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Copyright Amendment Bill 1997

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1997

 

 

 

 

 

 

the parliament of the commonwealth

of australia

 

 

 

 

 

 

house of representatives

 

 

 

 

 

 

copyright amendment bill 1997

 

 

 

 

 

 

 

explanatory memorandum

 

 

 

 

 

 

( Circulated by authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

88633



copyright amendment bill 1997

outline

This Bill gives effect to reforms to the Copyright Act 1968 which were announced as part of the Government’s election policy statements.

The Bill:

•        introduces comprehensive moral rights provisions for authors of copyright works and directors and producers of films;

•        amends the law in relation to ownership of copyright in the works of employed journalists to ensure that newspaper and magazine publishers have all electronic and residual rights in the journalists’ works and a right to restrain large scale photocopying to protect circulation;

•        amends the law to prevent the owner of copyright in packaging and labelling of goods not protected by copyright from using that copyright to stop anyone from importing the goods;

•        will give the courts discretion in awarding the remedy of conversion damages for copyright infringement;

•        introduces a sampling scheme for copying done by governments to determine the amount of equitable remuneration to be payable to a relevant collecting society, instead of the present individual notification and payment to copyright owners; and

•        makes minor machinery, streamlining and tidying-up amendments to the provisions concerning: the Copyright Tribunal; border interception of infringing imports; and the statutory licences for copying by educational institutions and institutions assisting people with a disability.

The Bill also includes consequential amendments, including adding references to the Broadcasting Services Act 1992 .



financial impact statement

The amendments will have no direct financial impact.  However, the amendments introducing a sampling scheme concerning copying for the services of governments may result in slightly higher annual payments by the Commonwealth than at present to owners of copyright in works and other subject matter. 

Any indirect impact on expenditure which may occur will be minimal and will depend on applications being made to the Copyright Tribunal to exercise powers which, under this Bill,  will be slightly extended.

regulation impact statements

 

 

The Office of Regulation Review has agreed that Regulation Impact Statements should be included in relation to Schedules 2 and 3 of the Bill.

 

 

SCHEDULE 2 - amendment of the copyright act 1968   relating to EMPLOYED Journalists’ copyrigh T

 

A.      Problem identification and specification of regulatory      objectives

 

The advent of new technology has increased the potential for uses of journalists’ work in the electronic publication and delivery of newspapers, magazines and similar periodicals (newspapers).  However, as publishers do not currently own all copyright in relation to these uses under s.35(4) of the Act, there is a potential impediment to the full exploitation by publishers of these new means of publication and delivery of newspapers.  It is therefore proposed to amend s.35(4) to facilitate the publication and delivery of newspapers as well as access to papers by consumers.

 

B.      Identification of Alternatives

 

Option 1:   Amend s.35(4) to confer specific rights on journalists and the residual rights on publishers : The proposed amendment will, subject to contrary agreement, confer specific rights in relation to independent book publishing and photocopying on journalists while leaving all the residual rights, including rights in relation to electronic and future uses, on the publishers.  Publishers would also be entitled to prevent reproduction of more than 15% of material on the pages of a newspaper containing non-advertising material, so as to prevent a possible loss from large scale copying.

 

Option 2:   No specific action/general common law : if no amendment is made to the Copyright Act then publishers will not be guaranteed certainty of ownership of all the rights in an employed journalists’ work which are necessary to effectively exploit new technologies in the delivery and publication of newspapers.  While the existing provision is subject to contrary agreement, there is no legal requirement on journalists to provide publishers with the necessary rights.

 

Option 3:   Repeal s.35(4) : this was recommended by the Copyright Law Review Committee in its 1994 report on journalists’ copyright and would put journalists in the same position as other employees, ie, any work produced pursuant to a contract of employment would vest with the employer.  Journalists would no longer be entitled to exploit their historically recognised rights in relation to independent book publication and photocopying.  Publishers have indicated that they are prepared to leave these rights with journalists, provided the publisher retains a right to restrain wholesale photocopying which could undermine circulation of the relevant publication.

 

Option 4:   Amend s.35(4) to specifically confer additional rights in relation to electronic publication on the publisher : this was the course decided upon by the previous Government (but never enacted).   It has the disadvantage of not conferring upon publishers rights in relation to future uses in respect of publication and delivery not specifically identified by the section.

 

C.      Impact Analysis

 

Impact group identification

 

The amendment will affect publishers, their employed journalists, providers of newsclip services and consumers.

 

Assessment of costs and benefits

 

Option 1:   (preferred option)

 

(i) Government

The cost to government of amending s.35(4) is limited to the cost of enacting the legislation.

 

(ii) Business/Consumers

The amendment will ensure that publishers are effectively able to exploit new technologies in the delivery and publication of newspapers.  It will also enable consumers to take advantage of the new modes of delivery and publication.  In addition, the amendment will guarantee an employed journalist rights in relation to independent book publication and photocopying while also ensuring that the publisher is able to restrain such large scale photocopying as would undermine the publication’s circulation. 

 

The amendment will enable a newspaper/magazine publisher to restrain a newsclipping service from including more than 15% of the newspaper in the newsclip.  The provision may, however, involve some cost to newsclip services if they wish to ensure that they do not include more than 15% of any newspaper in their newsclips to clients.

 

Option 2

 

(i) Government

There is no cost to government in not amending s.35(4).

 

(ii) Business/Consumers

The cost to business of not amending s.35(4) is that publishers will not be guaranteed certainty of ownership of all the rights in an employed journalists’ work which are necessary to effectively exploit new technologies in the delivery and publication of periodicals.  While the existing provision is subject to contrary agreement, there is no legal requirement on journalists to provide publishers with the necessary rights.  The cost to consumers is a corresponding limitation on their access to newspapers and magazines.

 

Option 3

 

(i) Government

The cost to government of repealing s.35(4) is limited to the cost of enacting the legislation.

 

(ii) Business/Consumers

The cost to business of this option is that it may precipitate industrial action between journalists and publishers.  Publishers have indicated that they are prepared to leave photocopying and independent book publishing rights with journalists, provided the publisher retains a right to restrain wholesale photocopying which could undermine circulation of the relevant publication.  This option would also allow publishers to prevent any copying by newsclip services and give publishers the potential power to put these services out of business (although admittedly the existing copying licences given to those services by the journalists could be withdrawn by them).

 



Option 4

 

(i) Government

The cost to government is limited to the cost of amending s.35(4) .

 

(ii) Business/Consumers

The cost to business of amending s.35(4) to specifically confer additional rights in relation to electronic publication on the publisher is that publishers will not confidently be able to exploit future uses in relation to publication and delivery which are not specifically identified by the section.

 

D.      other requirements

 

C onsultation

 

Publishers, employed journalists and newsclipping services have been extensively consulted in relation to proposals for the amendment of s.35(4).  The publishers have indicated that they support the proposal.  Journalists have concluded agreements with publishers on the basis that residual rights remain with publishers.  A major newsclipping service, after initially indicating its in-principle agreement to the proposal, has indicated some concern at the 15% limit.

 

Administrative simplicity, economy and flexibility

 

The Government would not be involved in administering the new division of rights between publishers and employed journalists.  Any disputes in relation to the operation of the amendment would be subject to the normal judicial processes.  The amendment will promote greater simplicity as it will ensure that, subject to contrary agreement, all future uses in relation to the publication and delivery, by whatever means, of newspapers will reside with the publisher.

 

E.      review

 

The Copyright Act will be reviewed by the Copyright Law Review Committee in the course of its current reference on the simplification of the Act on which it is to report finally by 30 June 1998.



SCHEDULE 3:  amendment of the copyright act 1968 relating to labelling and packaging of imported goods

 

A.      Problem Identification and Specification of Regulatory      Objectives

 

Importers of goods that are not protected by copyright are presently able to use the importation provisions of the Copyright Act to control the importation of those goods through the copyright in the artistic and/or literary works on the packaging or labelling or through the copyright in accompanying materials such as instructional video and audio tapes.

 

There is no clear market information about the extent of this practice.  It is believed to be quite widespread in some industries such as the liquor and toy industries.  Other industries such as footwear and sunglasses also have reported instances of this practice.

 

Removal of the ability to use copyright in this way would eliminate one of the means by which exclusive market access is able to be provided to certain distributors of such goods and would implement a recommendation of the Copyright Law Review Committee (CLRC).  In 1988 the CLRC reviewed the importation provisions of the Copyright Act.  It concluded that, whatever the merits of importation rights over copyright goods, the ability to use the copyright protected material attached to or used in relation to goods that would not attract copyright protection in the market in their own right, to gain control over the right to import and market such goods in Australia, did not fit within the framework of a proper exercise of copyright.

 

Note:  This CLRC recommendation was concerned only with copyright packaging and labelling and not with other questions related to the importation provisions.

 

B.      Identification of Alternatives

 

Option 1: Reject the recommendation of the CLRC : A long time has now passed since the CLRC’s recommendation with virtually no complaint about it not being implemented.  It can be argued that no problem exists in a real, or market, sense.  The Government could adopt a view of competition that does not require competition between traders in respect of the same brands. Whilst the copyright importation provisions are used to assure distributors of exclusive markets for particular brands of goods it could be said that competition still exists in, say, the market for goods of that type, eg, whisky.  The use and/or potential use of the copyright importation provisions merely operate, in effect, in the same way as an unregistered trade mark.  This argument fails, however, to meet the fundamental objection of the CLRC - namely that the use of copyright to assure exclusive distributorships for goods not protected by copyright is not a valid use of copyright.  If there is a desire to assure exclusive distributorship effectively for brands then trade mark law is available for that purpose and the limitations and controls applicable to the application of that law should control whether or not parallel importation of the goods is possible.

 

Option 2: Create an exception to the importation provisions based on whether the copyright work is ‘incidental’ to the goods being imported:   The CLRC was specifically concerned with  the case of the use of a label on a liquor bottle to control the importation of the liquor in the bottle.  It referred to such copyright material on packaging and labelling as ‘incidental’ to the goods (the liquor).  This approach appeals because of its conceptual simplicity.  Its weakness is that ‘incidentality’ is a difficult concept to apply to given fact situations.  Whilst the practical application of such a concept would, in time, be sorted out by the courts it would be preferable if a more certain implementation of the recommendation could be provided so as to encourage more traders to import goods not protected by copyright but which have become currently the subject of control over their importation and subsequent sale, through the use of the provisions.  It would be likely to defeat the purpose of such a change to the law if the law’s application is so uncertain that potential importers and current exclusive distributors exercising control over importation by this means are unable to say with any certainty whether or not the importation provisions will apply.

 

Option 3: Create an exception to the importation provisions based on physical criteria:  The preferred alternative is to take a practical approach; to identify those works not subject to the copyright owner’s control over importation (and subsequent commercial use in Australia) by reference to physical criteria.  That is, are the works on packaging and labelling or in accompanying explanatory material or are they being used as a label?  If so, the importation provisions would not be applicable.  This would give very considerable certainty to both copyright owners and to potential importers.  In some cases it may be that some copyright materials not regarded as packaging and labelling or not detachable from the goods but which are not labels could continue to be used to control the distribution in Australia of those goods but it is reasonable to expect those cases to be a small minority.



C.      impact analysis

The liquor and toy industries have argued there will be an adverse impact on standards and unfair free rider activities regarding advertising.  They suggest that, for example, advertising for Bailey’s Irish Cream by the exclusive distributor will be utilised by competitors who import directly.  They also suggest that competitors could import substandard models or products from currently non-utilised sources leading to greater potential for injury or death and product servicing costs.  The say that their industries are price and service competitive so that no changes are necessary.

 

It is impossible to accept these industry submissions.  Such products, and the circumstances of their sale, are independently regulated through a variety of other laws, for example, through food standards and product safety standards and product liability laws which provide for protection of consumers and public safety.

 

Removal of this power over importation will reduce over-protection in an area where competing considerations are not strong.  The removal of the restrictions will introduce the possibility of competition between importers in areas where product labelling has been a mechanism of maintaining exclusive control.  Such measures will not eliminate exclusive distributorships related to ownership of the trade mark or where the copyright artistic work is permanently affixed to the goods and is not a label.  The measure should reduce the number of notifications advised to the Australian Customs Service for possible border interception.  Although not, in fact, a change to a regulatory measure - the amendment can be characterised as broadly of a deregulatory type.

 

D.      other requirements

 

Consultation

 

The proposal was recommended by the CLRC in its 1988 Report on The Importation Provisions of the Copyright Act 1968 .  This followed extensive opportunity for affected interests to state their case - an opportunity pursued vigorously by the liquor industry.  Measures similar to those proposed were included in amending legislation in 1992 which lapsed.  Public comment on that Bill was invited.  A small number of interests, notably the toy industry, availed themselves of the opportunity to further address the issue.  An exposure draft Copyright Amendment Bill including one form of provisions to give effect to the CLRC’s recommendation was released in February 1996 and comments were received on that Bill. 

Administrative Simplicity

 

See discussion under ‘Identification of Alternatives’.

 

E.      REVIEW

 

The importation provisions of the Copyright Act continue to be under close scrutiny.  Moreover, the Copyright Act will be reviewed by the CLRC in the course of its current reference on the simplification of the Act on which it is due to report finally by 30 June 1998. 



________________________________________________________________

Contents

Paragraphs

                   1.       Short title                                                                                           1

                   2.       Commencement                                                                                 2

                   3.       Schedules                                                                                          3

Schedule 1    -    Moral rights of authors of works and                 4-101

directors and producers of films

Schedule 2    -   Employed journalists’ copyright                          102-118

Schedule 3    -   Labelling and packaging etc. of                             119-136

imported goods etc.

