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Copyright Amendment (Digital Agenda) Bill 2000

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1998-1999-2000

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

COPYRIGHT AMENDMENT (DIGITAL AGENDA) BILL 2000

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

 the Honourable Daryl Williams AM QC MP)

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED



COPYRIGHT AMENDMENT (DIGITAL AGENDA) BILL 2000

OUTLINE

The Copyright Amendment (Digital Agenda) Bill 2000 is part of the Government’s strategic framework for the development of the information economy in Australia.  It forms the Government’s main initiative in addressing the challenges for copyright posed by rapid developments in communications technologies.  The reforms implemented in the Bill are an important part of establishing a legal framework to encourage online activity and the growth of the information economy.

Digital technology and the growth of computer networks, particularly the Internet, have posed challenges to the protection and enforcement of copyright throughout the world.  Creators and owners of copyright material are concerned that they do not have effective means of redress or remuneration in relation to use of their copyright material on the Internet.  The existing protection for owners under the Copyright Act 1968 includes technology-specific transmission rights. 

Users of copyright material, such as libraries, archives and educational institutions, are concerned about being able to obtain reasonable access to copyright material available on the Internet.  Carriers and carriage service providers (including Internet Service Providers or ISPs) are concerned that they face uncertain and unreasonable liability for copyright infringements on their facilities. 

The central aim of the reforms in the Bill is to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material on the Internet and through new communications technologies. 

The reforms are based largely on the proposals in the Discussion Paper, Copyright Reform and the Digital Agenda , which was released in July 1997.  The proposals in the Discussion Paper built upon the recommendations made in the 1994 report of the Copyright Convergence Group, which, amongst other things, recommended the introduction of a broadly based right of transmission to the public. 

The proposals are consistent with new international standards to improve copyright protection in the online environment adopted in the 1996 World Intellectual Property Organisation (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty.  Australia participated in the Diplomatic Conference in December 1996 that agreed to the new WIPO treaties.  The enactment of the Bill will be a major step towards aligning Australia’s copyright laws with the obligations prescribed by the new WIPO treaties.

The centrepiece of the Bill is a new technology-neutral right of communication to the public.  The new right will replace and extend the existing technology-specific broadcasting right which currently only applies to “wireless” broadcasts.  Further, the new right will replace the limited right to transmit to subscribers to a diffusion service.  The new right of communication to the public also encompasses the making available of copyright material online.

The Bill includes an important package of exceptions to the new right of communication to the public, and the creation of new exceptions in relation to existing rights.  As far as possible, the exceptions replicate the balance struck between the rights of owners and the rights of users that has applied in the print environment.  The Bill extends the existing statutory licence schemes for educational institutions to permit these institutions to make electronic copies of works and broadcasts, and to communicate them to students for educational purposes, subject to the payment of remuneration to the copyright owners.  The Bill also implements a new statutory licence scheme to allow the retransmission of free-to-air broadcasts without the permission of copyright owners subject to the payment of equitable remuneration by the retransmitter to the underlying rights holders.

Enforcing copyright in the digital environment is a major concern for copyright owners as there is little or no cost associated with the transmission of multiple infringing copies of copyright material using digital technology.  In response to the problem of enforcement, the Bill introduces new measures to provide effective remedies against the abuse of technological copyright protection measures, the deliberate tampering with rights management information and unauthorised access to encoded broadcasts.

Telecommunications carriers and carriage service providers (including ISPs) play a key role in the online delivery of content and the operation of the information economy.   To encourage continued investment in these crucial new online businesses, the Bill provides greater certainty about the responsibilities of carriers and ISPs to copyright owners and the steps they need to take to avoid infringing copyright. 

The Bill also includes amendments to adopt some outstanding recommendations contained in the Copyright Law Review Committee’s 1995 report, Computer Software Protection to fine-tune the existing protection of computer software.

FINANCIAL IMPACT STATEMENT

The proposed amendments are expected to have minimal direct impact on Commonwealth expenditure or revenue.  However, the amendments introducing a new right of communication may result in higher annual payments by the Commonwealth than at present to owners of copyright in works and other subject-matter under the Government statutory licence.



REGULATION IMPACT STATEMENT

The following information is provided in accordance with the Guidelines issued by the Office of Regulation Review, Productivity Commission.

1.    Identifying the problem

1.1   What is the problem being addressed?

Digital technology and the growth of computer networks, particularly the Internet, have posed many challenges to the protection and enforcement of copyright throughout the world.  Creators and owners of copyright material are concerned to be able to protect their intellectual property on the Internet.  Users of copyright material, such as libraries, archives and educational institutions, are also concerned about being able to obtain reasonable access to copyright material in the online environment. 

The development of new communications technologies has exposed gaps in the protection afforded by the Copyright Act 1968 (the Copyright Act).  Currently, owners of copyright have limited technology-specific transmission rights.  For example, the right to broadcast extends only to “wireless” broadcasts and the existing cable diffusion right does not apply to sound recordings and broadcasts.  This has become a major gap in protection with the advent of cable pay TV in Australia.  Also, owners of copyright do not have fully effective rights in relation to the Internet, thus making it difficult for them to obtain appropriate redress or remuneration for use of their material on the Internet. 

The Coalition’s election policy statements recognised the need for copyright reform and supported the need for new online rights in the Copyright Act (Australia Online and For Art’s Sake - A Fair Go!) .  The proposals for copyright reform are an important part of fulfilling the Government’s commitment to facilitating the growth of the information economy. 

The need for copyright reform with respect to third-party distributors online, ie, carriers and carriage service providers (including Internet service providers (ISPs), was highlighted by the 1997 High Court decision in APRA v Telstra .  In light of this case, carriers and carriage service providers including ISPs have expressed concerns that they face a considerable, uncertain and unreasonable degree of liability in relation to copyright infringements carried out on facilities provided by the carriers and carriage service providers.  Given the important role that ISPs in particular play in facilitating access by Australians to online services and electronic commerce, legislation providing for liability for copyright infringements in the online environment ought to be clearly defined and fairly applied. 

The need for copyright reform has also been recognised internationally with the finalisation in 1996 of two new World Intellectual Property Organisation (WIPO) treaties, namely, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty .  These new WIPO treaties update international copyright standards and introduce new standards to improve protection for copyright material in the digital environment. 

The reasons for copyright reform were set out in the Discussion Paper, Copyright Reform and the Digital Agenda (1997) and the materials that accompanied the exposure draft of the Copyright Amendment (Digital Agenda) Bill 1999 .  Both documents invited comment from the community on proposals to overcome the current gaps in copyright protection (see further under “Consultation”). 

1.2   Why is Government action needed to correct the problem?

The pace of technological change in communications technology has increasingly led to deficiencies in the extent of protection for copyright material under the Copyright Act.  Amendments to the Act are needed to introduce new rights for owners of copyright and to remedy the gaps in the current protection of copyright material in the online environment.  Amendments to the Act are also required to provide appropriate exceptions for users of copyright material. 

2.    What are the objectives of Government action?

2.1   Objectives

The objectives of Government action to amend the Copyright Act in this matter are as follows:

To improve the protection for owners of copyright in relation to the use of their copyright material on the Internet and through other new communications technologies, such as pay-TV, in order to reward creative endeavour and encourage further creative endeavours;

To fashion the improved copyright protection in the online environment so as to facilitate the growth of the information economy;

To ensure that users of copyright material, particularly libraries, archives and educational institutions, have reasonable access to copyright material in the online environment;

To replace technology-specific rights with technology-neutral rights so that amendments to the Act are not needed each time there is a development in technology;

To ensure that copyright laws do not jeopardise the underlying technical processes that are integral to the operation of the Internet such as certain kinds of caching;

To ensure that copyright law provides carriers and carriage service providers (including ISPs) with reasonable certainty about liability for infringements that occur on their facilities or infrastructure; and

To ensure that the proposed reforms are consistent with the new international obligations in the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty in relation to the digital agenda .

