the copyright material.  The condition only applies to significant parts of the copyright material so as to not apply where, for example, an extract of the material is displayed by a search engine without the user having met any conditions on access.

2)                   If a relevant industry code is in force, the carriage service provider must comply with relevant provisions of the code relating to updating the cached copyright material. It must also comply with any relevant industry code relating to not interfering with technology used at the originating site to obtain information about the use of the material. An example of technology to which such a code may apply includes technology that counts the number of times that certain material is accessed. The relevant industry code must satisfy any requirements prescribed by the regulations. If an industry code as defined in s116AB is not in force this condition does not apply.

3)                   Any copyright material must be removed or access to the material blocked if the carriage service provider receives a notice in the prescribed form that the material has been removed or blocked at the originating site. This action must occur expeditiously from the receipt of the notice.

4)                   The copyright material must be transmitted without any substantive modifications to its content.  This condition does not apply to modifications made as part of a technical process, for example where ‘format shifting’ is necessary to provide access to copyright material via different technologies.

Category C Conditions

231.           In order to qualify for the limitations on remedies associated with Category C activities a carriage service provider must meet the following three conditions in addition to the general conditions. 

1)                   If the carriage service provider has the right and ability to control the infringing activity, the service provider must not receive a financial benefit directly attributable to the infringing activity.  Financial benefit is defined in s116AB to exclude a benefit that merely results from the level of activity on the carriage service provider’s system or network.  The legislation also provides that a financial benefit will only be regarded as being ‘directly attributable’ to the infringing activity if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.

2)                   The carriage service provider must expeditiously remove or disable access to material residing on its system or network upon receipt of a notice in the prescribed form that the copyright material has been found to be infringing by a court. 

3)                   The carriage service provider must comply with a prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network.  This may, for example, include a notice and takedown procedure and a counter-notice scheme.

231.           Conditions (2) and (3) only apply to copyright material stored on a carriage service provider’s own system or network.  This does not include copyright material on systems or networks that are not run by or on behalf of the carriage service provider, or material stored on the computer of a user of the carriage service provider’s system or network.

232.           The procedure, including the form of relevant notices, referred to in relation to these conditions will be prescribed in the regulations.  It is also proposed that these regulations will come into effect at the same time as new Division 2AA.

Category D Conditions

233.           In order to qualify for the limitations on remedies associated with Category D activities a carriage service provider must meet the following three conditions in addition to the general conditions. 

1)                   If the carriage service provider has the right and ability to control the infringing activity, the service provider must not receive a financial benefit directly attributable to the infringing activity.  Financial benefit is defined in s116AB to exclude a benefit that merely results from the level of activity on the carriage service provider’s system or network.  The conditions also provide that a financial benefit will only be regarded as being ‘directly attributable’ to the infringing activity if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.

2)                   The carriage service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court. 

3)                   The carriage service provider must comply with a prescribed procedure in relation to removing or disabling a reference residing on its system or network.

231.           The procedure, including the form of relevant notices, referred to in relation to these conditions will be prescribed in the regulations.  It is also proposed that these regulations will come into effect at the same time as new Division 2AA.

232.           New sub-s116AH(2) provides that nothing in the Division requires a carriage service provider to monitor its service or to seek facts to indicate infringing activity in order to be eligible for any of the limitations on remedies associated with the four categories of online activity.  An exception occurs where the carriage service provider is required to monitor its system or seek facts to indicate infringing activity in order to comply with an industry code in force, as set out by the general conditions in sub-s116AH(1), in relation to accommodating and not interfering with standard technical measures used to protect and identify copyright material.

New 116AI                 Evidence of compliance with conditions

233.           New s116AI provides a presumption in relation to a carriage service provider’s compliance with a condition listed in s116AH. If a carriage service provider points to evidence prescribed by the regulations in relation to a certain condition, which suggests that the provider has complied with that condition, the court must presume, in the absence of evidence to the contrary, that the provider has complied with the condition.  Regulations may be made prescribing the evidentiary requirements for this presumption to apply.  Where the regulations do not prescribe evidence in relation to a certain condition the presumption does not apply, and the carriage service provider must satisfy the court that it has complied with that condition.

Subdivision E - Regulations

234.           New Subdivision E provides for the making of regulations in relation to Division 2AA.

New 116AJ                Regulations

235.           New s116AJ provides for the making of regulations on various matters relating to the conditions that must be satisfied before a carriage service provider can take advantage of the limitation on remedies for certain online activities. 

236.           A carriage service provider’s actions in compliance with the conditions may result in loss or harm to another person, for example a person who uses the system or network provided by the carriage service provider.  Regulations made pursuant to the power in new sub-s116AJ(1) may provide that a carriage service provider is not liable for damages or any other civil remedy from some or all parties as a result of action taken in good faith to comply with a condition.  The regulations may also prescribe circumstances in which a carriage service provider may be liable for legal actions where they have not fully complied with the prescribed procedure in relation to a condition.

237.           New sub-s116AJ(2) permits the making of regulations that provide civil remedies for conduct by relevant parties in relation to the conditions.  Regulations made pursuant to this power, for example, could provide a civil remedy for acts undertaken by the relevant parties, purportedly in accordance with a prescribed procedure, where those acts were not taken in good faith and a person suffers loss as a result.

238.           New sub-s116AJ(3) permits the making of regulations that provide offences for conduct by persons issuing notices under the regulations and the prescribing of penalties for those offences that do not exceed 50 penalty units.  Regulations made pursuant to this power, for example, could provide that certain acts undertaken by the relevant parties, purportedly in accordance with a prescribed procedure, constitute offences. Such acts might include, for example, wilful misrepresentations. 

Telecommunications Act 1997

Item 192         At the end of section 115

239.           This item amends s115 of the Telecommunications Act 1997 by adding new sub-s115(4).  Subsection 115(1) of that Act provides that industry codes and standards registered under Part 6 of the Telecommunications Act will have no effect to the extent they deal with the content of content services, or to the extent that they require customer equipment, customer cabling, a telecommunications network or a facility to have particular design features or performance requirements except as specified in sub-s115(2). New sub-s115(4) provides that this rule does not apply to an industry code made for the purposes of this Division of Part V of the Copyright Act.