Schedule 4    -   Conversion and detention                             137-148

Schedule 5    -   Copying for the services of the                    149-179

Commonwealth, State and Territory

Governments

Schedule 6    -   People with an intellectual disability                 180-239

and people with a print disability

Schedule 7    -   Copying of works etc. by institutions                  240-264

Schedule 8    -   Copyright Tribunal                                                  265-281

Schedule 9    -   Imported copies of copyright material               282-304

Schedule 10  -   Educational institutions                                         305-316

Schedule 11  -   Minor amendments                                                  317-371

 

 

 

 

________________________________________________________



notes on clauses

 

Clause 1 - Short Title

1.           When enacted, this Bill will be cited as the Copyright Amendment Act 1997 .

Clause 2 - Commencement

2.           The clause provides that the Act will come into operation on the day of Royal Assent.

Clause 3 - Schedules

3.           By virtue of this clause the provisions in the Copyright Act 1968 (hereinafter called the Act) are amended or repealed as set out in the particular schedule.



schedule 1 - moral rights of authors of works and directors and producers of films

Background

4.           Schedule 1 inserts a new Part IX into the Act to introduce comprehensive moral rights for creators of copyright works and films.  The legislation results from public consultation and consideration of comments on the 1994 Discussion Paper, Proposed Moral Rights Legislation for Copyright Creators , that was released by the former Government and outlined a proposed legislative framework for moral rights.

5.                The amendments in Schedule 1 give full and proper effect to Australia’s obligations under article 6 bis of the Berne Convention for the Protection of Literary and Artistic Works

6.           The rights introduced by Schedule 1 comprise a creator’s right to be identified as the creator of a work (the right of attribution of authorship), the right of a creator to take action against false attribution (the right not to have authorship of a work falsely attributed), and a creator’s right to object to derogatory treatment of his or her work which prejudicially affects his or her honour and reputation (the right of integrity of authorship of a work).

7.           The rights will apply to authors of all works covered by the Berne Convention , that is, authors of literary, artistic, dramatic and musical works and authors of cinematograph films.  Authors of cinematograph films are the principal director and the principal producer (where that person is a natural person) of the film.

8.           Part IX of the Act presently contains provisions dealing with false attribution of the authorship of works.  The duties owed to the author of a work include: a duty not to falsely attribute authorship of a work (s.190); a duty not to falsely attribute authorship of an altered work (s.191); and a duty not to falsely attribute the authorship of a reproduction of an artistic work (s.192).  Part IX does not, however, expressly require recognition or attribution of authorship.  Also, Part IX only refers to works; it does not cover cinematograph films.

9.           There is also some indirect protection of the right of attribution in ss.41 and 42 of the Act in relation to fair dealing with works.  Fair dealing for the purposes of criticism and review and of reporting news is not an infringement of copyright if, among other things, ‘a sufficient acknowledgment of the work is made’.  Section 44(1), which concerns the use of extracts of works included in collections for use by places of education, and s.45, regarding reading or recitation in public or for a broadcast, also give similar recognition to the right of attribution.

10.         The right to integrity is not specifically recognised by the Act, although there are some isolated provisions that are relevant.  These provisions cover the right of an author of commissioned photographs, paintings or drawings of portraits and engravings in relation to uses of the work for purposes other than that for which the work was commissioned (s.35(5)); and adaptations of a musical work which debase the work (s.55(2)).  

Item 1 - Part IX

11.         Item 1 repeals the present Part IX of the Act and substitutes a new Part IX - ‘Moral rights of authors of literary, dramatic, musical or artistic works and directors and producers of cinematograph films’.  The new Part IX comprises 8 new Divisions.

Division 1 - Preliminary

New s.189 - Definitions

12.         New s. 189 sets out a number of key definitions that apply in relation to the new Part IX.  Some of the terms used in Part IX have a different meaning elsewhere in the Act.

13.         In new s.189 each category of work is defined to mean a work in which copyright subsists.  This is to make it clear that moral rights will only apply to works in which copyright subsists and which are not in the public domain. 

14.         In new s.189 an ‘author’ in relation to a cinematograph film is defined to mean its ‘maker’ which is defined as the director and the producer of the film. This gives effect to the Government’s decision that both the director and the producer of a film will be accorded moral rights as the key creative contributors to a film.  A ‘cinematograph film’ is defined to mean the final version for release so that moral rights will not apply in relation to unfinished versions of the film.  The terms ‘director’ and ‘producer’ are also defined in new s.189 by reference to new s.190.

15.         The term ‘moral right’ is defined to mean a right of attribution of authorship; a right not to have authorship falsely attributed; or a right of integrity of authorship.  These three rights are in turn defined by reference to new Divisions 2, 3 and 4 respectively. The term ‘work’ unless otherwise specified refers to cinematograph films as well as works, for the purposes of new Part IX.

16.         New s.189 also defines ‘transmit’, in relation to works and films, to mean broadcast or to cause to be transmitted to subscribers to a diffusion service.



New s.190 - Director and producer of cinematograph film

17.         New s.190 confirms that moral rights apply only to the principal director (new s.190(1)) and the principal producer (new s.190(2)) of a film.  A producer of a cinematograph film must be an individual (new s.190(2)) as moral rights only apply in relation to natural persons.  Where a producer is a body corporate, the only moral rights in respect of the film are those of the director (new s.190(3)).

18.         The note to new s.190 makes reference to ss.195AZJ and AZK where there are two or more principal producers or principal directors of a film.

New s.191 - Rights to be additional to other rights

19.         New s.191 confirms that moral rights are in addition to, and separate from, any other rights, economic or otherwise, that an author or other person has under the Act.

Division 2 - Right of attribution of authorship

20.         Division 2 sets out the circumstances in which the right of attribution of authorship arises and the nature of the right. 

New s.192 - Author’s right of attribution of authorship

21.         New s.192 provides that an author has a right of attribution of authorship in respect of his or her work.  The author’s right is to be identified, in accordance with new Division 2, if any attributable act (defined in new s.193) is done in respect of his or her work or film. 

New s.193 - Acts giving rise to right of attribution of authorship

22.         New s.193 provides for the attributable acts giving rise to the right of attribution of authorship in relation to literary, dramatic or musical works (new s.193(1)); artistic works (new s.193(2)); and cinematograph films (new s.193(3)).  The attributable acts basically arise upon the exercise of one of the economic rights of copyright provided for in s.31 and s.86 of the Act.  For example, in relation to a cinematograph film the director and the producer should be identified whenever the film is copied, exhibited in public or transmitted.

23.         New s.193(2) provides for an additional attributable act in relation to an artistic work for which there is no equivalent economic right under the Act, namely, where a work is exhibited to the public.



New s.194 - Nature of identification of author

24.         New s.194 provides for the nature and manner of identification of an author.  An author may be identified by any reasonable form of identification (new s.194(1)).  New s.194(2) provides for where an author 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 in that way. 

New s.195 - Identification of author to be clear and reasonably prominent

25.         New s.195 provides that the identification of the author must be clear and reasonably prominent. 

New s.195AA - What is a reasonably prominent identificatio n

26.         New s.195AA provides for guidance on what is considered reasonably prominent identification.  When a work is reproduced in a material form, an adaptation of a work is made or a copy of a film is made, an identification of the author is taken to be reasonably prominent if is included on each reproduction of the work or of the adaptation or each copy of the film, so that the person acquiring the reproduction or copy has notice of the author’s identity.

Division 3 - Right not to have authorship of a work falsely attributed

27.         Division 3 contains the amendments in relation to an author’s right not to have authorship of a work falsely attributed.  The amendments essentially replace, with modification, the provisions in relation to false attribution of works that are found in the present Part IX of the Act.

New s.195AB - Author’s right not to have authorship falsely attributed

28.         New s.195AB(1) provides that the author of a work has a right not to have authorship of the work falsely attributed. 

29.         New s.195AB(2) provides for the nature of the right.  That is, an author has a right not to have a person, ie, the attributor, do any of the acts of false attribution set out in the following provisions of the Division. 



New s.195AC - Acts of false attribution of authorship of a literary, dramatic or musical work

30.         New s.195AC(a) provides that it is an act of false attribution in relation to a literary, dramatic or musical work, to insert or affix a person’s name in or on a work, or in or on a reproduction of the work, in a way which implies falsely that the person is the author or an author of the work or that the work is an adaptation of a work of the person. 

31.         New s.195AC(b) and (c) provide that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute, or publish - see definition of ‘deal’ in new s.189) with the work or a reproduction of the work with a person’s name inserted or affixed in it, if the attributor (ie, the person doing the dealing - see new s.195AB(2)) knows that the person is not an author of the work or that work is not an adaptation of a work of the person. 

32.         New s.195AC(d) provides that it is also an act of false attribution to perform in public or transmit the work as being a work, or adaptation of a work, of the person if the attributor (ie, the person transmitting the work - see new s.195AB(2)) knows that the person is not an author of the work or that the work is not an adaptation of the work of the person.

New s.195AD - Acts of false attribution of authorship of artistic work

33.         New s.195AD(2)(a) provides that it is an act of false attribution in relation to the author of an artistic work to insert or affix a person’s name in or on the work, or to use a person’s name in connection with the work, or on a reproduction of the work, in a way which implies falsely that the person is an author of the work.  This would cover the situation where a person’s name is placed near to, in addition to in or on the work, in such a way as to imply falsely that the person is the author of the work.

34.         New s.195AD(b) and (c) provide that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute, or publish - see new s.189) with the work or a reproduction of the work with the person’s name, if the attributor (ie, the dealer - see new s.195AB(2)) knows that the person is not an author of the work. 

35.         New s.195AD(d) provides that it is also an act of false attribution to transmit the work as being a work of a person if the attributor (ie, the person transmitting the work - see new s.195AB(2)) knows that the person is not an author of the work.



New s.195AE - Acts of false attribution of authorship of cinematograph film

36.         New s.195AE (2)(a) and (3)(a) provide for acts of false attribution in relation to the director and the producer, respectively, of a cinematograph film.  The new provisions provide that it is an act of false attribution in relation to the director and the producer to insert or affix a person’s name in or on the film, or in or on a copy of the film, in a way which implies falsely that the person is the director or the producer of the film, as the case may be. 

37.         New s.195AE(2)(b) and (3)(b) provide that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute, or publish - see new s.189) with the film or a copy of the film with the person’s name inserted or affixed on it, if the attributor (ie, the dealer - see new s.195AB(2)) knows that the person is not the director or the producer of the film, as the case may be.

38.         New s.195AE(2)(c) and (3)(c) provide that it is also an act of false attribution to transmit the film as being a film of which a person is the director or the producer if the attributor (ie, the person transmitting the film - see new s.195AB(2)) knows that the person is not the producer or the director of the film, as the case may be.

New s.195AF - Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work

39.         New s.195AF(1) provides that where a work has been altered by a person other than the author, it is an act of false attribution to commercially deal with the altered work, or a reproduction, as being the unaltered work of the author if the attributor (ie, the dealer - see new s.195AB(2)) has knowledge that it was not the unaltered work of the author.  This provision is based on the present s.191 of the Act.

40.         New s.195AF(2) provides that s.195AF(1) does not apply if the alteration was only minor or the alteration was required to comply with the law (eg, censorship) or was necessary to avoid a breach of the law (eg, defamation).

New s.195AG - Act of false attribution of authorship of altered cinematograph film

41.         New s.195AG(1) provides that where a film has been altered by a person other than the director or the producer, it is an act of false attribution in relation to the director and the producer, to commercially deal with the altered copy of the film, as being the unaltered film, if the attributor (ie, the dealer - see new s.195AB(2)) has knowledge that it was not the unaltered film.  This provision is based on the present s.191 of the Act, although that provision does not apply to a cinematograph film.

42.         New s.195AG(2) provides that s.195AG(1) does not apply if the alteration was only minor or the alteration was required to comply with the law (eg, censorship) or was necessary to avoid a breach of the law (eg, defamation).

Division 4 - Right of integrity of authorship of a work

43.         Division 4 gives effect to the second moral right referred to in article 6 bis of the Berne Convention, that is, the right of an author to object to any distortion, mutilation or other modification of, or derogatory action in relation to, a work that would be prejudicial to his or her honour or reputation.

New s.195AH - Author’s right of integrity of authorship

44.         New s.195AH provides that the author of a work has a right of integrity of authorship in respect of the work.  The author’s right is not to have the work subjected to derogatory treatment (new s.195AH(2)).

New s.195AI - Derogatory treatment of literary, dramatic or musical work

45.         The term ‘derogatory treatment’ is defined in new s.195AI relation to a literary, dramatic or musical work.  Essentially derogatory treatment is the doing of anything, in relation to the work, that results in a material distortion of, the mutilation of, or a material alteration to, the work itself that is prejudicial to the author’s honour or reputation.  Additionally, under new s.195AI(b) it is the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.  This latter part of the definition is intended to address those instances where a work is used in an inappropriate context that may offend the author’s honour or reputation.

New s.195AJ - Derogatory treatment of artistic work

46.         New s.195AJ provides for the meaning of ‘derogatory treatment’ in relation to an artistic work.  Essentially derogatory treatment is the doing of anything, in relation to the work, that results in a material distortion of, the destruction or mutilation of, or a material alteration to, the work itself that is prejudicial to the author’s honour or reputation.  In addition, under new s.195AJ(b) it is also the exhibition of the work or a reproduction of the work in public that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs.  Under new s.195AJ(c) it is also the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.  This latter part of the definition is intended to address those instances where a work is used in an inappropriate context that may offend the author’s honour or reputation.