2.2   Is there a regulatory regime in place and who administers it?

The Attorney-General’s Department administers the Copyright Act.  It confers intangible personal property rights on owners of copyright.  The Act provides for certain exclusive rights in relation to certain subject-matter including literary, artistic, dramatic and musical works, sound recordings, films, broadcasts and published editions.  Generally, owners of copyright are free to exercise these private rights as they see fit.  The Act also provides exceptions to these rights for fair dealing (eg, for research or study), libraries, archives and educational institutions. 

3.    Options

3.1   Which regulatory and non-regulatory options for dealing with the problem are being considered?

There are two broad options under consideration as follows:

Option 1:  a package of major amendments to the Copyright Act to improve copyright protection in the online environment; and

Option 2:  no specific action to amend the Act. 

Option 1:  Package of amendments to Copyright Act

The “regulatory” option being considered is a package of major amendments to the Copyright Act.  The term “regulatory” is used here in a broad sense to refer to any law which influences the way that people behave.  These amendments include a new right of communication to the public which would replace and extend the existing wireless broadcasting right and the limited cable diffusion right. 

The amendments also include appropriate exceptions to the new right to ensure that users of copyright material, including libraries, archives and educational institutions, have reasonable access to copyright material in the online environment. 

Other amendments include civil remedies and criminal sanctions against the manufacture and dealing in devices for the circumvention of technological copyright protection measures and the intentional abuse of rights management information electronically attached to copyright material.  The amendments also include civil remedies and criminal sanctions against the manufacture and dealing in broadcast decoding devices for the unauthorised reception of encoded subscription broadcasts.

These amendments would improve the protection of copyright material on the Internet and the new communications networks, including pay TV, and thus facilitate the growth of the information economy. 

Within Option 1 the two separate issues of (i) the liability of carriers and carriage service providers (including ISPs) for infringements on their facilities and (ii) the issue of the retransmission of free-to-air broadcasts have required the consideration of several options as discussed below. 

Options for the liability of carriers and carriage service providers (including ISPs)

Currently, the Act provides that copyright can be infringed in two broad ways: by (i) directly exercising a copyright right without the owner’s permission and (ii)  authorising a person to infringe copyright. 

It is proposed that the person who is responsible for determining the content of a communication to the public is the person who directly exercises the right over that activity.  This would mean that carriers and carriage service providers (including ISPs) who are not responsible for determining the content of the transmission would not be directly liable for those transmissions.

Options A, B and C

In relation to liability for authorising copyright infringements, there are three options as follows:

Option A:  no change to the Act, with the result that the issue of authorisation is left to be determined by case law;

Option B:  codify in the Act the principles set out in the authorisation case law;

Option C:  codify in the Act the principles set out in the authorisation case law and introduce a limitation on liability for authorisation for carriers and carriage service providers (including ISPs).

Under Option A the liability of carriers and carriage service providers for authorising infringements on their networks would be left to be determined by the application of authorisation case law as proposed in the Discussion Paper.  This option is welcomed by owners of copyright.

ISPs and users of copyright material opposed this approach in the Discussion Paper and sought legislative certainty about the steps they needed to take to avoid liability for authorising infringements.  Accordingly, under Option B the Act would be amended to provide an inclusive list of factors which would determine whether a person authorises the doing of any act comprised in the copyright.  The key factors would be: the level of control that a person has to prevent the infringement with reference to the nature of the acts complained of; the relationship between the alleged “authoriser” and the actual infringer; and whether the alleged “authoriser” took reasonable steps to avoid infringing acts of copyright. 

Option C builds on the proposal in Option B to amend the Act and includes a proposal to limit liability for authorisation by carriers and carriage service providers (including ISPs).  The 1996 WIPO Diplomatic Conference adopted a position that the mere provision of physical facilities does not amount to the exercise of the right of communication to the public.  In Option C it is proposed that this policy should be effectively incorporated into the Act so that carriers and carriage service providers (including ISPs) would not be liable for authorising infringements that occur on their networks, including on web sites hosted on their servers but operated independently of the ISP, by reason only of the fact that the infringements occurred on the  facilities provided by the carrier or carriage service provider (including ISPs).

Options for compensation for retransmission of free-to-air broadcasts

The Government has made an in-principle decision to ensure that retransmitters of free-to-air broadcasts compensate underlying rights holders in copyright material included in free-to-air broadcasts for the retransmission of those broadcasts.  Currently, under the Copyright Act, retransmitters such as cable pay TV operators are not required to compensate underlying copyright owners in broadcasts for the retransmission of those broadcasts.

Option D

Two options to implement this in-principle decision have been considered.  The first option that has been considered (Option D) is to provide a statutory licence to retransmitters for the retransmission of free-to-air broadcasts without the permission of the owner of copyright in the underlying material in the broadcasts.  Under Option D, retransmitters would be required to pay owners of underlying material in broadcasts for the retransmission of those broadcasts.  In the absence of agreement between the retransmitter and the collecting society representing the interests of owners of the copyright in the underlying material, the Copyright Tribunal would have jurisdiction to determine the remuneration payable by the retransmitter. 

Option E

The other option that has been canvassed (Option E) is to grant exclusive rights to underlying rights holders.  Under Option E, retransmitters would have to negotiate with collecting societies representing underlying rights holders or individual underlying rights holders before retransmitters could retransmit those broadcasts. 

Option 2:  No specific legislative action

A second option of taking no specific action to amend the Act with regard to developments in the online environment has also been canvassed.  This would retain the current copyright protection provided by the Act but would not address the gaps in copyright protection that have been exposed as a result of developments in technology such as the Internet and pay TV.  Copyright protection in the online environment would have to be provided by contract.

3.2.1        Identify broad constraints which make some options not viable

The option of making no amendments to the Act and relying on contractual means to provide protection in the online environment is not an acceptable option. 

Owners and users of copyright would have uncertain and uneven control over and access to copyright material online.  In some instances copyright owners would have inadequate control.  For example, sound recording copyright owners would be unable to stop, or obtain remuneration for, the playing of sound recordings on the Internet.  In other circumstances users of copyright material would face possible inconvenient copyright control over their most fundamental operations.  For example, ISPs might find themselves liable for authorising copyright infringements by doing no more than providing facilities for persons transmitting copyright material without permission of the copyright owners. 

Australia participated in the WIPO Diplomatic Conference that agreed to the two new treaties in December 1996 and welcomed the finalisation of the new international standards for copyright protection in the online environment.  Already the two treaties have attracted wide international support, having been signed by 57 countries including the USA, EU countries, Japan and Canada.  Australia is unable to accede to these treaties unless the Copyright Act is amended to implement the package of standards in the new treaties including a new right of communication to the public, exceptions, remedies against the defeat of technological protection measures and remedies against the abuse of rights management information. 

4.    Impact Analysis of Option 1

4.1   Who is affected by the problem and the solution?

The affected groups are as follows:

·                Owners of copyright

·                Users of copyright material

·                Carriers and carriage service providers (including ISPs)

·                Business

·                Government

·                Retransmitters of free-to-air broadcasts (including pay TV operators)

4.2   How are they affected?

4.2.1        Costs

Owners of copyright would bear the costs of monitoring compliance with their new rights and taking civil actions to enforce those rights.  Owners would also bear the costs of the proposed exceptions to the proposed new right of communication to the public.  In the case of fair dealing exceptions for libraries and archives, copyright owners would receive no remuneration for these uses of their copyright material.  In relation to the proposed statutory licence for educational institutions, copyright owners would bear the cost of their exclusive intellectual property rights being reduced to a right to remuneration.  Owners of copyright would bear the cost of collecting and distributing remuneration under the new licences. 