New s.195AK - Derogatory treatment of cinematograph film

47.         The term ‘derogatory treatment’ is separately defined in relation to a cinematograph film in new s.195AK.  Essentially derogatory treatment is the doing of anything, in relation to the film, that results in a material distortion of, the mutilation of, or a material alteration to, the work itself that is prejudicial to the honour or reputation of the maker (ie, director and producer - see new s.189).  Under new s.195AK(b) it is also the doing of anything else in relation to the film that is prejudicial to the honour or reputation of the director and producer.  This latter part of the definition is intended to address those instances where a film is used in an inappropriate context that may offend the honour or reputation of the director and producer.

Division 5 - Duration and exercise of moral right s

New s.195AL - Duration of moral rights

48.         New s.195AL confirms that moral rights in respect of a work continue until copyright ceases to subsist in the work.  Therefore, moral rights will not apply to works or films that are in the public domain because copyright has expired.

New s.195AM - Exercise of moral rights

49.         New s.195AM provides that the moral rights of an author, after his or her death or where his or her affairs are administered by another person, may be exercised and enforced by his or her legal personal representative or the person administering his or her affairs. 

50.         Other than in these situations, new s.195AM(2) provides that moral rights are not transmissible by assignment, by will or by operation of law.  This confirms the personal nature of moral rights and that they are different from the economic rights of a copyright owner, which are transferable.

Division 6 - Infringement of moral rights

51.         Division 6 sets out the circumstances in which each of the moral rights will be infringed and the exceptions to infringement.

New s.195AN - Infringement of right of attribution of authorship

52.         New s.195AN provides that a person infringes an author’s right of attribution of authorship if a person does one of the attributable acts (referred to in new s.193) in respect of the work without identifying the author in accordance with Division 2.  This provision is subject to other provisions in the Division.

New s.195AO - Infringement of right not to have authorship falsely attributed

53.         New s.195AO provides that a person infringes an author’s right not to have authorship of a work falsely attributed if the person does an act of false attribution  (see Division 3) in relation to the work. This provision is subject to other provisions in the Division.

New s.195AP - Infringement of right of integrity of authorship

54.         New s.195AP(2) provides that a person infringes an author’s right of integrity if the person subjects an author’s work to derogatory treatment (see Division 4). 

55.         If a literary, dramatic or musical work has been subject to derogatory treatment that infringes the author’s right of integrity, new s.195AP(3) provides that a person also infringes the author’s right of integrity in respect of the work if the person reproduces, publishes, performs, transmits or makes an adaptation of the derogatorily treated work.

56.         New s.195AP(4) provides, in relation to an artistic work, that if the work has been subjected to derogatory treatment within new s.195AJ(a) that infringes the author’s right of integrity, a person also infringes the author’s right of integrity in respect of the work if the person reproduces, publishes or transmits the derogatorily treated work. 

57.         New s.195AP(5) provides, in relation to a cinematograph film, that if the film has been subject to derogatory treatment that infringes the director or producer’s right of integrity, a person also infringes the director and producer’s right of integrity in respect of the film if the person makes a copy of, exhibits or transmits the derogatorily treated film.

58.         The purpose of new s.195AP(3)-(5) is to provide an affected author (or in the case of a film the director and producer) with a right to prevent further use or distribution of the offending version of the work or film.

New s.195AQ - No infringement of right of attribution of authorship if it was reasonable not to identify the author

59.         New s.195AQ set out the circumstances where a failure to identify the author of a work or film will not be an infringement of the author or director and producer’s moral right of attribution.



60.         New s.195AQ(1) provides that a person who does an attributable act (see new s.193) in respect of a work does not, by failing to identify the author of the work, infringe the author’s right of attribution, if the person establishes that it was reasonable in the circumstances not to identify the author. 

61.         New s.195AQ(2) then sets out matters to be taken into account in determining whether it was reasonable in the circumstances not to identify the author of a literary, dramatic, musical or artistic work.  These matters include: the nature of the work; the purpose for which the work is used; the manner in which the work is used; the context in which the work is used; any relevant industry practice; any difficulty or expense that would be incurred to identify the author; and whether the work was made in the course of the author’s employment.

62.         There are similar matters listed in new s.195AQ(3) in relation to non-attribution of a cinematograph film. There is also an additional factor of whether the primary purpose for which the film was made was for exhibition at a cinema, for broadcasting by television or some other purpose (new s.195AQ(3)(b)).

New s.195AR - No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable

63.         New s.195AR(1) provides, in a similar way to new s.195AQ, that a person does not infringe the author’s right of integrity of authorship if the person establishes that it was reasonable in all the circumstances to subject the work to the derogatory treatment. 

64.         New s.195AR(2)(a)-(g) provide for the matters to be taken into account in determining whether it was reasonable in particular circumstances to subject the work to derogatory treatment.  The matters include: the nature of the work; the purpose for which the work is used; the manner in which the work is used; the context in which the work is used; relevant industry practice; whether the work was made in the course of employment; and whether the treatment was required by law (eg, censorship) or was necessary to avoid a breach of the law (eg, defamation).

65.         New s.195AR(3)(a)-(h) set out similar matters in relation to whether derogatory treatment of a cinematograph film was reasonable in all the circumstances.  There is also an additional factor of whether the primary purpose for which the film was made was exhibition at a cinema, broadcasting by television or some other purpose (new s.195AR(3)(b)).



66.         New s.195AR(4) provides for an extension of the ‘reasonableness test’ to any act referred to in new s.195AP(3), (4) and (5) (eg, reproduction, publication or transmission of a derogatorily treated work).  No considerations are, however, prescribed for determining whether any such act was reasonable.

New s.195AS - Certain treatment of artistic work not to constitute an infringement of the author’s right of integrity of authorship

67.         New s.195AS(1) provides that the destruction of a moveable artistic work is not an infringement of the author’s right of integrity if the author was given a reasonable opportunity to remove the work first. 

68.         New s.195AS(2) and (3) provide that a change in a structure containing an artistic work, and anything done in good faith simply to restore or preserve an artistic work, are not infringements of the author’s right of integrity of authorship.

New s.195AT - Infringement by importation for sale or other dealing

69.         New ss.195AT and 195AU provide for further rights against third parties for an author in circumstances where his or her moral rights have been infringed.  The intention is to allow the author to prevent further distribution of an article where his or her moral right has been infringed. 

70.         Under new s.195AT an author’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 had knowledge, or should have known, that if the article had been made in Australia it would have been an infringing article (defined in new s.189) in relation to the author’s moral rights.

New s.195AU - Infringement by sale and other dealings

71.         New s.195AU provides for infringement by sale or other commercial dealings where a person had knowledge, or should have known, that the article is an infringing article (defined in new s.189) or, in respect of an imported article, if the article had been made in Australia it would have been an infringing article in relation to the author’s moral rights.



New s.195AV - Author’s consent to act or omission

72.         New s.195AV confirms that, in circumstances other than where an author has waived a moral right under new s.195AZG, there is no infringement of moral rights to do or omit to do an act if the author has consented in writing to that particular act or omission.  This provision concerns particular acts or omissions in respect of a work that do not operate as a general waiver (as to which, see new s.195AZG).

New s.195AW - Acts or omissions outside Australia

73.         New s.195AW confirms that an author’s moral right in respect of a work has no extra-territorial application.  It only applies to acts or omissions within Australia.

Division 7 - Remedies for infringements of moral rights

74.         This Division provides for the remedies that an author may seek in a civil action before a court.

New s.195AX - Interpretation

75.         New s.195AX provides that an action refers to a civil action between the parties and, in relation to a counterclaim, references in the Division to the defendant are taken to be references to the plaintiff.

New s.195AY - Actions for infringement of moral rights

76.         New s.195AY provides that an action for an infringement of moral rights is not an offence, but the author or his or her legal personal representative may bring a civil action in respect of the infringement.

New s.195AZ - Remedies for infringement of moral rights

77.         New s.195AZ provides for the relief that a court may grant in an action for infringement of any of an author’s moral rights.  The relief includes: an injunction; damages for loss resulting from the infringement; a declaration that a moral right of the author 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.

78.         New s.195AZ(2) lists certain matters the court may take into account in exercising its discretion as to appropriate relief to grant.  These matters include: whether the defendant was aware or ought reasonably to have been aware of the author’s moral rights; the extent of any damage to the work; the number of people who have seen or heard the work; any mitigating actions taken by the defendant; and any relevant costs or difficulty for the defendant.

79.         New s.195AZ(3) provides that where an act has been done after an author has died, damages recovered by the legal personal representative devolve as if they form part of the author’s estate.

New s.195AZA - Saving of other rights and remedies

80.         New s.195AZA(1) 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.

81.         Under new s.195AZA(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 operation.  New s.195AZA(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.

New s.195AZB - Jurisdiction of courts

82.         New s.195AZB(1) provides that the jurisdiction of a State or Territory Supreme Court is to be exercised by a single judge and that an appeal lies from a decision of a State or Territory Court to the Federal Court or, by special leave, the High Court (new s.195AZB(3)).  The Federal Court has jurisdiction in matters under Part IX (new s.195AZB(4)).

New s.195AZC - Presumption as to subsistence of copyright

83.         New s.195AZC provides that in an action for infringement of moral rights, copyright is presumed to subsist in the work if the defendant does not put the question in issue.

New s.195AZD - Presumption as to subsistence of moral rights

84.         New s.195AZD provides that in action under the Part, if copyright is presumed or proved to subsist in the work, then moral rights are also presumed to subsist unless it is established that the author has waived his or her moral rights and the waiver applied to the person against whom the action has been brought.



New s.195AZE - Presumption in relation to authorship of work

85.         New s.195AZE provides that the presumption in s.127 of the Act applies in relation to actions brought under this Part.  Section 127 provides for a presumption of authorship of a published work by the person named in the published copies as such.  Section 127 also includes a special provision on presumption of authorship of photographs.  New s.195AZE also provides for a similar presumption of authorship by the director and the producer of a film where their names appear on copies of the film.

News s.195AZF - Other presumptions in relation to literary, dramatic, musical or artistic work

86.         New s.195AZF provides that ss.128 and 129 apply in actions brought under Part IX. Section 128 and 129 provide for presumptions of subsistence of copyright in published works and originality and date and place of publication of works of deceased authors.

Division 8 - Miscellaneous

87.         This Division provides for a number of matters including waiver and moral rights in works of joint authorship.

New s.195AZG - waiver of moral rights

88.         New s.195AZG(1) provides that a person may waive in writing all or any of his or her moral rights, either for the benefit of everyone or for the benefit of a particular person or class of persons. 

89.         New s.195AZG(2) provides that a waiver may only relate to a specific work or works that exist when the waiver takes place  The only exception to this is in new s.195AZG(3) which provides that a waiver may relate to future works that are made in the course of employment. 

90.         New s.195AZG(4) provides that a waiver may be conditional or unconditional.  A waiver that is made for the benefit of the owner or future owner of copyright is presumed to extend to his or her licensees and successors in title and to any person authorised to do acts comprised in the copyright (new s.195AZG(5)).

91.         New s.195AZG(6) provides that an assignment of copyright does not by that act alone constitute a waiver of moral rights.



New s.195AZH - Parts of works

92.         New s.195AZH confirms that moral rights apply in relation to a whole or a substantial part of the work.

New s.195AZI - Works of joint authorship

93.         New s.195AZI(2)-(4) provide that moral rights apply to each joint author of a work of joint authorship.  The consent of one joint author to any act or omission does not affect the moral rights of any other joint author (new s.195AZI(5)).

94.         New s.195AZI(6) provides that a waiver by one joint author of any moral right does not affect the moral rights of any other joint author.

New s.195AZJ - Cinematograph films that have more than one principal director

95.         New s.195AZJ provides for circumstances where there is more than one principal director of a film.  New s.195AZJ(2)-(4) provide that the moral rights apply to each joint principal director of a film.  The consent of one such director to any act or omission does not affect the moral rights of any other joint principal director of the film (new s.195AZJ(5)).

96.         New s.195AZJ(6) provides that a waiver by one joint principal director of any moral right does not affect the moral rights of any other joint principal director.

New s.195AZK - Cinematograph films that have more than one principal producer

97.         New s.195AZK provides for circumstances where there is more than one principal producer of a film.  New s.195AZK(2)-(4) provide that the moral rights apply to each joint principal producer of a film.  The consent of one such producer to any act or omission does not affect the moral rights of any other joint principal producer of the film (new s.195AZJ(5)).

98.         New s.195AZK(6) provides that a waiver by one joint principal producer of any moral right does not affect the moral rights of any other joint principal producer.

New s.195AZL - Application

99.         New s.195AZL provides that Part IX applies to copyright works and films existing at the commencement of the Part, in the same way that it applies to future works.  Subject to Item 2, Part IX does not affect any prior acts or omissions in relation to existing works.



Item 2 - Section 238 - False attribution of authorship of work

100.      Item 2 repeals s.238 of the Act which is in Part XI of the Act dealing with application of the Act to works and other subject matter predating the commencement of the Act in 1969 and substitutes a new provision in relation to false attribution of authorship of works.  It provides that new s.195AC(b) and (c) and s.195AD(2)(b) and (c), which are the equivalent provisions in new Part IX to the provisions referred to in the existing s.238, apply even though the name was inserted or affixed before the commencement of Part IX.  Other than in those instances, new Part IX does not apply in relation to acts done before the commencement of that Part.

Item 3 - Application

101.      Item 3 provides that the present Part IX of the Act continues to apply after the commencement of Schedule 1, subject to s.238 of the Act as in force immediately before that commencement, in relation to acts done in respect of a work before that commencement.



schedule 2  -  employed journalists’ copyright

Background

102.      The purpose of this Schedule is to amend the Act to reform employed journalists’ copyright.  The proprietors of newspapers, magazines and similar periodicals acquire additional rights to facilitate the electronic publication and delivery of newspapers, magazines and similar periodicals.  Employed journalists retain their traditional rights of photocopying and independent book publication.  Proprietors also acquire a right to restrain photocopying for the purposes of making a reproduction of 15% or more of an issue of a newspaper, magazine or similar periodical.  The amendments do not affect freelance journalists who retain all rights in relation to their works. 

103.      Section 35 of the Act specifies who is the owner of copyright in a work.  In the first instance, copyright is owned by the author (s.35(2)), but where the author is employed, the employer owns copyright in works produced pursuant to the contract of employment (s.35(6)).  However, in the case of works produced by journalists employed by proprietors of newspapers and magazines, the ownership of copyright is split between journalists and proprietors (s.35(4)). 

104.      Subsection 35(4) currently provides that the proprietor is the owner of copyright in specified circumstances and the journalist is the owner of residual copyright rights in the work, including rights in relation to the photocopying of their works by press clippings services and rights in relation to on-line use of their works. 

Item 1 - Subsection 35(4)

105.      Item 1 repeals s.35(4) and substitutes a new subsection.  New s.35(4)(c) provides that copyright in a literary, dramatic or artistic work made by a journalist under the terms of their employment by the proprietor of a newspaper, magazine or similar periodical is owned by the journalist for the purpose of:

•   reproduction for the purpose of independent book publication; and

•   photocopying. 

106.      New s.35(4)(c)(ii) specifies that the ‘photocopying’ that is the subject of the journalists’ copyright is reproduction of the work from an issue of the newspaper, magazine or similar periodical other than for a purpose connected with the publication of the newspaper, magazine or similar periodical. 

107.      Reproduction that is the right of the journalist is, under s.35(4)(c)(ii), confined to the making of a hard copy facsimile from a paper edition of a newspaper, magazine or similar periodical, including a hard copy facsimile made from another hard copy facsimile made directly from a paper edition of an issue of a newspaper, magazine or similar periodical. 

108.      The journalists’ right of reproduction is not restricted to hard copy facsimiles made on a machine that uses photographic processes to make copies, and also applies to copies made on machines that use digital processes to make hard copy reproductions from hard copy originals. 

109.      However, new s.35(4)(c)(ii) expressly excludes copies made as part of a transmission process from the scope of the journalists’ rights of reproduction, including, for example, hard copy facsimiles made as a result of a fax machine transmission. 

110.      New s.35(4)(d) provides that the proprietor owns copyright in a work made by an employed journalist for all purposes other than independent book publication and photocopying.  In effect, new s.35(4)(d) provides that proprietors’ rights in works made by employed journalists include rights in relation to uses in on-line databases.  Also, proprietors own the copyright in reproductions made from a hard copy facsimile of an issue of a newspaper, magazine or similar periodical that is downloaded from an on-line database.

Item 2 - At the end of section 35

111.      Item 2 inserts new s.35(7).  New s.35(7) defines ‘hard copy facsimile’ in relation to a reproduction of a literary, dramatic or artistic work to mean a facsimile (exact copy) that can be read by a human being without the aid of any device or machine.  The definition of hard copy facsimile in new s.35(7) excludes copies stored on floppy disks or copies stored in computer memory because works stored in such media cannot be read by humans without the use of a computer. 

Item 3 - At the end of Division 1 of Part III

New s.35A - Proprietor of newspaper, magazine or similar periodical may in certain circumstances restrain reproduction of issue containing work subject to copyright

112.      Item 3 inserts new s.35A.  Notwithstanding that copyright in works of employed journalists in a newspaper, magazine, or similar periodical for the purposes of photocopying is owned by the authors, new s.35A(1) provides that the proprietor is entitled to restrain a person from photocopying the whole or part of an issue of the newspaper, magazine, or similar periodical containing the works if the reproduction would amount to 15% or more of all the matter contained in the issue.  New s.35A(1)(c) provides that the pages of the issue that contain full page advertisements are excluded from the calculation of whether the photocopying exceeds 15% of the issue. 

113.      New s.35A(2) provides that formal matters such as the title of the newspaper, magazine or similar periodical and the page number are to be disregarded in determining whether a page contains only advertising matter.

114.  New s.35A(3) provides that the proprietors’ right of restraint in s.35A(1) does not apply if the reproduction of the work without the licence of the copyright owner would not be an infringement of copyright.  For example, the publishers’ right of restraint does not apply to reproductions made pursuant to the fair dealing exceptions to copyright or the statutory licence for Government copying in the Act.

115.  New s.35A(4) specifically provides that the proprietors’ right of restraint may be excluded or modified by agreement.  For example, the provision permits proprietors to reach agreement with news clipping businesses that the right of restraint provided for in new s.35A will not be exercised to the full extent possible under the provision.

116.  New s.35A(5) provides that all the copies made by one person for a particular client from an issue of a newspaper, magazine or similar periodical together comprise the reproduction for the purpose of calculating whether 15% of an issue has been copied. 

117.  New s.35A(6) defines ‘hard copy facsimile’  in relation to a reproduction of a literary, dramatic or artistic work to mean a facsimile (exact copy) that can be read by a human being without the aid of any device or machine.  This definition mirrors the definition of hard copy facsimile in new s.35(7) in Item 2. 

Item 4 - Application

118.  Item 4 provides that the journalists’ copyright amendments made by Items 1, 2 and 3 apply only to works made after the commencement of the Schedule.  Accordingly, the amendments apply prospectively and do not affect existing works.



schedule 3 - labelling and packaging etc. of imported goods etc.

Background

119.      The amendments effected by this Schedule implement the Government’s response to that part of the 1988 report of the Copyright Law Review Committee (CLRC) on The Importation Provisions of the Copyright Act 1968 that dealt with the use of copyright in packaging and labelling to control the marketing of imported goods.

120.      The CLRC found that importation into and distribution in Australia of a variety of goods could be controlled and exclusively licensed by overseas manufacturers by relying on ownership of copyright in the labelling or packaging of the goods. 

121.      In the case of Bailey v Boccacio (1986) the defendant imported for sale in Australia bottles of Bailey’s Irish Cream at a lower cost than through the Australian distributor appointed by the manufacturer.  The NSW Supreme Court held that the importation infringed the copyright in the artistic work held by the manufacturer, and assigned in Australia to the distributor, namely, the picture on the bottle label.

122.      In essence the amendments will allow the importation of goods with copyright packaging or labelling without the permission of the copyright owner, if the owner of the copyright had agreed to the use of the copyright material with the goods.  The amendments will not, however, affect the operation of the law governing trade marks, insofar as the packaging or labelling includes a trade mark.

Item 1 - Subsection 10(1) (definition of infringing copy )

123.      Item 1 amends the definition of ‘infringing copy’ in s.10(1) of the Act so that it expressly excludes not only non-infringing books but also a non-infringing accessory, which is the subject of a new definition to be inserted by Item 3.

Item 2 - Subsection 10(1)

124.      This item inserts a definition of ‘accessory’ in s.10(1) of the Act.  It includes: a label whether affixed to, displayed on, or incorporated into the surface of, or accompanying, the article being imported; packaging (and any label on that packaging) in which the article is packed; written instructions, warranty or other information provided with the article; and an instructional sound recording or cinematographic film (usually expected to be an audio or video cassette or disk) provided with the article.  Computer software manuals are excluded from the definition.

Item 3 - Subsection 10(1)

125.      This item inserts a definition of ‘non-infringing accessory’ in s.10(1) of the Act.  A non-infringing accessory is defined to mean an accessory that was made in a World Trade Organisation (WTO) member country and which bears or incorporates a copy of a work or published edition that was made with the authority of the owner of copyright in that country.  The definition also applies to instructional sound recordings and films which the definition of ‘accessory’ covers and which were made with the authority of the owners of copyright in the WTO member country of manufacture.

Item 4 - Section 37

126.      Item 4 makes a technical amendment to s.37 of the Act so that the exclusion prefacing the operation of the section refers to all the provisions in Division 3 of Part III of the Act following the enactment of the amendments in this Schedule.

Item 5 - At the end of section 37 and Item 9 - At the end of section 102

127.      Items 5 and 9 make technical amendments to ss.37 and 102, respectively, in relation to importation of an accessory to an article, where the accessory involves an unauthorised copy of a work or reproduction of a published edition, sound recording or cinematograph film, so that importers will face a strict liability in regard to importation of articles with accessories involving such unauthorised copies or reproductions.  Importers of goods with copyright packaging and labelling will, at their peril, fail to satisfy themselves that the use of the copyright material in the packaging and labelling was authorised by the copyright owner.

128.      Items 5 and 9 effect this by providing for the addition of new s.37(2) and new s.102(2) in the Act.  Section 37 provides that it is an infringement of copyright in works to import articles for commercial purposes without the licence of the copyright owner if the importer knew or ought reasonably to have known that if the importer had made the article in Australia, that would have been an infringement of the copyright.

129.      This amendment will remove the knowledge requirement in relation to commercial importation of anything with copyright packaging or labelling (ie, an accessory).  That  is, if the accessory fails to come within the definition of ‘non-infringing accessory’ being inserted by Item 3 (ie, the copyright material in the accessory was used without the copyright owner’s permission), then the importer will be liable for infringement of the copyright under s.37 even though that importer did not have the required knowledge under s.37.

130.      Item 9 makes the same amendment to s.102 which provides for infringement by importation in the same terms for subject matter other than works (ie, published editions, films and sound recordings) as does s. 37 in relation to works.

Item 6 - Subsection 38(1)

131.      Item 6 provides for the same amendment in relation to s.38(1) of the Act as Item 4 does in relation to s.37.

Item 7 - At the end of Division 3 of Part III

S.44C - Copyright subsisting in accessories etc. to imported articles

132.      Item 7 exempts from copyright infringement the importation and subsequent commercial dealing with articles that have copyright packaging and labelling included in or comprising a non-infringing accessory.  The item amends the Act by adding a new s.44C.  New s.44C(1) provides that it is not an infringement of copyright in a work to import a non-infringing accessory to an article where the accessory incorporates or has on it a copy of the copyright work.  New s.44C(2) exempts from the application of s.38 copies of works on or embodied in a non-infringing accessory if the importation of that accessory is not an infringement of copyright.  Section 38 makes commercial distribution of articles embodying copyright works that are imported without the consent of the owner of the copyright an infringement of the copyright.

Item 8 - Section 102

133.      Item 8 makes a technical amendment to s.102 corresponding to the amendment in Item 4, so that the exclusion prefacing the operation of the section refers to new s.112C in Part IV of the Act that is to provide for exceptions to infringement by importation.  That is, the reference to s.112A alone is replaced by a reference to ss.112A and 112C.

Item 9 - At the end of section 102

134.      See notes above on Item 5.

Item 10 - Subsection 103(1)

135.      Item 10 makes the same amendment in relation to s.103 of the Act as Item 8 does in relation to s.102.



Item 11 - At the end of Division 6 of Part IV

S.112C - Copyright subsisting in accessories etc. to imported articles

136.      See notes on Item 7.  Item 11 adds new s.112C to the Act which makes provision, in similar terms as new s.44C, in relation to subject matter other than works, namely, published editions, cinematographic films and sound recordings.  The new definition of ‘non-infringing accessory’ inserted by Item 3 includes reference to published editions of works, on or embodied in an accessory and to accessories consisting of instructional sound recordings and films.



schedule 4 - conversion and detention

Background

137.      The purpose of the amendments in Schedule 4 is to give effect to recommendations of the CLRC, in its 1990 Report on Conversion Damages , to amend the Act to make the availability and extent the two remedies of conversion damages and the delivery up of infringing goods (detention) subject to the discretion of the court, rather than automatic rights as is the case under the present law.

138.      The new provisions recognise that there are some cases where the award of conversion damages and the delivery up of infringing goods are merited, and that the decision as to whether they are appropriate in particular cases should be within the discretion of the court exercisable according to criteria set out in the proposed amendments.

139.      The present law provides that, where a copyright owner is entitled to damages for conversion, the infringing copy or ‘plate’ is treated as if it had been taken out of the possession of the copyright owner, wrongfully detained in defiance of the copyright owner’s rights and, as the case may be, wrongfully delivered or disposed of by way of sale or other disposition, destroyed, or dealt with in any other way whereby the owner is deprived of the use or possession of the copy.  The quantum of damages is the value of the copies at the time of the deemed conversion.  Where the infringer has possession of any infringing copies or plates, the copyright owner may then bring an action for detention, for which the remedy is either delivery of the goods to the copyright owner or damages.

140.      Presently, it makes no difference that the infringing copy is an insubstantial part of an article, eg, a badge on a soccer ball, or a few pages of a book.  The whole article must be either delivered to the copyright owner or the value of the goods paid by way of damages.  Implementation of the CLRC recommendation will avoid possible abuse by copyright owners and unfairness to defendants.

Item 1 - Subsection 10(1)

141.      This item makes a technical amendment to insert in s.10(1) of the Act a provision to state that ‘device’ includes a ‘plate’.  The term plate is already defined in s.10(1) to include various forms of equipment used in printing.

Item 2 - Subsection 116(1)

142.      The substantive change is effected by Item 2.  The item repeals s.116(1) and inserts new s.116(1) and 116(1A) to 116(1E). 

143.      New s.116(1) provides that a copyright owner can still bring an action for conversion or detention in relation to an infringing copy or a device (which is the subject of a new definition inserted by Item 1) for use in making infringing copies.

144.      New s.116(1A) establishes the discretion of the court to award the remedies for such actions.  New s.116(1B) affirms that any remedy would be additional to any remedy for infringement under s.115 of the Act.  New s.116(1C) denies the award of a remedy under s.116(1A), if the remedy for infringement granted, or to be granted, under s.115 is, in the opinion of the court, a sufficient remedy.

145.      New s.116(1D) provides for the criteria to which a court may have regard in determining whether to grant relief and the extent of any such relief.  The criteria are:

•     the expenses incurred by the defendant, being the person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy;

•     whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant; and

•     any other matter that the court considers relevant.