Users of copyright, namely libraries and archives, would bear the cost of complying with proposed exceptions in order to exercise the rights of owners of copyright without their permission.  Under the proposed exception for libraries, if a library obtains copyright material in digital format (eg, purchases it in that format) the permission of the copyright owner would not be necessary for the library to make it available online to users onsite by making an electronic reproduction or communication of the material.  Educational institutions would bear the cost of remunerating copyright owners under the new statutory licence for educational institutions if they exercise certain copyright rights in the online environment without the permission of the owner of copyright.

Under Options A, B and C, carriers and carriage service providers (including ISPs) would bear the cost of becoming aware of any new laws relating to liability for authorisation of breaches of copyright.  They would also bear the cost of taking any relevant measures to avoid liability.  However, the costs and uncertainty to carriers and carriage service providers (including ISPs) under Options A and B would probably be higher than under Option C. 

Business would bear the cost of making itself aware of the new copyright framework.  It would also bear the cost of paying for copyright material that may currently be available for free. 

Government would bear the direct cost of implementing the legislation.  This would include investigation and prosecution of the new offences and the indirect costs of using certain copyright material. 

Both options proposed in relation to implementing the Government’s in-principle decision would lead to new costs for retransmitters of free-to-air broadcasts as they would be required to pay copyright owners in underlying works in broadcasts for the retransmission of those broadcasts.  The costs to retransmitters under Option E could be higher than the costs under Option D, as under Option E, owners of underlying copyright material in broadcasts might not allow the retransmission of those broadcasts. 

4.2.2        Benefits

Owners of copyright would benefit from amendments to the Act which would improve their rights in the online environment and provide new measures to assist enforcement such as the remedies against the abuse of technological measures and rights management information.  The new right of communication to the public would provide owners of copyright with more effective protection in relation to the new and expanding means of commercial exploitation of copyright material, particularly online delivery.  Under either Option D or E, the payment by retransmitters of compensation to underlying rights holders in broadcasts for the retransmission of those broadcasts would benefit copyright owners as they would be compensated for the use of their intellectual property which is currently used for free. 

Users would benefit from amendments to the Act which would ensure reasonable access to copyright material in the online environment.  The exceptions provisions would ensure that individual users of copyright material and institutional users of copyright material, such as libraries, archives and educational institutions, have appropriate access to copyright material in the online environment.

Carriers and carriage service providers (including ISPs) would benefit from the limitation on their liability for the authorisation of copyright breaches, and the resulting increased certainty in the industry about liability for copyright infringements on their facilities or network infrastructure.  In this respect, carriers and carriage service providers (including ISPs) would gain greater benefit under Option C than under Options A and B.  The proposal in Option C is consistent with the statement agreed to at the WIPO Diplomatic Conference, ie, the mere provision of facilities for enabling or making a communication does not in itself amount to a communication which is a copyright right under the new WIPO treaties and the Berne Convention. 

Many businesses that are owners or creators of copyright material (such as publishers, sound recording producers, bands, film makers, software and multimedia producers) would benefit from the increased copyright payments that they would receive for the use of their copyright material in the online environment. 

Amendments to the Copyright Act to improve copyright protection in the online environment would assist in fulfilling the Government’s policy commitments to encourage the growth of the information economy.  The amendments would also be an essential step towards Australian accession to the new WIPO treaties.  Australian membership of the treaties would put Australia on equal terms with its main trading partners in intellectual property and also guarantee protection under the treaties for Australian copyrights in those countries, once the treaties come into force. 

4.4   Restrictions on competition

These recommendations balance the interests of copyright owners and copyright users.  Copyright users will have more rights in the online environment than they do at present, consistent with the Government’s objectives to improve copyright protection in the online environment, to reward and encourage creative endeavour and to facilitate the growth of the information economy.  The benefits of the proposed amendments to owners of copyright and the community generally outweigh the disadvantage of possibly increasing the costs of using copyright material in the communications networks and the Internet.  The proposed amendments to improve copyright protection are balanced by important exceptions which will give users and consumers of copyright material the ability to access copyright material for free in a number of circumstances. 

5.    Consultation

5.1   What was the nature of the consultation process?

The Discussion Paper Copyright Reform and the Digital Agenda (the Discussion Paper) was jointly released by the Attorney-General’s Department and the then Department of Communications and the Arts in July 1997.  It proposed a new transmission right, a new right of making available online, exceptions to these rights and new enforcement measures.  The Discussion Paper invited public comment on these proposals to reform copyright law to meet the challenges posed by new technologies including cable pay TV and the Internet. 

In response to the Discussion Paper, 71 submissions were received from a large variety of stakeholders including copyright industry associations, copyright collecting societies, educational institutions, libraries, archives, carriers, broadcasters, ISPs, academics and others. 

Submissions were received from educational institutions including the Australian Vice Chancellors’ Committee (AVCC), the Ministerial Council on Education, Employment and Youth Affairs (MCEETYA), and the University of Melbourne.  Submissions were also received from libraries and archives, including the National Library of Australia, the Australian Council of Libraries and Information Services (ACLIS), the Council of Australian University Libraries (CAUL), the Australian Archives and the National Film and Sound Archive.  ISPs and Internet associations made submissions, including OzEmail and the Internet Industry Association (IIA). 

Bodies representing copyright owners that made submissions included the Australian Copyright Council (ACC), the Australian Record Industry Association (ARIA), the Phonographic Performance Company of Australia Ltd (PPCA), Australasian Performing Right Association (APRA), and the Business Software Alliance (BSA). 

Submissions were received from broadcasters, including the Federation of Australian Commercial Television Stations (FACTS), the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service (SBS), Australian Subscription Television and Radio Association (ASTRA), and Foxtel. 

The Attorney-General’s Department and the Department of Communications and the Arts also conducted about 13 face-to-face consultation forums in 1997.  The parties consulted included copyright collecting societies, libraries, archives, educational bodies, broadcasters, Internet Service providers and academics.

On 30 April 1998, the Government announced its decision to implement the reforms proposed in the Discussion Paper, with the exception of the proposed transmission right and right of making available online.  Instead, the Government decided to fuse these rights and implement a broad right of communication to the public.

An exposure draft of the Copyright Amendment (Digital Agenda) Bill 1999  that implemented the Government’s decision was released for public comment on 26 February 1999.  Affected interests were invited to provide written submissions on the draft legislation.  Copies of the draft Bill and commentary were available on the Attorney-General’s Department’s website and the Department of Communications, Information Technology and the Arts’ website. 

Over 80 submissions were received and numerous meetings were held with affected interests.  Similar interests to those who responded to the Discussion Paper also provided responses on the exposure draft of the Bill.

The Copyright Amendment (Digital Agenda) Bill 1999 was introduced into the House of Representatives on 2 September 1999 and referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs (the LACA Committee) for inquiry and report.  The LACA Committee received some 100 written submissions on the Bill in addition to undertaking a number of public hearings.  Following the tabling of the Committee’s report in December 1999, the Government carefully considered the recommendations and, in some instances, undertook further consultation on certain aspects of the Bill. 

The Bill was passed by the House of Representatives on the evening of 28 June 2000.  The Government and Opposition moved amendments to the Bill to implement a number of the recommendations of the LACA Committee.

5.2   Who are the main affected parties?

There are three broad categories of affected parties.  They are owners of copyright; users of copyright, including individual users and consumers, libraries, archives and educational institutions; and carriers and carriage service providers (including ISPs). 

5.3   What are the views of those parties?

In general, the proposals in the Discussion Paper were very favourably received by both owners of copyright and users of copyright and many submissions supported Australia becoming a party to the new WIPO treaties. 

Owners of copyright are generally very supportive of the proposed new rights to improve copyright protection in the online environment.  Owners of copyright oppose specific exceptions for ISPs from liability for copyright infringements that occur on the  facilities provided by ISPs.  Rather, owners of copyright favour the issue of liability of ISPs being determined by existing case law on authorisation of copyright infringements.  Owners of copyright are generally supportive of the proposed remedies against the abuse of technological measures that will increase the control that owners have over the use of their material.