146.      New s.116(1E) also provides that, if the infringing copy is an article of which only part consists of material that infringes copyright, the court, in deciding whether to grant relief, and the extent of any such relief, can also have regard to:

•     the importance that the material that infringes copyright has to the market value of the article;

•     the proportion that the material that infringes copyright bears to the article; and

•     the extent to which the material that infringes copyright may be separated from the article.

Item 3 - Paragraph 116(2)(c)

147.      This is a technical amendment to replace the term ‘plate’ in s.116(2)(c) of the Act with ‘device’, which is the subject of a new definition inserted by Item 1 and which includes ‘plate’.

Item 4 - Application

148.      This item adds a new s.116(3) to provide that the new provisions inserted by this Schedule in s.116 will only apply to actions for conversion or detention brought after the commencement of the Schedule.



schedule 5 - copying for the services of the commonwealth, state and territory governments

Background

 

149.      Schedule 5 inserts amendments into the Act to streamline the system for owners of copyright in works and other subject matter to be paid when their materials are copied by Commonwealth, State and Territory governments.

 

150.      The amendments will enable the governments to avail themselves of an administratively simple procedure for calculating and making payments of equitable remuneration to copyright owners for the use of their copyright materials by the governments.

151.      The rights of the governments to use the copyright materials of others and the obligations associated with such use are set out in s.183 of the Act.  The governments under s.183(1) may do any act comprised in the copyrights of others without infringement if the act is done for the services of government.  There is an obligation under s.183(4) to inform the copyright owner (or agent) of the use of the copyright as soon as possible, unless it would be contrary to the public interest to do so.  Section 183(5) provides for the determination of terms by negotiation between the copyright owner (or agent) and the government or, if negotiations fail, by the Copyright Tribunal.

 

152.      The amendments in Schedule 5 will vary the operation of s.183(4) and 183(5) of the Act to permit payments for the reproduction of copyright materials by a government to be made the basis of sampling, rather than the present method of full record-keeping under s.183, where there is a declared copyright collecting society.  A relevant collecting society, which can be declared by the Copyright Tribunal in relation to all government copies or a class of government copies, will distribute the equitable remuneration to the owners of copyright in the material that has been copied and will hold in trust the remuneration for non-members who are entitled to receive it. 



Item 1 - At the beginning of Division 3 of Part VI

S.148 Interpretation

153.      Item 1 inserts in Division 3 of Part VI (Applications and References to the Copyright Tribunal) new s.148 as an interpretation provision.  The meanings of the terms ‘copyright material’, ‘government’ and ‘government copy’ are the same as in new Division 2 of Part VII (Use of copyright material for the Crown).

Item 2 - After section 153D

154.      Item 2 inserts new s.153E into the Act in relation to applications to the Copyright Tribunal under the present s.183(5). 

155.      It also inserts into the Act new ss.153F, 153G, 153H, 153J and 153K.  These provisions provide for the mechanism by which the Copyright Tribunal declares (or revokes a declaration of) a relevant collecting society for the purposes of the sampling scheme in new Division 2 of Part VII.

S.153E Applications to Tribunal under s.183(5)

156.      Item 2 inserts into the Act new s.153E which is a procedural provision in relation to bringing an application to fix terms before the Copyright Tribunal in circumstances where s.183(5) continues to have application.  It provides that the parties to an application are the Commonwealth (or State or Territory as the case may be) and the owner of copyright.  It also provides that the Tribunal may make an order fixing terms for the doing of the act after giving the parties an opportunity to present their cases. 

S.153F - Applications to Tribunal to declare collecting society for government copies

157.      New s.153F(1) provides that a company limited by guarantee may apply to the Tribunal for a declaration that it be a collecting society for the purposes of Division 2 of Part VII.  The Tribunal can make any other person a party to the application if the person asks and the Tribunal thinks that the person has a sufficient interest in whether the applicant should be declared a collecting society or whether any current declaration of the collecting society should be revoked (new s.153F(3)). 

158.      New s.153F(5) provides that a declaration by the Tribunal may be in relation to all government copies or a specified class of government copies.  The provision for a specified class of government copies is intended to cater for the situation where a collecting society’s authority from its members to licence use of their works is limited to only some forms of reproduction, eg, photocopying, and does not extend to others, eg, digitisation.

159.      New s.153F(6) sets out the factors the Tribunal must be satisfied about before declaring a collecting society.  For example, the society applying in relation to a class of government copies must, in its rules, permit a relevant owner of copyright (or agent) in any copyright material a reproduction of which under s.183 would be within that class to become a member of the society.  The provision also sets out the types of rules that a society must have for the adequate protection of its members, including rules on what administrative costs may be deducted from the royalties collected and on members’ rights of access to the society’s records.

160.      New s.153F also provides that a declaration must specify the day on which it takes effect (s.153F(7)) and that the declaration must be published in the Gazette by the Secretary to the Tribunal (s.153F(8)).

S.153G - Applications to Tribunal to revoke a declaration of a collecting society

161.      New s.153G provides for the mechanics for an application to the Tribunal to revoke a declaration of a collecting society.  The collecting society, one of its members or a government may apply for a revocation (s.153G(1)).  The Tribunal may make another person party to the application if the Tribunal thinks that the person has a sufficient interest in the question whether the declaration of the society should be revoked (s.153G(3)). 

162.      The Tribunal may only revoke a declaration if the society is not functioning adequately as the collecting society, is not acting in accordance with its rules or the best interests of its members or has contravened its rules so that they no longer comply with new s.153F(6) or the other new accountability provisions being inserted in the Act.  As in the case of a declaration, new s.153G(6) and (7) require a date of operation of a revocation and its notification in the Gazette .

S.153H - Time limit for deciding applications under s.153F or 153G

163.      New s.153H provides that the Tribunal is to make its decision on an application for declaration or revocation under new s.135F or 153G within 6 months after the completion of the hearing.  This time limit is subject to extension on account of the complexity of the application or other special circumstances (s.153H(2)), in which case the Tribunal must tell the applicant that the matter will not be finalised in that time period (s.153H(3)).



S.153J - Amendment and revocation of a declaration on the declaration of another collecting society

164.      New s.153J sets out the circumstances when the Tribunal must amend or revoke an existing declaration made under s.153F upon the declaration of another society under s.153F.  The intention is to ensure that there is only one relevant declaration in force at any one time in relation to a class of government copies or all government copies.  Section 153J(2) requires amendment of the existing declaration if the Tribunal proposes to make a new declaration which relates to some of the types of copies covered by the existing declaration, so that there is no overlap as between the existing and proposed declarations.  Section 153J(3) provides that if a declaration is in force under s.153F and the Tribunal makes another declaration under that provision in relation to all government copies or a class of government copies that includes all government copies to which the previous declaration relates the Tribunal must revoke the previous declaration.  An amendment or revocation takes effect at the same time as the new declaration (s.153J(2) and (4)) and the Secretary to the Tribunal must publish the relevant notices in the Gazette (s.153J(5)).

S.153K - Applications to Tribunal for method of working out payment for government copies

165.      New s.153K provides for applications to the Tribunal by a government or a collecting society to determine the method of working out equitable remuneration payable under new s.183A(2) for government copies in a particular period.  This section would apply where the parties could not reach agreement.  The Tribunal’s order may also specify how and when payments of the amount are to be made (s.153K(4)).

Item 3 - After the heading to Part VII

166.      This item inserts a new heading in Part VII (The Crown) called ‘Division 1 - Crown copyright’ to recognise that there are two Divisions to this Part - one Division consisting of provisions on where the Crown is owner of copyright and the other consisting of provisions on where the Crown is a user of copyright materials.

Item 4 - After section 182A

167.      Item 4 inserts a new heading into Part VII called ‘Division 2 - Use of copyright material for the Crown’ and new provisions in relation to definitions. 



S.182B - Definitions

168.      New s.182B sets out the meaning of key terms for the operation of the Division, namely, ‘collecting society’, ‘copyright material’, ‘government’ and ‘government copy’.  A collecting society means a company that has been declared to be a society by the Copyright Tribunal under new s.153F.  A government copy means a reproduction in a material form of copyright material (ie, a work, sound recording, cinematograph film, broadcast, published edition of a work, or a work included in a sound recording, cinematograph film or broadcast).

169.      Computer programs and compilations of computer programs are excluded from the operation of the new provisions (s.182B(2)).

S.182C - Relevant collecting society

170.      New s.182C provides that where there is a declaration in force under Division 3 of Part VI of a company in relation to all government copies or a specified class of government copies, that company is the relevant collecting in relation to any copy, or to any copy within that class.

Item 5 - At the end of Part VII

S.183A Special arrangements for copying for services of government

171.      Item 5 inserts after s.183 of the Act new s.183A which provides that s.183(4) and (5) do not apply in relation to a government copy (whenever it was made) if there is a relevant declared collecting society in operation. 

172.      New s.183A(2) provides that the Government must pay to the relevant collecting society, in relation to relevant government copies made in a particular period, equitable remuneration worked out by agreement or, if there is no agreement, determined by the Copyright Tribunal under s.153K.  The method for working out or determining the remuneration must take into account the estimated number of relevant government copies made during the particular period and specify the sampling system to be used for estimating the number of copies (s.183A(3)), and may provide for different treatment of different kinds or classes of government copies (s.183A(4)).

173.      New s.183A(6) provides for a definition of ‘excluded copies’, as used in s.183A(2) and (3), as copies in respect of which the government considers it would be contrary to the public interest to disclose information about the making of the copies.  This exclusion is similar to the exception in s.183(4) of the Act which relieves the government from notifying the owner of copyright where it appears to the government that it would be contrary to the public interest to do so (eg, for security reasons).

S.183B - Payment and recovery of equitable remuneration for government copies

174.      New s.183B provides that payment of equitable remuneration by the government for government copies to the relevant collecting society is to be in accordance with the applicable agreement between them or the order of the Copyright Tribunal, whichever applies, and establishes the right of the collecting society to recover unpaid remuneration in a competent court. 

S.183C Powers of collecting society to carry out sampling

175.      New s.183C sets out the rights of a relevant collecting society to carry out sampling, as agreed or determined, on government premises.  The collecting society is to give written notice to the government specifying a period when it proposes that the sampling take place.  The period specified must not commence earlier than 7 days after the day on which the notice is given (s.183C(2)).

176.      The government department or agency can give the society a written objection, based on reasonable grounds, to the sampling being carried out at the time or place specified in the society’s notice.  However, the notice of objection must suggest an alternative period or place for the sampling (s.183C(3)).  If the government has not objected, or once any objection is resolved or withdrawn, sampling may take place in accordance with the agreed or determined method on any ordinary working day (s.183C(5)).  The government must take reasonable steps to ensure that the person who attends at the premises is given all reasonable and necessary assistance for carrying out the sampling (s.183C(6)).

S.183D - Annual report and accounts of collecting society

177.      New s.183D provides that an annual report must be prepared and accounts kept and an audit arranged by any declared collecting society, which must send them to the Attorney-General who in turn is required to table them in Parliament.  This is consistent with the requirements of collecting societies declared for the purposes of the statutory licences for educational copying in the Act.  Section 183D requires the collecting society to keep correct accounting records and also allow reasonable access by its members to all its reports and accounts.



S.183E - Alteration of rules of collecting society

178.      New s.183E provides that any alteration of the rules of a relevant collecting society must be sent to the Attorney-General and the Tribunal, together with a statement concerning the changes, within 21 days of the alteration being made.

Item 6 - Application

179.      Item 6 provides, in effect, that if a government copy was made before the first declaration of the relevant collecting society under s.153F and, but for this provision, the copyright owner would have been entitled to, but has not been paid, remuneration under s.183(5) of the Act, s.183A has effect as if s.153F had been in force and the relevant collecting society had been declared and was operational when the copy was made.



schedule 6 - people with an intellectual disability and people with a print disability

Background

180.      The amendments in Schedule 6 in general introduce more appropriate terminology in the provisions in the Act that affect people with a print or intellectual disability.  The amendments also remove certain distinctions between the relevant statutory licences in Part VB which are no longer considered appropriate or desirable.

181.      The Act contains a number of provisions where the terms, ‘intellectually handicapped persons’ and ‘handicapped readers’ are used.  The use of the term ‘handicapped’ to describe persons with print or intellectual disabilities does not accord with the current disability policy and these are to be replaced by more appropriate terms, for example, replacement of ‘handicapped readers’ by ‘persons with a disability’ and ‘intellectually handicapped persons’ by ‘persons with an intellectual disability’.

182.      The items in the Schedule also amend the Act so as to allow institutions assisting persons with a print disability who copy under the licence in s.135ZP to do so for the same purposes as provided for in the statutory licence for copying for persons with an intellectual disability.  The licence for copying for persons with an intellectual disability is not limited to research or study and it is considered that the licence for persons with a print disability should have a similar provision to enable them to have quicker access to more copyright materials.

Item 1 - Subsection 10(1) (definition of handicapped reader )

183.      Item 1 repeals the definition of ‘handicapped reader’ in s.10(1) of the Act.

Item 2 - Subsection 10(1) (definition of institution assisting handicapped readers )

184.      Item 2 repeals the definition of ‘institution assisting handicapped readers’ in s.10(1) of the Act.

Item 3 - Subsection 10(1) (definition of institution assisting intellectually handicapped persons )

185.      Item 3 repeals the definition of ‘institution assisting intellectually handicapped persons’ in s.10(1) of the Act.



Item 4 - Subsection 10(1)

186.      Item 4 inserts a new definition of ‘institution assisting persons with an intellectual disability’ in s.10(1) of the Act in place of the definition of ‘institution assisting intellectually handicapped persons’.  The new definition is the same as the present one except that it extends to for-profit institutions, which are expressly excluded from the present definition.

Item 5 - Subsection 10(1)

187.      Item 5 inserts a new definition of ‘institution assisting persons with a print disability’ in s.10(1) of the Act to replace the definition of ‘institution assisting handicapped readers’.  The new definition is the same as the present one except that it extends to for-profit institutions, which are excluded from the present definition.

Item 6 - Subsection 10(1)

188.      Item 6 inserts a new definition of ‘person with a print disability’ in s.10(1) of the Act to replace the definition of ‘handicapped reader’.  The terminology contained in the new definition also varies slightly from that in the definition of ‘handicapped reader’.

Items 7 (s.10(3)), 14 (s.10A(1)(d)), 19 (s.135A (paragraph (b) of the definition of institution )), 20 (s.135E(1)(c)), 21 (s.135F), 22 (s.135U(1)(d)), 24 (s.135ZB (paragraph (c) of the definition of institution ), 26 (s.135ZB (paragraph (c) of the definition of licensed copy ), 38 (Division 4 of Part VB (Heading)), 39 (s.135ZR), 40 (s.135ZS(1)), 41 (s.135ZT), 46 (s.135ZZF(3)), 53 (s.195A(3)), 54 (s.200AA) and 56 (s.248A(1)(paragraph (e) of the definition of exempt recording ))

189.      Items 7, 14, 19, 20, 21, 22, 24, 26, 38, 39, 40, 41, 46, 53, 54 and 56 substitute ‘persons with an intellectual disability’ for ‘intellectually handicapped persons’ wherever occurring in those provisions of the Act.

Item 8 - Subsection 10(3)

190.      Item 8 substitutes ‘a copy for a person with an intellectual disability’ for ‘an intellectually handicapped person’s copy’ wherever referred to in s.10(3).



Items 9 (s.10(3)(f)), 13 (s.10A(1)(c)), 23 (s.135ZB (paragraph (b) of the definition of institution )), 25 (s.135ZB (paragraph (b) of the definition of licensed copy )), 27 (s.135ZC(e)), 28 (Division 3 of Part VB (Heading)), 29 (s.135ZN), 30 (s.135ZP), 33 (s.135ZQ), 45 (s.135ZZF(2)), 52 (s.195A(3)) and 55 (s.248A(1) (paragraph (d) of the definition of exempt recording ))

191.      Items 9, 13, 23, 25, 27, 28, 29, 30, 33, 45, 52 and 55, substitute ‘persons with a print disability’ for ‘handicapped readers’ wherever occurring in those provisions of the Act.

Item 10 - Paragraph 10(3)(h)

192.      Item 10 repeals the present s.10(3)(h) of the Act and substitutes a new paragraph using the appropriate terminology and omitting the limitation that the record or Braille, large-print or photographic version made be used by the reader with a print disability only for the purpose of research or study or of instructing himself or herself on any matter.  The new paragraph provides that the record or version be so made for the sole purpose of use in the provision of assistance to a person with a print disability, whether by the institution or otherwise.

Item 11 - Paragraph 10(3)(ha)

193.      Item 11 substitutes ‘a person or persons with an intellectual disability’ for ‘an intellectually handicapped person or persons’ in s.10(3)(ha).

Item 12 - Subparagraph 10(3)(m)(i)

194.      Item 12 substitutes ‘copy for a person with a print disability’ for ‘handicapped reader’s copy’ in s.10(3)(m)(i).

Item 13 - Paragraph 10A(1)(c)

195.      See notes on Item 9.

Item 14 - Paragraph 10A(1)(d)

196.      See notes on Item 7.

Item 15 - Section 47A (except paragraph (11)(b))

197.      Item 15 substitutes ‘print disability radio licence’ for ‘print-handicapped radio licence’ wherever occurring in s.47A.

Item 16 - Paragraph 47A(11)(b)

198.      Item 16 substitutes ‘print disability radio licence’ for ‘print-handicapped radio licence’ as the defined expression in s.47A(11)(b).

Item 17 - Section 112

199.      Item 17 substitutes ‘copy for a person with a print disability or a copy for a person with an intellectual disability’ for ‘handicapped reader’s copy or an intellectually handicapped person’s copy’ in s.112.

Item 18 - Subparagraph 112(b)(ii)

200.      Item 18 substitutes ‘copies for persons with a print disability or copies for persons with an intellectual disability’ for ‘handicapped readers’ copies or intellectually handicapped persons’ copies’ in s.112(b)(ii).

Item 19 - Section 135A (paragraph (b) of the definition of institution)

201.      See notes on Item 7.

Item 20 - Paragraph 135E(1)(c)

202.      See notes on Item 7.

Item 21 - Section 135F

203.      See notes on Item 7.

Item 22 - Paragraph 135U(1)(d)

204.      See notes on Item 7.

Item 23 - Section 135ZB (paragraph (b) of the definition of institution )

205.      See notes on Item 9.

Item 24 - Section 135ZB (paragraph (c) of the definition of institution)

206.      See notes on Item 7.

Item 25 - Section 135ZB (paragraph (b) of the definition of licensed copy )

207.      See notes on Item 9.

Item 26 - Section 135ZB (paragraph (c) of the definition of licensed copy )

208.      See notes on Item 7.

Item 27 - Paragraph 135ZC(e)

209.      See notes on Item 9.

Item 28 - Division 3 of Part VB (Heading)

210.      See notes on Item 9.

Item 29 - Section 135ZN

211.      See notes on Item 9.

Item 30 - Section 135ZP

212.      See notes on Item 9.

Item 31 - Paragraph 135ZP(1)(b)

213.      Item 31 repeals the present s.135ZP(1)(b) which, as a condition of the statutory licence, provides that each record must be made solely for use by a reader for the purposes of research or study or for the purpose of otherwise instructing himself or herself on any matter, and replaces it with a new s.135ZP(1)(b).  The new paragraph provides a wider scope for copying in that the record be made solely for the purposes of use in the provision of assistance to persons with a print disability, whether by the institution or otherwise.  This provision is consistent with the licence for people with an intellectual disability.

Item 32 - Paragraph 135ZP(2)(b)

214.      Item 32 repeals the present s.135ZP(2)(b) which, as a condition of the statutory licence, provides that each version must be made solely for use by a reader for the purposes of research or study or for the purpose of otherwise instructing himself or herself on any matter, and replaces it with a new s.135ZP(2)(b).  The new paragraph provides a wider scope for copying in that the version be made solely for the purposes of use in the provision of assistance to persons with a print disability, whether by the institution or otherwise.  This provision is consistent with the licence for people with an intellectual disability.



Item 33 - Section 135ZQ

215.      See notes on Item 9.

Item 34 - Subsection 135ZQ(1)

216.      Item 34 omits the reference to ‘handicapped reader’s’ in s.135ZQ(1).

Item 35 - At the end of subsection 135ZQ(1)

217.      Item 35 inserts ‘for a person with a print disability’ at the end of s.135ZQ(1).

Item 36 - Paragraph 135ZQ(2)(b)

218.      Item 36 repeals the present s.135ZQ(2)(b) which, in part, provides that where a relevant reproduction is not destroyed within 3 months after the day on which it was made the relevant licence does not apply.  The new s.135ZQ(2)(b) no longer provides for this obligation to destroy the relevant reproduction within 3 months.  Under the new s.135ZQ(2)(b), as under the present provision, the licence applies unless the relevant reproduction is used otherwise that in the making of a copy of the work reproduced or part of the work for a person with a print disability.

Item 37 - After subsection 135ZQ(4)

219.      Item 37 inserts new s.135ZQ(4A), (4B) and (4C) dealing with the making of relevant reproductions by institutions assisting persons with a print disability.  The new subsections effectively require the relevant body administering an institution assisting persons with a print disability to give notice to a collecting society within 3 months of making a relevant reproduction (4A), and sets out the requirements for the notice (4B). 

220.      The amendment also provides that it is an infringement of copyright for a person to do any of the acts of commercial dealing specified in s.38 of the Act in relation to a relevant reproduction if the person knows or ought reasonably to know that the relevant reproduction was made solely for use in assisting people with a print disability (4C).

Item 38 - Division 4 of Part VB (Heading)

221.      See notes on Item 7.

Item 39 - Section 135ZR

222.      See notes on Item 7.

Item 40 - Subsection 135ZS(1)

223.      See notes on Item 7.

Item 41 - Section 135ZT

224.      See notes on Item 7.

Item 42 - Subsection 135ZT(1)

225.      Item 42 substitutes ‘a’ for ‘an intellectually handicapped person’s’ in s.135ZT(1).

Item 43 - At the end of subsection 135ZT(1)

226.      Item 43 inserts ‘ for a person with an intellectual disability’ at the end of s.135ZT(1).

Item 44 - Paragraph 135ZT(2)(b)

227.      Item 44 amends s.135ZT(2)(b) so as no longer to require the destruction within 3 months of copies for people with an intellectual disability in a similar way to the amendments to s.135ZQ(2)(b) for people with a print disability.  See notes to Item 36.

Item 45 - Subsection 135ZZF(2)

228.      See notes on Item 9.

Item 46 - Subsection 135ZZF(3)

229.      See notes on Item 7.

Item 47 - Section 135ZZG

230.      Item 47 omits ‘handicapped reader’s’ from s.135ZZG.

Item 48 - Section 135ZZG

231.      Item 48 inserts ‘for a person with a print disability’ after ‘work’ in s.135ZZG.

Item 49 - Section 135ZZG

232.      Item 49 substitutes ‘a’ for ‘an intellectually handicapped person’s’ in s.135ZZG.



Item 50 - Section 135ZZG

233.      Item 50 inserts ‘for a person with an intellectual disability’ after ‘item’ in s.135ZZG.

Item 51 - Subsection 149A(3)

234.      Item 51 omits ‘for the making of the sound broadcast, copy, handicapped reader’s copy, or intellectually handicapped person’s copy, as the case requires’ from s.149A(3).

Item 52 - Subsection 195A(3)

235.      See notes on Item 9.

Item 53 - Subsection 195A(3)

236.      See notes on Item 7.

Item 54 - Section 200AA

237.      See notes on Item 7.

 

Item 55 - Subsection 248A(1) (paragraph (d) of the definition of exempt recording )

238.      See notes on Item 9.

Item 56 - Subsection 248A(1) (paragraph (e) of the definition of exempt recording )

239.      See notes on Item 7.



schedule 7 - copying of works etc. by institutions

Background

240.      This Schedule makes a number of minor amendments to the statutory educational copying licences in Parts VA and VB of the Act to facilitate the effective operation of these licenses for the benefit of not only the relevant collecting societies but also the educational institutions and bodies which use the licences.  The licence in Part VA is for copying of broadcasts by or for educational institutions, and that under Part VB is for copying of works by such institutions and also sound recordings and films by institutions assisting persons with print and intellectual disabilities.

Item 1 - Section 135A (definition of student )

241.      Item 1 repeals the definition of ‘student’ in s.135A as a consequence of the amendment made by Item 4.

Item 2 - Section 135C

242.      Item 2 repeals s.135C (Student of an institution) as a consequence of the amendment made by Item 4.

Item 3 - After subsection 135H(1)

243.      Item 3 inserts a new subsection (1A) after s.135H(1) to provide that either an administering body or the relevant collecting society can apply to the Copyright Tribunal for a new determination under s.135H(1) of the amount of equitable remuneration payable to the collecting society after 12 months from the day on which the current determination was made. 

244.      This amendment is intended to provide a right for the collecting society, in addition to the institution or body, to make application to the Tribunal for a new determination when the current determination is no longer considered appropriate.

Item 4 - Subsection 135J(1)

245.      Item 4 removes ‘per student of the institution concerned’ from s.135J(1) thus leaving it open to the parties to agree, or the Tribunal to decide, on the appropriate basis for the determination of the annual amount of equitable remuneration payable by an administering body to the relevant collecting society.



Item 5 - After subsection 135J(1)

246.      Item 5 inserts a new subsection (1A) after s.135J(1) to provide that either an administering body or the relevant collecting society can apply to the Copyright Tribunal for a new determination under s.135J(1) of the amount of equitable remuneration payable to the collecting society after 12 months from the day on which the current determination was made. 

247.      This amendment is intended to provide a right for the collecting society, in addition to the institution or body, to make application to the Tribunal for a new determination when the current determination is no longer considered appropriate.

Item 6 - Subsection 135J(4)

248.      Item 6 amends s.135J(4) by removing ‘and different classes of students of an institution administered by it’ as a consequence of the amendment made by Item 4.

Item 7 - Subsection 135N(2)

249.      Item 7 repeals s.135N(2) of the Act which provides that the relevant collecting society shall make a request to an institution for payment only once in a 12 month period during which a sampling notice is in force.  The repeal of s.135N(2) will ensure there is no confusion about the right of a declared collecting society to send a further request or letter of demand for payment.

Item 8 - Section 135ZB (definition of student )

250.      Item 8 repeals the definition of ‘student’ in s.135ZB as a consequence of the amendment made by Item 11.

Item 9 - Section 135ZD

251.      Item 9 repeals s.135ZD (student of an institution) as a consequence of the amendment made by Item 11.

Item 10 - After subsection 135ZV(1)

252.      Item 10 inserts a new subsection (1A) after s.135ZV(1) to provide that either an administering body or the relevant collecting society can apply to the Copyright Tribunal for a new determination under s.135ZV(1) of the amount of equitable remuneration payable to the collecting society after 12 months from the day on which the current determination was made. 

253.      This amendment is intended to provide a right for the collecting society, in addition to the institution or body, to make fresh application to the Tribunal for a new determination when the current determination is no longer considered appropriate.