On the whole, users of copyright welcomed the proposals in the Discussion Paper, particularly the proposed exceptions for the temporary copies made in the course of the technical electronic process of making or receiving a communication.  Users of copyright also strongly supported the application of fair dealing exceptions to the proposed new rights.  Users of copyright were also concerned about the impact of the technological measures proposals on the operation of the fair dealing provisions. 

Carriers and ISPs broadly supported the proposals in the Discussion Paper.  However, both carriers and ISPs suggested that the Copyright Act should be amended to clarify the steps that carriers and ISPs would need to take in order to avoid liability for copyright infringements that occur on the facilities provided by carriers and ISPs. 

In relation to the exposure draft of the Bill, the Government received a mixed response.  All interests were generally supportive of the introduction of a new technology-neutral right of communication to the public.  Copyright users were generally of the view that the appropriate balance between copyright owners and users had been achieved.  Some copyright owners, however, expressed concern in relation to a number of areas in the exposure draft.  In particular, they focussed on the operation and scope of the exceptions and the enforceability of the technological protection measure provisions.

6.    Conclusion: What is the best option?

Option 1 to amend the Copyright Act as outlined above is the best option as it would ensure improved protection for copyright material in the online environment while providing appropriate exceptions for users.  With regard to carriers and carriage service providers (including ISPs), Option C is the preferred option as it would give carriers and carriage service providers (including ISPs) more certainty about how to avoid liability for authorising infringements than that provided by either Options A or B.  With regard to the options for the retransmission of broadcasts, Option D is the preferred option because it would be impractical for retransmitters to negotiate with individual copyright owners in underlying copyright material to enable the retransmission of free-to-air broadcasts.

7.     Implementation and review

The preferred option should be implemented by way of amendments to the Copyright Act.

The Government proposes to review the operation of the amendments within 3 years of the commencement of the legislation.



NOTES ON CLAUSES

Clause 1.  Short title

This clause is a formal provision that provides for the Bill, when enacted, to be cited as the Copyright Amendment (Digital Agenda) Act 2000 .

Clause 2.  Commencement

2.      This clause provides that the Bill, when enacted, will come into operation on a day to be fixed by Proclamation.  Subclause (2) provides a default commencement date.  If the Act has not commenced within 6 months of the date that it receives the Royal Assent, it will commence on the first day after that period under subclause (2).

Clause 3.  Object of the Act

3.      This clause sets out the object of the Bill.  This clause does not amend the Copyright Act 1968 but rather sets out the broad policy aims of the amendments contained in this Bill.  The aims include promoting the creation of copyright material to take advantage of the new online technologies and promoting access to copyright material online, in particular for cultural and educational institutions.

Clause 4.  Schedule(s)

4.      By virtue of this clause the provisions in the Copyright Act 1968 (hereafter called the Act) are amended or repealed as set out in Schedule 1 and Schedule 2 of the Bill.



SCHEDULE 1 - AMENDMENT OF THE COPYRIGHT ACT 1968

 

Item 1.      Subsection 10(1) (definition of broadcast )

5.      Item 1 repeals the current definition of “broadcast” (ie, “transmit by wireless telegraphy to the public”) in s.10(1) of the Act and substitutes an extended technology-neutral definition.  The term “broadcast” is redefined to mean a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 .  The amendment has the effect of extending the definition of “broadcast”.  This new definition covers cable transmissions.  Section 6(1) of the Broadcasting Services Act 1992 states that “broadcasting service” means:

a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or

(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or

(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

6.      The Note to the new definition of “broadcast” is intended to make clear that a broadcasting service does not include elements (a) and (b) of the Broadcasting Services Act 1992 definition above.

7.      The definition is used throughout the Bill.  Although the proposed new right of communication to the public (see Item 35) is intended to replace and extend the existing broadcasting and cable diffusion rights, it is necessary to retain a definition, albeit wider, of “broadcasting” in the Act.  The reason for this is that the Government has decided to retain most of the existing statutory licences and exceptions in the Act in relation to broadcasting and not extend these licences to apply in relation to communication. 

Item 2.      Subsection 10(1)

8.      Item 2 amends s.10(1) of the Act to import the definition of “carriage service provider” provided in s.87 of the Telecommunications Act 1997 .

Item 3.      Subsection 10(1)

9.      Item 3 amends s.10(1) of the Act to import the definition of “carrier” provided in the Telecommunications Act 1997 .

Item 4.      Subsection 10(1)

10.    Item 4 amends s.10(1) of the Act to insert a definition of “circumvention device”.  The term is defined to mean a device (including a computer program) having no, or only a limited, commercially significant purpose or use other than the circumvention, or facilitating the circumvention, of an effective technological protection measure.  The definition expressly includes a computer program in order to clarify that non-physical circumvention devices, such as a software tool, are included in the definition.

11.    It should be noted that the definition in the Bill refers to devices having no other use than the circumvention of a technological protection measure in order to clarify that devices whose sole purpose is circumvention will be covered by the definition.  The wording is also designed to ensure that general purpose electrical equipment, such as computers and video recorders, does not fall within the definition simply because it could be used to circumvent technological measures.  This definition is used in the new civil actions and criminal offences provided by Items 98 and 100.

Item 5.      Subsection 10(1)

12.    Item 5 amends s.10(1) of the Act to insert a definition of “circumvention service”.  The term is defined to mean a service, the performance of which has no, or only a limited, commercially significant purpose other than the circumvention, or facilitating the circumvention, of an effective technological protection measure.  This definition is used in the new civil actions and criminal offences provided by Items 98 and 100.

Item 6.      Subsection 10(1)

13.    Item 6 amends s.10(1) of the Act to insert a definition of “communicate”.  The definition provides that “communicate” means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter.  The definition is central to the new right to communicate to the public (see Item 35).  The term “communicate” is limited to the availability of material online or through electronic transmissions.  It is not intended to cover the physical distribution of copyright material in a tangible form, which is adequately covered by existing provisions of the Act. The definition makes clear that an electronic transmission may occur as a result of a combination of paths or delivery mechanisms.  For example, a communication over the Internet may involve a transmission that travels across copper wire, optic fibre cables and microwaves. 

Item 7.      Subsection 10(1) (definition of computer program )

14.    Item 7 amends s.10(1) of the Act by repealing the present definition of “computer program” and substituting a new definition.  The new definition provides that “computer program” means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.  The new definition implements a recommendation of the Copyright Law Review Committee (CLRC) in its 1995 report Computer Software Protection .

Item 9.      Subsection 10(1)

15.    Item 9 amends s.10(1) to insert a definition of “electronic rights management information”, providing that specified information attached to, or embodied in, a copy of a work or other subject-matter, or any numbers or codes representing such information electronically, will constitute “electronic rights management information”.  This is intended to include, for example, electronic rights management information such as “digital watermarks”.  RMI typically includes details about the copyright owner and the terms and conditions of the use of the material.  This definition is used in the new civil remedies and criminal offences provided by Items 98 and 100, and is  consistent with Article 12(2) of the WIPO Copyright Treaty and Article 19(2) of the WIPO Performances and Phonograms Treaty.

Item 10.    Subsection 10(1) (paragraph (e) of the definition of infringing copy )

16.    Item 10 amends s.10(1) by omitting the word “reproduction” from paragraph (e) of the definition of “infringing copy” and substituting the term “facsimile copy”.  This term is intended to be technology-neutral and means an exact copy.  It is not intended to be limited in meaning to a copy produced by a facsimile machine.  The amendment is a consequence of the replacement of the reference to a reproduction of a published edition in s.88 with a right to make a facsimile copy (see Item 84). 