Item 11 - Subsection 135ZW(1)

254.      Item 11 removes ‘per student of the institution concerned’ from s.135ZW(1) thus leaving it open to the parties to agree, or the Tribunal to decide, on the appropriate basis for the determination of the annual amount of equitable remuneration payable by an administering body to the collecting society.

Item 12 - After subsection 135ZW(1)

255.      Item 12 inserts a new subsection (1A) after s.135ZW(1) to provide that either an administering body or the relevant collecting society can apply to the Copyright Tribunal for a new determination under s.135ZW(1) of the amount of equitable remuneration payable to the collecting society after 12 months from the day on which the current determination was made. 

256.      This amendment is intended to provide a right for the collecting society, in addition to the institution or body, to make application to the Tribunal for a new determination when the current determination is no longer considered appropriate.

Item 13 - Subsection 135ZW(4)

257.      Item 6 amends s.135ZW(4) by removing ‘and different classes of students of an institution administered by it’ as a consequence of the amendment made by Item 11.

Item 14 - Subsection 135ZZA(2)

258.      Item 14 repeals s.135ZZA(2) of the Act which provides that the relevant collecting society shall make a request to an institution for payment only once in a 12 month period during which a sampling notice is in force.  The repeal of s.135ZZA(2) will ensure there is no confusion about the right of a declared collecting society to send a further request or letter of demand for payment.

Item 15 - Section 153A

259.      Item 15 corrects a drafting error by omitting ‘television’ wherever occurring in s.153A to ensure that applications can be made to the Copyright Tribunal under ss.135H or 135J(1) for determination of equitable remuneration payable for the educational copying of both radio and television transmissions.

Item 16 - Subsection 153A(2)

260.      Item 16 omits ‘per copy or per student of the relevant institution, as the case may be’ from s.153A(2) as a consequence of the amendment made by Item 4.

Item 17 - Paragraph 153A(3)(a)

261.      Item 17 omits ‘seen and heard’ and substitutes ‘heard, or seen and heard, as the case may be’ in s.153A(3)(a) as a consequence of the amendment made by Item 15.

Item 18 - Subsection 153A(5)

262.      Item 18 corrects a drafting error and makes an amendment consequential upon that made by Item 4.  It repeals s.153A(5) and inserts a replacement interpretation provision covering ‘administering body’, ‘broadcast’, ‘collecting society’ and ‘institution’, which are all to have the same meaning as in Part VA.

Item 19 - Subsection 153C(2)

263.      Item 19 omits ‘per licensed copy, or per student of the relevant institution, as the case may be,’ from s.153C(2) as a consequence of the amendment made by Item 11.

Item 20 - Subsection 153C(5)

264.      Item 20 makes an amendment consequential upon that made by Item 11, by repealing s.153C(5) and inserting a replacement interpretation provision covering ‘administering body’, ‘collecting society’, ‘institution’ and ‘licensed copy’ which are all to have the same meaning as in Part VB.



Schedule 8 - copyright tribunal

Background

265.      Schedule 8 makes a number of minor amendments to the provisions in the Act concerning the Copyright Tribunal.  The amendments are intended to enhance access to the Tribunal by parties and to improve the effective operation of the Tribunal.  In particular, provision is being made for the appointment of one or more additional Deputy Presidents and to enable the appointment of former judges of a federal court or of a State or Territory Supreme Court.

Item 1 - Subsection 136(1)

266.      Item 1 amends s.136(1) to insert a definition of ‘Deputy President’ to recognise the possibility that there may be more than one Deputy President appointed to the Tribunal.

Item 2 - Subsection 136(1) (definition of member )

267.      Item 2 amends the definition of ‘member’ in s.136(1) to replace the reference to ‘the Deputy President’ with ‘a Deputy President’ to recognise the possibility that there may be more than one Deputy President appointed to the Tribunal.

Item 3 - Subsection 136(1) (definition of party )

268.      Item 3 corrects a drafting omission by repealing the definition of ‘party’ in s.136(1) as s.148 to which the definition refers has been repealed.

Item 4 - Subsection 136(1) (definition of proceeding )

269.      Item 4 corrects a drafting omission by repealing the definition of ‘proceeding’ in s.136(1) as s.148 to which the definition refers has been repealed.

Item 5 - Subsection 136(1) (definition of the Deputy President )

270.      Item 5 amends s.136(1) to omit the definition of ‘the Deputy President’ in consequence of the amendment made by Item 1.

Item 6 - Section 138

271.      Item 6 amends s.138 of the Act to provide that the Tribunal may include more than one Deputy President.



Item 7 - Subsection 140(1)

272.      Item 7 amends s.140(1) (Qualifications of members) to omit the reference to the Deputy President so that it is only the President of the Tribunal who must be a Judge of the Federal Court.

Item 8 - After subsection 140(1)

273.      Item 8 inserts new sub-section 140(1A) in the Act to widen the scope of persons who may be appointed as a Deputy President of the Tribunal.  The new subsection provides that a Deputy President of the Tribunal may be a present or former Judge of a federal court or of the Supreme Court of a State of Territory. 

Item 9 - Subsection 140(2)

274.      Item 9 amends s.140(2) in recognition that there may be more than one Deputy President of the Tribunal.

Item 10 - Subsection 141(2)

275.      Item 10 amends s.141(2) of the Act to omit ‘or the Deputy President’ to enable a member appointed as a judge who ceases to be a judge, to be eligible for appointment as a Deputy President, as well as a non-Presidential member, of the Tribunal.

Item 11 - After section 141

276.      Item 11 inserts new s.141A to make provision in relation to seniority of Deputy Presidents of the Tribunal, in circumstances where more than one Deputy President has been appointed, and inserts an interpretive provision covering the case where there is only one Deputy President holding office.

Item 12 - Section 142

277.      Item 12 repeals the present s.142 (Acting President) and inserts a new section which provides that the Governor-General may appoint the senior available Deputy President to act as President during a vacancy in that office or any other period when the President is absent or otherwise unable to perform the functions of President.



Item 13 - Paragraph 146(4)(b)

278.      Item 13 amends s.146(4)(b) of the Act to provide that the senior Deputy President who is available shall preside at a proceeding before the Tribunal when constituted by more than one member, and when the President is not one of those members.

Item 14 - Subsection 146(5)

279.      Item 14 amends s.146(5) to provide that where the Tribunal is equally divided in opinion on a question, the question shall be decided according to the senior Deputy President who is present, where the President is not sitting as one of the members.

Item 15 - Subsection 146(8)

280.      Item 15 amends s.146(8) of the Act to recognise the possibility that there may be more than one Deputy President.

Item 16 - Subsection 167(2)

281.      Item 16 amends s.167(2) to provide that the Secretary to the Tribunal, in addition to a member, may summons a person to appear before the Tribunal to give evidence or to produce documents or articles.



schedule 9 - imported copies of copyright material

Background

282.      In December 1994, the Copyright (World Trade Organization Amendments) Act 1994 amended the Act to enable Australia to comply with its copyright obligations under the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). 

283.      Schedule 9 corrects minor errors in those amendments and makes other minor changes to the customs and border enforcement provisions of the Act.

Item 1 - Section 134B

284.      This item inserts in s.134B a new definition of ‘CEO’ as meaning the Chief Executive Officer of Customs to align the Act with current nomenclature.

Item 2 - Section 134B (definition of Comptroller-General )

285.      This item repeals the definition of Comptroller-General in s.134B in consequence of the amendment made by Item 1.

Item 3 - Section 134B

286.      This item inserts in s.134B a definition of ‘copy’ for the purposes of Division 7 of Part V of the Act.  The definition makes it clear that the references to copies of copyright material in the Division are references to the physical articles in which the copyright material is embodied.

Item 4 - Section 134B

287.      This item adds in s.134B of the Act a definition of ‘importer’ for the purposes of the Division.  This provides practical guidance to officers of Customs exercising the delegated authority of the CEO to seize copyright material.  The definition provides that importer includes a person who is, or holds themself out to be, the owner or importer of the goods comprising the copies.  This definition is not definitive.  A determination by a court that the importer of the copyright material is, at law, someone other than the person holding themself out as owning the copies is not precluded.



Items 5 (s.135), 12 (s.135AA), 13 (s.135AB), 14 (s.135AC) 20-28 (ss.135AD, 135AE, 135AF, 135AG, 135AH, 135AI(b), 135AJ(1), 135AK(a) and 195B(1).

288.      These items delete all the references to ‘Comptroller-General’ and substitute CEO in consequence of the amendment made by Item 1.

Item 6 - Subsection 135(3)

289.      This item, through an amendment to s.135(3), makes provision for a fee to be imposed by regulation for the lodging of a notice of objection.

Item 7 - Subsection 135(5)

290.      This amendment to s.135(5) is consequential upon the amendment made by Item 8.

Item 8 - After subsection 135(6)

291.      This item, in a new s.135(6A), introduces a discretion for the CEO to give notice in writing that the notice is not effective.  This discretion must be exercised on reasonable grounds and is subject to review by the Administrative Appeals Tribunal (see Item 29).

Item 9 - Paragraph 135(7)(b)

292.      This item makes an amendment consequential upon the amendment made by Item 8.

Item 10 - Subsection 135(9)

293.      This provision amends s.135(9), which contains the regulation-making power in relation to border interception, by substituting a reference to ‘Division’ for the existing reference to ‘section’.  This will correct a drafting error in the amendments to s.135 made in the Copyright (World Trade Organization) Amendment Act 1994 .

Item 11 - Subsection 135(10)

294.      This amendment to s.135(10) is consequential upon amendments in Schedule 3 inserting new s.44C and new s.112C in the Act.

Item 12 - Section 135AA

295.      See note on Item 5.

Item 13 - Section 135AB

296.      See note on Item 5.

Item 14 - Section 135AC

297.      See note on Item 5.

Item 15 - Subsection 135AC(2)

298.      This amendment to s.135AC(2), by means of repeal and substitution, is to provide for a notice under s.135AC(1) to the importer to include corresponding details of the objector or his or her nominated agent and a notice to the objector to include the name and (if known) the address of the place of business or residence of the importer.

Items 16-18 - Subsections 135AC(3) , (4), (5)

299.      These provisions make purely technical amendments in consequence of the amendment made by Item 15.

Item 19 - At the end of section 135AC

300.      This item adds new s.135AC(8).  The provision gives express statutory authority to the CEO to provide to an objector any information that the CEO has and on reasonable grounds believes would assist the objector to identify and locate the importer and the person who, on behalf of the importer, arranged for the importation of the seized copies.

Items 20-28 - Sections 135AD, 135AE, 135AF, 135AG, 135AH, 135AI(b), 135AJ(1), 135AK(a) and 195B(1)

301.      See note on Item 5.

Item 29 - After paragraph 195B(1)(b)

302.      This item provides for amendment to s.195B(1) so that a decision of the CEO to declare a notice of objection to be ineffective, provided for in the amendment made by Item 8, is included within the list of decisions reviewable by the Administrative Appeals Tribunal that is provided for in this subsection.

Item 30 - Subsection 195B(3)

303.      This item amends s.195B(3) of the Act in consequence of the changes effected by Item 1, Item 8 and Item 29.



Item 31 - Subsection 195B(8)

304.      This item inserts a new definition of ‘CEO’ for the reasons given in the note on Item 1.



schedule 10 - educational institutions

Background

305.      The definition of ‘educational institution’ in s.10(1) of the Act determines those non-profit institutions which are able to reproduce copyright works under relevant statutory licences in the Act.  There are some institutions which qualify automatically as educational institutions (eg, schools, universities), and others which are able to declare themselves under s.10A(4) of the Act.  The Attorney-General may declare other institutions meeting the requirements in paragraphs (g), (h) and (j) of the definition to be educational institutions in accordance with s.10A(1)(b) of the Act.

306.      The amendments in this Schedule will facilitate the process of declarations of institutions by widening the scope for ‘self-declaration’ by institutions. The amendments also widen the range of institutions which can use the statutory licences by removing the requirement of an institution being not for profit and by providing that pre-schools and kindergartens are educational institutions.

Item 1 - Subsection 10(1) (before paragraph (a) of the definition of educational institution )

307.      Item 1 amends the definition of ‘educational institution’ in s.10(1) of the Act be inserting a new paragraph (aa) to refer to institutions at which eduction is provided at pre-school or kindergarten standard.  These institutions will now be able to use the statutory licence for educational copying in Parts VA and VB of the Act.

Item 2 - Subsection 10(1) (paragraphs (g), (h) and (j) of the definition of educational institution )

308.      Item 2 replaces the present s.10(1)(g), (h) and (j) of the definition of ‘educational institution’ in the Act with new paragraphs (g), (h) and (i) which modify the mechanics for declarations of institutions.  The amendments replace the requirement that a declaration by the Attorney-General under s.10A(1)(b) be in force by a notice published by the body administering the institution under s.10A(4) as amended by Item 5.

309.      The functions or principal functions of the institutions covered by paragraphs (g), (h) and (j) remain unchanged, except for paragraph (g) which inserts subparagraph (iv) to include an institution where the principal function is the provision of the teaching of English to people whose first language is not English.



Item 3 - Subsection 10(1) (definition of educational institution)

310.      Item 3 amends the definition of ‘educational institution’ in s.10(1) of the Act to remove the requirement that an institution be not for profit, direct or indirect, of an individual or individuals.  This amendment recognises the reality that some educational institutions are set up for profit purposes, and should not be disadvantaged, in their dealings with copyright owners, compared to other educational institutions.  As a consequence, the amendments will widen the range of institutions that may rely on the statutory educational copying licences in Parts VA and VB of the Act.

Item 4 - Paragraph 10A(1)(b)

311.      Item 4 repeals s.10A(1)(b) of the Act, which presently provides for the Attorney-General to declare institutions meeting the requirements of paragraphs (g), (h) and (j) of the definition of ‘educational institution’ in s.10(1), because the amendments to these paragraphs provide for such institutions to self-declare under s.10A(4) of the Act as amended by Item 5.

Item 5 - After paragraph 10A(4)(a)

312.      Item 5 inserts a new paragraph (aa) in s.10A(4) to provide that the notice that a body administering an institution may cause to be published in the Gazette is to set out the principal function or functions of the institution or of an undertaking within that body.  This method of self-declaration will operate to the exclusion of declaration and notification in the Gazette by the Attorney-General.

Item 6 - After subsection 10A(5)

313.      Item 6 inserts a new s.10A(5A) to provide that a collecting society may apply to the Copyright Tribunal for a review of a declaration notice published in the Gazette by the body administering an institution.  As a result of this amendment and the amendment made by Item 7, the status of institutions declaring themselves to be educational institutions under s.10A(4) in accordance with new paragraphs (g), (h) and (i) of the definition of ‘educational institution’ in s.10(1) is subject to review by the Copyright Tribunal at the request of a relevant collecting society.

Item 7 - Before section 154

314.      Item 7 inserts new s.153L (Applications to Tribunal for review of declaration of certain educational institutions).  It concerns applications to the Tribunal under new s.10A(5A) for review of declarations made under s.10A(4) by bodies administering institutions.  New s.153L provides that the parties to the application are the applicant collecting society and the body administering the institution that published the notice containing the declaration to be reviewed.

315.      New s.153L(3) provides for the presentation of the case and the action that the Tribunal may take, while new s.153L(5) confines the Tribunal’s power to set aside the notice to circumstances in which it finds that the declaration of the institution’s principal function or functions is not well founded.  In the event that the Tribunal sets aside the notice it is required to publish a notice to this effect in the Gazette and the original notice published by the educational institution then has no effect (s.153L(4)).

Item 8 - Saving

316.      Item 8 is a savings provision which continues the operation of declarations of educational institutions under paragraphs (g), (h) and (j) made by the Attorney-General under the present s.10A(1)(b) prior to the coming into effect of the new declaration arrangements.



schedule 11 - minor amendments

Background

317.      This Schedule contains a number of amendments to that are consequential upon the amendments being made to the other Schedules.  Other amendments correct some minor drafting inconsistencies or errors in a number of provisions in the Act.

Items 1 and 2 - Section 10(1), at the end of Section 10

318.      Items 1 and 2 provide for a new definition for ‘licence in force under the Broadcasting Services Act 1992’ .  Item 1 inserts into s.10(1) a provision that notes that the meaning of the phrase ‘licence in force under the Broadcasting Services Act 1992 ’ is affected by new s.10(5). 

319.      Item 2 inserts new s.10(5).  New s.10(5) provides that a licence in force under the Broadcasting Services Act 1992 includes radio and television licences granted under the Broadcasting Act 1942 that, under s.5(1) of the Broadcasting Services (Transitional Provisions) Act 1992, continue in force as if they had been allocated under the Broadcasting Services Act 1992. 

Item 3 - Section 44A

320.      Item 3 amends s.44A of the Act to insert ‘(1)’ after ‘37’ wherever occurring.  This is consequential upon the amendment to s.37 in Item 5 of Schedule 3 which adds a new subsection (2).

Item 4 - Division 5 of Part III (heading)

321.      Item 4 substitutes a new heading for Division 5 of Part III of the Act to refer to libraries ‘or archives’, given that the relevant provisions in the Division apply to copying by both libraries and archives.  A similar amendment is made to the heading to s.52 of the Act.

Items 5, 6 and 7 - Paragraphs 91(a), (b) and (d)

322.      Section 91 currently provides for subsistence of copyright in television and sound broadcasts and refers to licences or permits granted under the Broadcasting Act 1942 .  The Broadcasting Act 1942 has now been superseded by the Broadcasting Services Act 1992 .  Items 5, 6 and 7 repeal s.91(b) and (d) and substitute new paragraphs which refer to licences in force under the Broadcasting Services Act 1992 .  Similar amendments are made in other items in this Schedule to update references to the Broadcasting Services Act 1992

323.      Items 6 and 7 also delete references in s.91(b) and (d) to ‘permits’ in relation to the references to licences under the Broadcasting Services Act 1992 as there is no provision for permits under the Broadcasting Services Act 1992 .  Similar amendments are made in other items in this Schedule to delete references to ‘permits’. 

324.      No subscription broadcasting licences have been granted under the Broadcasting Act 1942 and, accordingly, copyright does not currently subsist in subscription broadcasts under s.91(b) and (d).  Although under the Broadcasting Services Act 1992 subscription licences can be granted for both wireless and cable broadcasting, s.10(1) defines ‘broadcast’ to mean ‘transmit by wireless telegraphy to the public’, and the amendments made by Items 6 and 7 preserve the current operation of s.91(b) and (d) by expressly confining broadcast copyright to free-to-air broadcasts. 

Item 8 - After section 91

325.      Currently, s.91(a)(iii) and (c)(iii) provide that copyright subsists in a broadcast made from a place in Australia by a prescribed person under the Radiocommunications Act 1992 .  Regulations under the Copyright Act have prescribed providers of subscription broadcasts for the purposes of s.91. 

326.      It is possible for a broadcaster to have a licence under the Radiocommunications Act 1992 and the Broadcasting Services Act 1992.  Item 8 inserts new s.91A which provides that copyright may subsist in a subscription broadcast under s. 91(a)(iii) or (c)(iii) even though copyright does not subsist in such a broadcast under s. 91(b) or (d).  In effect, new s.91A preserves the subsistence of copyright in subscription broadcasts as currently provided for in s.91(a)(iii) and (c)(iii). 

Item 9 - Paragraph 99(b)

327.      Item 9 updates s.99(b) to refer to a licence in force under the Broadcasting Services Act 1992

Item 10 - Section 109

328.      Item 10 amends s.109 to provide that the statutory licence in relation to the broadcasting of published sound recordings does not apply to subscription broadcasting.



Item 11 - Section 112A

329.      Item 11 amends s.112A of the Act to insert  ‘(1)’ after ‘102’ wherever occurring.  This is consequential upon the amendment to s.102 in Item 9 of Schedule 3 which adds a new subsection (2).

Items 12 (s.132(3)), 13 (s.133(4)), 14 (s.134) and 51 (s.202(5))

330.      Items 12, 13, 14 and 51 omit ‘plate’ and substitute ‘device’ in ss.132(3), 133(4), 134 and 202(5) respectively.  These amendments are consequential upon the amendment made by Item 1 in Schedule 4.

Item 13 - Subsection 133(4)

331.      See notes to Item 12.

Item 14 - Section 134

332.      See notes to Item 12.

Item 15 - Part VA (heading)

333.      Item 15 omits ‘broadcasts’ from the heading to Part VA of the Act and substitutes ‘transmissions’.  This is a consequential change upon the amendments in Items 16 and 18 to s.135A of the Act.

Item 16 - Section 135A (definition of broadcast )

334.      Item 16 repeals the definition of ‘broadcast’ in s.135A as the term will no longer be used in Part VA of the Act.  This is a consequential change upon the amendment in Item 18 which inserts a definition of ‘transmission’ in place of ‘broadcast’.

Item 17 - Section 135A (definition of preview copy )

335.      Item 17 omits ‘broadcast’ in the definition of ‘preview copy’ in s.135A and substitutes ‘transmission’.  This is a consequential amendment as a result of the amendment in Item 18 which introduces the term ‘transmission’ in Part VA of the Act.



Item 18 - Section 135A

336.      Item 18 inserts a definition of ‘transmission’ in s.135A in Part VA of the Act. The term will cover sound or television broadcasts (including those transmitted for a fee) and transmissions to subscribers to a diffusion service (other than a transmission of a sound recording or a transmission that does not constitute an infringement because of s.199(4) of the Act).

337.      The introduction of the term ‘transmission’ into the statutory licence in Part VA will ensure that where educational programs are transmitted by a diffusion service, the declared collecting society may collect equitable remuneration on behalf of their members in relation to their right to cause their works and films to be transmitted to subscribers to a diffusion service.  As there is no equivalent exclusive right in relation to sound recordings, they are excluded from this extension of the licence.  This is also the case with a transmission that does not constitute an infringement of copyright because of s.199(4) of the Act, that is, re-transmissions of broadcast programs.

Items 19 (s.135B), 21 (s.135E), 22 (s.135F), 24 (s.135H(1)), 27 (s.135J(5)), 28 (s.135K), 32 (s.135U), 35 (s.135Z) and 36 (s.135ZA)

338.      Items 19, 21, 22, 24, 27, 28, 32, 35 and 36 omit the term ‘broadcast’ and substitute ‘transmission’ wherever occurring in the relevant provisions in the Act.  These amendments are consequential upon the amendment to s.135A in Item 18 which inserts a definition of ‘transmission’ in place of ‘broadcast’ in Part VA of the Act.

Items 20 (Division 2 of Part VA (heading)), 23 (s.135G(1)), 25 (s.135H(2)(a)), 26 (s.135J), 29 (s.135L(1)), 30 (s.135N(1)), 33 (s.135V) and 34 (s.135W(1))

339.      Items 20, 23, 25, 26, 29, 30, 33 and 34  omit the term ‘broadcasts’ and substitute ‘transmissions’ wherever occurring in the relevant provisions in the Act.  These amendments are consequential upon the amendment to s.135A in Item 18 which inserts a definition of ‘transmission’ in place of ‘broadcast’ in Part VA of the Act.

Item 21 - Section 135E

340.      See notes at Item 19.

Item 22 - Section 135F

341.      See notes at Item 19.

Item 23 - Subsection 135G(1)

342.      See notes at Item 20.

Item 24 - Subsection 135H(1)

343.      See notes at Item 19.

Item 25 - Paragraph 135H(2)(a)

344.      See notes at Item 20.

Item 26 - Section 135J

345.      See notes at Item 20.

Item 27 - Subsection 135J(5)

346.      See notes at Item 19.

Item 28 -Section 135K

347.      See notes at Item 19.

Item 29 - Subsection 135L(1)

348.      See notes at Item 20.

Item 30 - Subsection 135N(1)

349.      See notes at Item 20.

Item 31 - Subparagraph 135P(3)(d)(i)

350.      Item 31 omits ‘administrative’ and substitutes ‘administering’ instead in s.135P(3)(d)(i) to correct a minor drafting error.

Item 32 - Section 135U

351.      See notes at Item 19.

Item 33 - Section 135V

352.      See notes at Item 20.

Item 34 - Subsection 135W(1)

353.      See notes at Item 20.

Item 35 - Section 135Z

354.      See notes at Item 19.

Item 36 - Section 135ZA

355.      See notes at Item 19.

Item 37 - Subsection 135ZZB(3)

356.      Item 37 omits ‘a collecting society’ and substitutes ‘the collecting society’ wherever occurring in s.135ZZB(3) to correct a minor drafting error.

Item 38 - Subsection 146(3)

357.      Item 38 repeals the present s.146(3) of the Act, in relation to sittings of the Copyright Tribunal, and inserts new subsection (3) which provide for circumstances where a party to an application requests that the Tribunal be constituted by more than one member.  If that is the case, one of the members must be the President or a Deputy President.  Item 38 re-enacts the substance of present s.146(3) and is consequential upon the amendments in Schedule 8, which provide for the possibility of the appointment of more than one Deputy President and upon the earlier repeal of s.148.

358.      Item 38 also inserts a new subsection (3A) which provides that a single member of the Tribunal may exercise the powers of the Tribunal in relation to matters of procedure, and which also re-enacts the substance of part of present s.146(3).

Item 39 - Division 3 of Part VI (heading)

359.      Item 39 amends the heading to Division 3 of Part VI to refer to “Applications and references to the Tribunal’ in consequence of the earlier repeal of s.148.

Items 40 (Paragraph 152(1) (Paragraph (b) of the definition of broadcaster )), 42 (Subsection 152(8)) and 43 (Subsection 152(9))

360.      Items 40, 42 and 43 update s.152(1), (8) and (9) so that they refer to broadcasters with a licence in force under the Broadcasting Services Act 1992 .



Item 41 - Subsection 152(1)

361.      Item 41 inserts a new definition of ‘broadcasting’ in s.152(1) which has the effect that applications to the Copyright Tribunal for the determination of amounts payable for broadcasting of published sound recordings do not apply to subscription broadcasts. 

Item 42

362.      See notes on Item 40.

Item 43

363.      See notes on Item 40.

Item 44 - Subsection 161(9)

364.      Item 44 repeals s.161(9) of the Act because it is no longer necessary as s.148 has been repealed.

Item 45 - Paragraph 166(2)(a)

365.      Item 45 amends s.166(2)(a) of the Act by omitting ‘an intended inquiry by the Tribunal under section 148 or’ because s.148 has been repealed.

Item 46 - Subsection 174(3)

366.      Item 46 repeals s.174(3) because it is no longer necessary as s.148 of the Act has been repealed.

Item 47 - Paragraph 184(1)(f)

367.      Item 47 updates s.184(1)(f) so that it refers to a licence in force under the Broadcasting Services Act 1992.

Item 48 - Subsection 195A(5)

368       Item 48 repeals s.195A(5) as it is no longer necessary.

Items 49 and 50 - Paragraphs 199(7)(a) and (b)

369.      Items 49 and 50 update s.199(7)(a) and (b) so that they refer to a licence in force under the Broadcasting Services Act 1992. 



Item 51 - Subsection 202(5)

370.      See notes to Item 12.

Item 52 - Subsection 248A(1) (definition of performance )

371.      Item 52 inserts ‘given’ after ‘Australia or’ in the definition of ‘performance’ in s.248A(1) as a clarifying drafting amendment.