Item 12.    Subsection 10(1) (paragraph (a) of the definition of literary work )

17.    Item 12 amends s.10(1) by omitting the words “whether or not in a visible form” from paragraph (a) of the definition of “literary work”.  The amendment gives effect to Recommendation 2.04(a) of the CLRC Computer Software Report that the words be removed as they are superfluous on the basis of the operation of ss.32(1) and 22 and the definition of material form in s.10(1).  These provisions have the net effect of providing that copyright will subsist in works stored invisibly, and the inclusion of the words “whether or not in visible form” in the definition of literary work is therefore unnecessary.

Item 13.    Subsection 10(1) (definition of manuscript )

18.    Item 13 amends s.10(1) to repeal the definition of “manuscript” and substitute a new definition of “manuscript”.  This term is defined to mean the document embodying a literary, dramatic or musical work as initially prepared by the author.  This document can be in hard copy form, electronic form or any other form.

Item 14.    Subsection 10(1)

19.    Item 14 amends s.10(1) to insert a definition of “reception equipment”.  This term is defined to mean equipment that enables people to hear or see a work or other subject-matter that is communicated.  This equipment can be used either alone or together with other equipment.

Item 15.    Subsection 10(1)

20.    Item 15 amends s.10(1) to insert a definition of “retransmission” in relation to a broadcast.  The key elements are that the transmission content is unaltered, and that the retransmission is either simultaneous with the original transmission or, where the retransmission is to an area with a different local time, the retransmission is delayed until no later than the equivalent local time.  Differences in the techniques used to achieve a retransmission compared to the techniques used to achieve the original transmission will not be relevant to the question of whether a retransmission is a retransmission for the purposes of the Act.

Item 15A.   Subsection 10(1)

21     Item 15A inserts a definition of “simulcasting” in s.10(1) of the Act.  The term is defined as meaning simultaneously broadcasting a broadcasting service in both analog and digital form in accordance with the requirements of the Broadcasting Services Act 1992 , or of any prescribed legislative provisions relating to digital broadcasting.  The definition is intended to clarify the meaning of “simulcasting” for the purposes of ss.47AA and 110C as provided by Items 46B and 93A.

Item 15B.   Subsection 10(1)

22.    Item 15B inserts a definition of “technological protection measure” in s.10(1) of the Act.  A “technological protection measure” means a device, product, or component incorporated into a process which, in the ordinary course of its operation, is designed to prevent or inhibit the infringement of copyright in a work or other subject-matter by either or both of two means: by a copy control mechanism; or by ensuring that access to the work or other subject-matter is available solely by an access code or process with the authority of the copyright owner or licensee.  This definition is used in the new civil and criminal offences provided by Items 98 and 100.

Item 16.    Subsection 10(1)

23.    Item 16 amends s.10(1) to insert a definition of “to the public” which will mean “to the public within or outside Australia”, thus making it clear that the term “to the public” extends to the public outside Australia.  Currently the Act does not provide copyright owners with the exclusive right to control transmissions that originate from Australia but are intended only for reception by the public outside Australia, as they are not broadcasts to the public in Australia as required by the Act.  The inclusion of this definition will mean that Australian copyright owners can control the communication of material from Australia directed to overseas audiences.

Item 17.    Subsection 10(1) (definition of wireless telegraphy )

24.    Item 17 amends s.10(1) to repeal the definition of “wireless telegraphy”.  The definition is no longer required as a result of the repeal and substitution of the definition of “broadcast” which no longer includes reference to “wireless telegraphy”.

Item 18.    Subsection 10(1) (definition of wireless telegraphy apparatus )

25.    Item 18 amends s.10(1) to repeal the definition of “wireless telegraphy apparatus”.  The definition is no longer required due to the repeal and substitution of the definition of “broadcast” (see also Item 17).

Item 19.    Subsection 10(2)

26.    Item 19 amends s.10(2) to insert the phrase “(other than a computer program)” after the term “musical work”.  This is to ensure that the so-called “reasonable portion test” is not extended to computer programs.  The exclusion of computer programs recognises that 10% of a computer program could include a considerable  amount of code and should not therefore be included within the reasonable portion test.

Item 20.    After subsection 10(2)

27.    Item 20 amends s.10 to insert new ss.10(2A), 10(2B) and 10(2C) to provide for the meaning of “reasonable portion” in relation to a published literary or dramatic work in electronic form.  Currently, the Act (in s.40(3)(b)) provides that copying of not more than a reasonable portion of a literary, dramatic or musical work for the purposes of research or study is a fair dealing and not a breach of copyright.  The current “reasonable portion” test in s.10(2) is a quantitative test based on 10% of the pages in an edition of a work, or on a single chapter of a work. 

28.    The amendments in Item 20 extend the quantitative test to copies made from certain types of copyright material in electronic form.  The effect of this provision is to apply to literary and dramatic works in the electronic environment a similar reasonable portion test to that which applies in the paper-based environment.  Given that the concept of numbers of pages is less relevant or applicable in the electronic environment, the test for a reasonable portion in electronic form is based on the total number of words in the work.

29.    New s.10(2A) provides that the reproduction of part of a literary or dramatic work will be taken to contain only a reasonable portion of the work if the number of words copied does not exceed 10% of the number of words in the work.  If the work is divided into chapters, the reproduction will be taken to contain only a reasonable portion of the work if the number of words copied does exceed 10% of the work but only contains the whole or part of a single chapter of the work.  Subsection 10(2A) does not extend to a literary work that is a computer program or database.  Subsection 10(2A) also does not extend to musical works.

30.    New s.10(2B) makes it clear that the reproduction of part of a published work  which exists in both electronic and paper forms, must only meet the requirements of either ss.10(2) or 10(2A) to be deemed to be a reasonable portion of the work.

31.    New s.10(2C) limits the ability to make serial reproductions under the reasonable portion test in ss.10(2) and 10(2A).  The subsection clarifies that a person may not reproduce more than one reasonable portion from the same work under the reasonable portion test.

Item 21.    At the end of subsection 10(4)

32.    Item 21 amends s.10(4) to insert examples of bodies that could have collections covered by paragraph (b) of the definition of “archives” in s.10(4) of the Act.  The example is intended to clarify that the definition of “archives” applies to certain galleries and museums where they satisfy the criteria specified in s.10(4).  It is intended that major collecting institutions, such as the National Gallery of Australia, be included, but not private commercial galleries.

Item 23.    After subsection 21(1)

33.    Item 23 inserts a new s.21(1A) to provide that a work is taken to have been reproduced if it is converted into or from a digital or other machine-readable form, and that any article embodying the work in such a form is taken to be a reproduction of the work.  The new subsection implements the CLRC’s recommendation that the meaning of reproduction be clarified with respect to works stored electronically.   

 34.   Item 23 also inserts a legislative note to s. 21(1A).  The legislative note provides that the conversion of a work into a digital or other electronic machine-readable form includes the first digitisation of the work.  This note is intended to clarify that the conversion of a work from hardcopy to digital form is included in the right of reproduction.  A corresponding amendment is made in relation to sound recordings and cinematographic films (see Item 25).

Item 24.    Subsection 21(2)

35.    Item 24 repeals the current s.21(2) and substitutes an alternative formulation.  The amendment is a consequence of the insertion of new s.21(1A) (see Item 23).  The reference to “the last preceding subsection” has therefore been substituted with a reference to “subsections (1) and (1A)”.

Item 25.    At the end of section 21

36.    Item 25 amends s.21 to insert new ss.21(5) and 21(6).  The new s.21(5) clarifies that the conversion of computer program from one type of code to another type of code is a reproduction.  This amendment implements the CLRC’s recommendation in its Computer Software Report to clarify that a conversion of a computer program will be taken to be a reproduction.  The new subsection has the effect that a computer program is taken to have been reproduced if an object code version (code readable by machine only) is derived from the program in source code (code readable by humans) by any process, including a process of compilation.  Conversely, a computer program is taken to have been reproduced if a source code version of the program is derived from the program in object code by any process, including decompilation.  Any version of the program so derived is taken to be a reproduction of the program.

37.    Item 25 further amends s.21 to insert an equivalent provision to the new s.21(1A) in relation to the copying of subject-matter other than works.  The new s.21(6) clarifies that a sound recording or cinematograph film is taken to have been copied if it is converted into or from a digital or other electronic machine-readable form, and that any article embodying the recording or film in such a form is taken to be a copy of the recording or film.  This has the effect of clarifying the scope of the right to make a copy of a sound recording or cinematograph film.

38.    Item 25 also inserts a legislative note to s.21(6). The legislative note provides that the conversion of a sound recording or cinematograph film into a digital or other electronic machine-readable form includes the first digitisation of the sound recording or cinematograph film. This note is intended to clarify that a conversion from analog to digital form is included as a sub-set of the copying right.  A corresponding amendment is made in relation to works (see Item 23).

39.    The heading of s.21 is consequentially amended to read “Reproduction and copying of works and other subject-matter”.

Item 26.    Subsections 22(5) and (6)

40.    Item 26 repeals the current ss.22(5) and (6) and substitutes a new formulation.  The new s.22(5) provides that a broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered.  This formulation avoids the potential for conferring copyright on channel providers and production companies who may determine the content of the broadcast.

41.    The new s.22(6) provides that a communication other than a broadcast is taken to have been made by the person responsible for the content of the communication.  This provision relies on the extended definition of communicate in Item 6.  The provision has the effect that communications carriers and Internet Service Providers will not be directly liable for communicating material to the public via their networks if they are not responsible for determining the content of that material.

Item 27.    Subsection 25(3)

42.    Item 27 amends s.25(3) by omitting the words “simultaneously making a further transmission” and substituting the words “making a retransmission”.  The amendment is a consequence of the inclusion of the defined term “retransmission” (see Item 15) and is intended to achieve consistency in terminology. 

Item 28.    Subsection 25(5)

43.    Item 28 repeals s.25(5) which currently provides for the meaning of the term “re-transmission” in the context of the section.  The amendment is a consequence of the inclusion of the defined term “retransmission” (see Item 15) and the repeal of s.25(5) is intended to achieve consistency in terminology. 

Item 29.    Section 26

44.    Item 29 repeals s.26 which currently provides for references to transmission to subscribers to a diffusion service in the Act.  The provision is no longer required because of the introduction of the new right to communicate to the public (see Item 35) which incorporates within its scope the right to transmit to subscribers to a diffusion service.

Item 30.    Paragraph 27(1)(a)

45.    Item 30 amends s.27(1)(a) by omitting the words “operation of wireless telegraphy apparatus” and substituting the words “use of reception equipment”.  This amendment is a consequence of the repeal of the definition of “wireless telegraphy apparatus” (see Item 18) and the addition of the definition of “reception equipment” (see Item 14). 

Item 31.    Subsection 27(2)

46.    Item 31 repeals the current s.27(2) and substitutes an alternative formulation.  The amendment is a consequence of the replacement of the broadcast and diffusion rights with the broader right to communicate to the public.  The new subsection provides that such communication to the public does not amount to performance or causing images to be seen or sounds to be heard.

Item 32.    Subsection 27(3)

47.    Item 32 amends s.27(3) by omitting the words “receiving apparatus” and substituting the words “reception equipment”.  The amendment is a consequence of the inclusion of the new defined term “reception equipment” in s.10(1) of the Act (see Item 14) and is intended to achieve consistency in terminology.

Item 33.    Subsection 27(3)

48.    Item 33 amends s.27(3) by omitting the words “conveyed by the transmission of electromagnetic signals (whether over paths provided by a material substance or not), the operation of any apparatus by which the signals are transmitted” and substituting the words “communicated, the operation of any equipment by which the images or sounds are communicated”.  The amendment is a consequence of the replacement of the broadcast and diffusion rights with the broader right to communicate to the public and the inclusion of the defined term “reception equipment”.  It is intended to achieve consistency in terminology.

Item 34.    Subsection 27(4)

49.    Item 34 amends s.27(4) by omitting the word “apparatus” and substituting the word “equipment”.  The amendment is a consequence of the inclusion of the new defined term “reception equipment” in s.10(1) of the Act (see Item 14) and is intended to achieve consistency in terminology.

Item 35.    Subparagraphs 31(1)(a)(iv) and (v)

50.    Item 35 amends s.31(1)(a) to repeal ss.31(1)(a)(iv) and (v) and substitutes a new s.31(1)(a)(iv).  The amendment introduces the new technology-neutral right to communicate literary, dramatic and musical works to the public.  The new right will provide copyright owners with greater protection for their material in the new digital environment and is the keystone to the reforms provided by this Bill.  The new right replaces and extends the existing technology-specific broadcasting right which currently only applies to “wireless” broadcasts.  The new right of communication to the public also replaces the limited right to transmit to subscribers to a diffusion service (ie, cable diffusion right).

51.    The new right of communication to the public encompasses the making available of copyright material on-line, so as to provide protection to copyright material made available through on-demand, interactive transmissions.  An example of the exercise of this right would be the uploading of copyright material onto a server which was connected to the Internet. 

Item 36.    Subparagraph 31(1)(a)(vii)

52.    Item 36 amends s.31(1)(a)(vii) to substitute the reference to subparagraph (v) with a reference to new subparagraph (iv).  The amendment is a consequence of the amendments to subparagraphs (iv) and (v) referred to in Item 35.

Item 37.    Subparagraphs 31(1)(b)(iii) and (iv)

53.    Item 37 amends s.31(1)(b) to repeal ss.31(1)(b)(iii) and (iv) and substitute a new s.31(1)(b)(iii).  The amendment introduces a new technology-neutral right to communicate artistic works to the public.  It has the objectives and background as outlined in Item 35.

Item 38.    Subsection 33(3)

54.    Item 38 amends s.33(3) to omit the word “literary” and insert “literary work (other than a computer program) or a”.  The amendment is intended to rectify the current potential for an indefinite term of protection for unpublished computer software.  The disparity arises due to the distinct term of protection conferred on literary works depending on whether they are published or unpublished.  Currently s.33(3) could potentially result in indefinite copyright protection for unpublished computer software.  The amendment implements the CLRC recommendation in the Computer Software Report that the distinction not be drawn in relation to computer programs, and that the term of protection for computer programs, whether published or unpublished, be the same period of time, being the life of the author plus fifty years.

Item 39.    After subsection 36(1)

55.    Item 39 inserts a new s.36(1A) which specifies an inclusive list of matters that must be taken into consideration under s.36(1).  Subsection 36(1A) sets out the factors that must be taken into account in determining whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting under Part III (copyright in a literary, dramatic, musical or artistic work) without the licence of the owner of the copyright. (See also Item 87 in relation to subject-matter other than works).

56.    The key factors which must be taken into account in determining whether a person has authorised the doing of an act include: the extent, if any, of the person’s power to prevent the doing of the act; the nature of any relationship between the person and the infringer; and whether the person took any reasonable steps to prevent or avoid the infringement.

57.    The inclusion of these factors in the Act essentially codifies the principles in relation to authorisation that currently exist at common law (see in particular University of New South Wales v Moorhouse (1975) 133 CLR 1).  They are intended to provide a degree of legislative certainty about liability for authorising infringements.  Additional certainty in relation to third party liability for copyright infringement is provided by new s.36(1A)(c).  This paragraph specifies that compliance with relevant industry codes of practice is a factor in determining whether the person took reasonable steps to prevent or avoid the infringement.

Item 40.    Subsection 36(2)

58.    Item 40 amends s.36(2) to omit the words “the last preceding subsection” and substitute “this section”.  The amendment is a consequence of the inclusion of s.36(1A) as referred to in Item 39.

Item 41.    Paragraph 39A(a)

59.    Item 41 amends s.39A(a) to omit the words “for the making, by reprographic reproduction of copies of documents” and substitutes “(including a computer)”.  The amendment is intended to apply existing principles in relation to the liability of libraries and archives to the digital environment.  Currently, libraries and archives are not liable for authorising the making of infringing copies by users on photocopy machines simply because the copy was made on a machine in the library or archives.  The amendment has the effect of providing that libraries and archives will not be liable for authorising the making of infringing copies made using computers in a library or archives by reason only that the infringements occurred on computers in the library or archives.  The extension of the principle to the digital environment is subject to the limitation that the library must display copyright warning notices similar to those currently required for photocopiers.  The amendment is intended to retain the existing scope of the definition in relation to photocopiers.

Item 42.    After section 39A

60.    Item 42 inserts a new s.39B (Communication by use of certain facilities) into the Act.  New s.39B has the effect of expressly limiting the authorisation liability of persons who provide facilities for the making of, or facilitating the making of, communications.  The section provides that such persons are not taken to have authorised the infringement of copyright in a work merely because another person has used the facilities to engage in copyright infringement.  For example, a carrier or other service provider will not be liable for having authorised a copyright infringement merely by providing the facilities by which the communication was facilitated.

61.    New s.39B is intended to encompass the provision of facilities by digital storage service providers in addition to carriers, carriage service providers and any other persons who provide facilities for making, or facilitating the making of, a communication.  A corresponding section in respect of audio-visual items is provided by s.112E (see Item 95).

Item 42A.   Subsection 40(2)

62.    Item 42A amends s.40(2) of the Act by omitting the word “copying” and substituting the word “reproducing”.  This item is a consequence of the replacement of the term “copy”, in relation to works, with the term “reproduction”.

Item 42B.   Paragraph 40(2)(e)

63.    Item 42B amends s.40(2)(e) of the Act by omitting the word “copied” and substituting the word “reproduced”.  This item is a consequence of the replacement of the term “copy”, in relation to works, with the term “reproduction”.

Item 42C.   Subsection 40(3)

64.    Item 42C amends s.40(3) of the Act by omitting the word “copying” and substituting the word “reproducing”.  This item is a consequence of the replacement of the term “copy” throughout the Bill, with the term “reproduction”.

Item 42D. Subsection 40(4)

65.    Item 42D amends s.40(4) of the Act by repealing the subsection and inserting a new s.40(4).  The effect of this amendment is to replace all references to “copy” in the subsection with the term “reproduction”.

Item 43.    Paragraph 42(1)(b) and subsection 42(2)

66.    Item 42 amends ss.42(1)(b) and 42(2) by omitting the word “broadcasting” and substituting “a communication”.  The amendment is a consequence of the introduction of the new right to communicate a work (inserted by Item 35) to the public which replaces the existing right in relation to literary, dramatic and musical works to broadcast the work, and in relation to artistic works, to include the work in a television broadcast.  The effect of the amendment is to extend to the new right of communication the fair dealing exception for the purposes of reporting news.

Item 44.    Subsection 42(3)

67.    Item 44 repeals s.42(3).  The amendment is a consequence of the introduction of the new right to communicate the work to the public (inserted by Item 35).  This right replaces the existing right in relation to literary, dramatic and musical works to transmit the work to subscribers to a diffusion service, and in relation to artistic works, to cause a television program that includes the work to be transmitted to subscribers to a diffusion service.  Subsection 42(3) is no longer required as the issue is dealt with by the amendments to ss.42(1)(b) and 42(2) made by Item 43.

Item 45.    After section 43

68.    Item 45 inserts a new s.43A to provide an exception to infringement for temporary reproductions made in the course of communication.  One of the existing rights of copyright owners is the right to make reproductions of a substantial part or the whole of a work.  Many temporary or incidental reproductions of copyright material are made in the course of the technical process of the making available and electronic transmission of copyright material on communications networks, including the Internet. 

69.    New s.43A(1) excludes from the scope of the existing reproduction right temporary reproductions made in the course of the technical process of making or receiving electronic communications.  The exception for temporary reproductions is intended to include the browsing (or simply viewing) of copyright material, including copyright material that involves the production of sound.  This amendment reflects the Government’s aim of ensuring that the technical processes which form the basis of the operation of new technologies such as the Internet are not jeopardised.  The exception would also mean that reproductions made in the course of certain caching would not be caught by the existing reproduction right.  In general terms, “caching” is the process whereby digital works are copied as part of the process of electronically transmitting those works to an end user.

70.    New s.43A(2) provides that the maker of a communication that is itself an infringement of copyright is not able to rely on the exception provided in new s.43A(1).

71.    A corresponding section in relation to subject-matter other than works is provided in the new s.111A (see Item 94).  

Item 46.    Section 46

72.    Item 46 amends s.46 to omit the words “wireless telegraphy apparatus” and substitutes the words “reception equipment”.  This is a consequence of the repeal of the definition of “wireless telegraphy apparatus” (see Item 18), and is consistent with the new definition of “reception equipment” as provided by Item 14 of the Bill. 

  Item 46A.  At the end of section 47

73.    Item 46A inserts a new s.47(7) which provides that for the purposes of this section, “broadcasting” does not include simulcasting.  This provision is a consequence of the introduction of the exception to allow the copying of works for the purposes of simulcasting as provided by Item 46B.

Item 46B.   After section 47

74.    Item 46B inserts a new s.47AA (Reproduction for the purpose of simulcasting).  The new section is intended to ensure that broadcasters who are required to simulcast under Schedules 2 and 4 of the Broadcasting Services Act 1992, or future digital broadcasting legislation, do not infringe copyright in the underlying works included in a film or sound recording where a copy of the film or sound recording is made solely for the purposes of simulcasting in digital form.

75.    Subsection 47AA(1) provides a specific exception from infringement for reproducing a literary, dramatic or musical work, or an adaptation of such a work, where the broadcast of the literary, dramatic or musical work, or an adaptation of such a work, would not be an infringement, but the making of a sound recording or a cinematograph film of the work or adaptation would be an infringement.  The exception is limited to copies made solely for the purposes of simulcasting as required by the Broadcasting Services Act 1992 or future digital broadcasting legislation.

76.    Subsection 47AA(2) provides that the exception in s.47AA(1) does not apply if the copy of the film or sound recording is used for a purpose other than the non-infringing simulcast of the film or sound recording, or the further copying of the film or sound recording for the purposes of such simulcasting.

77.    Subsection 47AA(3) provides that the exception in  s.47AA(1) does not apply unless all copies of the film or sound recording are destroyed by the date specified in the regulations.  This is intended to ensure that copies made for the purposes of simulcasting must be destroyed after the legislative requirement to simulcast has ended.

78.    Subsection 47AA(4) provides that the regulations may prescribe different relevant dates in relation to different classes of films or sound recordings.  This is intended to cover the situation if simulcasting is required under different legislative regimes.

Item 46C.   Before section 47B

79.    Item 46C inserts a new  s.47AB (Meaning of computer program).  New  s.47AB provides that for the purposes of the Division (Division 4A Part III), a computer program includes any literary work that is incorporated in, or associated with a computer program, and is essential to the effective operation of a function of that computer program.

80.    Division 4A of Part III of the Act commenced on 30 September 1999.  The new provisions specify certain acts which would not constitute an infringement of copyright in computer programs.  These specified purposes included the reproduction of computer programs in order to correct errors, for the purposes of security testing, and in order to make interoperable products.

81.    On 30 September 1999 the High Court handed down its decision in Data Access Corporation v Powerflex Services Pty Ltd & Ors [1999] HCA 49, which included a finding that a compression table in a computer program was a literary work.  The definition of “literary work” in the Act includes:

“a table, or compilation, expressed in words, figures or symbols (whether or not in visible form)”.

82.    The High Court held that the compression table contained in the Dataflex program was a table expressed in figures and symbols, and therefore fell squarely within the statutory definition of a “literary work”.  As the table was original, and resulted from the exercise of substantial skill and judgement, it constituted an original literary work for the purposes of the Act.

83.    Many computer programs rely on tables or compilations such as the Huffman compression table incorporated in the Dataflex system.  Indeed, such tables or compilations may be incorporated in or associated with a computer program to the extent that they become essential to the effective performance of the functions of that computer program.

84.    It was the Government’s intention in introducing Division 4A of Part III of the Act that the reproduction of computer programs be allowed for the limited purposes set out in that Division.  The practical result of the decision in Data Access Corporation v Powerflex Services Pty Ltd & Ors is that any table or compilation associated with or incorporated in such computer programs may not be able to be reproduced.  This could result in the computer program itself not being able to be reproduced under the limited exceptions.

85.    Item 46C will ensure that, wherever a person is permitted to reproduce a computer program for the purposes of normal use or study, making a back-up copy, making interoperable products, error correction or security testing, that person is also permitted to reproduce any literary work that is incorporated in, or associated with a computer program, which is essential to the effective operation of a function of that computer program.

Item 46D.   Paragraph 47B(1)(a)

86.    Item 46D omits the words “made in the course” from s.47B(1)(a) of the Act and substitutes the words “incidentally and automatically made as part of the technical process”.  The effect of this amendment is to confirm that reference to the making of a reproduction in s.47B(1)(a) of the Act is to reproductions incidentally and automatically made as part of the technical process of running a program for normal use.

Item 46E.   Paragraph 47B(2)(b)

87.    Item 46E repeals s.47B(2)(b) of the Act and substitutes a new s.47B(2)(b).  The effect of this amendment is that the exception in s.47B(1) of the Act does not apply contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made.  This amendment is intended to reflect that some packaged software is licensed, and not sold, to consumers. 

Item 46F.   Paragraph 47B(3)(a)

88.    Item 46F omits “made in the course” from s.47B(3)(a) of the Act and substitutes “incidentally and automatically made as part of the technical process”.  The effect of this amendment is to confirm that the reference to the making of a reproduction in s.47B(3)(a) of the Act is to reproductions incidentally and automatically made as part of the technical process of running the program to study its operation.

Item 46G.   At the end of section 47B

89.    Item 46G inserts a new s.47B(5) which provides that, for the purposes of s.47B of the Act, reproduction in relation to a computer program does not include the derivation of a source code version of the program from the program in object code by any process, including a process of decompilation.  A process such as decompilation is not necessary to reproduce a computer program in the course of running the program for the purposes for which it was designed, or for the purpose of studying the ideas behind the program.  The new subsection therefore prevents persons from decompiling programs under the guise of reproducing programs for normal use or study.

Item 46H.   Subsection 47C(2)

90.    Item 46H omits the words “is not infringed by the making of a reproduction of the work” from s.47C(2) of the Act and substitutes the words “, and in any work or other subject-matter held together with the program on the same computer system, is not infringed by the making of a reproduction of the program, or of such a work or other subject-matter”.  The effect of this amendment is to extend s.47C(2) of the Act so that it covers copies of any works or subject-matter other than works that are held together with the computer program on the same system.  This is intended to ensure that back-up copying of data such as that referred to in s.47C(2)(b) of the Act is not impeded or inhibited by the risk of infringement of such works or other subject-matter.

Item 46I.    Paragraph 47D(1)(b)

91.    Item 46I inserts the words “ , or a person acting on behalf of the owner or licensee,” after the word “licensee” in s.47D(1)(b) of the Act.  This amendment is intended to have the effect that if the owner or licensee of software engages a person to develop a new interoperable product on their behalf, this person may make a reproduction or adaptation of the original program for the purpose of obtaining information necessary to the process of making an interoperable product.

Item 47.    At the end of section 47C

92.    Item 47 inserts a new s.47C(6).  The new subsection has the effect of providing that for the purposes of s.47C, reproduction in relation to a computer program does not include decompilation.  Such a process is not necessary in order to back-up a computer program.  The subsection therefore prevents persons from decompiling programs under the guise of creating a back-up copy of the program.  This amendment refers to s.21(5)(b) which is inserted by Item 25.

Item 48.    Subsection 49(1)

93.    Item 48 amends s.49(1) to omit the term “copy” throughout and substitute the term “reproduction” (defined in new s.21(1A) to include digital conversions of a work from hard copy to electronic form and vice versa (see Item 23)).  The heading of s.49 is consequentially amended to read “Reproducing and communicating works by libraries and archives for users.” 

94.    The amendment, in addition to the other amendments provided by this Bill, reflects the Government’s aim that libraries and archives should be able to use new technologies to provide access to copyright material for the general community, as long as the economic rights of owners of copyright material are not unreasonably prejudiced.  Section 49 provides an exception that permits libraries and archives to make a copy of a work for a user for the purposes of research or study.  The amendments extend the existing exception to the electronic reproduction and communication of copyright material.  They will allow a library or archive to make a reproduction of a work or part of a work and communicate (see Item 57) the work to a user, subject to certain conditions.  The amendment has the effect of allowing libraries and archives to supply electronic copies of works or parts of works in response to user requests.

Item 49.    Paragraph 49(1)(a)

95.    Item 49 amends s.49(1)(a) to omit the words “publication; and” and to substitute “publication, being a periodical publication or a published work held in the collection of a library or archives; and”.  The amendment has the effect of limiting s.49 to a request to be supplied with a reproduction of a periodical publication or a published work that is already held in the collection of a library or archives. 

Item 50.    Subsection 49(2)

96..   Item 50 amends s.49(2), to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 48.

Item 51.    Paragraph 49(2A)(a)

97.    Item 51 repeals s.49(2A)(a) and substitutes a new paragraph which refers to a request to be supplied with a reproduction of an article or part of an article, contained in a periodical publication, or of a work other than an article contained in a periodical publication, as long as the article or work is held in the collection of a library or archives.

Item 52.    Paragraph 49(2A)(b)

98.    Item 52 amends s.49(2A)(b) to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 48.

Item 53.    Subsections 49(2C), (3), (4) and (5)

99.    Item 53 amends ss.49(2C), (3), (4) and (5) to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 48.

Item 54.    After subsection 49(5)

100.  Item 54 amends s.49 to insert a new s.49(5A) that deals with libraries or archives making material in digital format available online.  The subsection provides that where an article contained in a periodical publication, or a published work, is acquired in digital form as part of a library or archives collection, the officer in charge may make the article or work available online within the premises.  This is subject to the condition that users will not be able to use any equipment supplied by the library or archives to make an electronic copy of the article or work and users will not be able to communicate the article or work.  However, users will be able to make a fair dealing hard copy of such a work made available online on the premises of a library or archives.

101.  The provision implements the Government’s decision that if a library obtains copyright works in digital format, the permission of the copyright owner is not necessary for the library to exercise the new right of communication to the public to make the material available online to users onsite.

102.  By way of comparison, the mere display of hard copy books in a library is not an infringement of copyright.  This provision is intended to create a similar exception for material in electronic format that complies with the requirements of new s.49(5A).

Item 55.    Subsections 49(6) and (7)

103.  Item 55 amends ss.49(6) and (7) to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 48.

Item 56.    After subsection 49(7)

104.  Item 56 amends s.49 to insert new ss.49(7A) and 49(7B).  The amendments provide that libraries and archives will be able to make and communicate reproductions of works and articles to a user without infringement subject to certain conditions.

105.  New s.49(7A) provides that where a library or archives makes a reproduction in response to a user request, the exceptions provided for copyright infringement in subsections (6) and (7) do not apply unless before or when the reproduction is communicated, the person is provided with a prescribed notice to the effect that the reproduction has been made under s.49 and that the article or work might be subject to copyright protection.  The notice must also include such other matters (if any) as are prescribed.  The notice does not necessarily have to be attached to or embedded in the article or work that is communicated (for example, such a notice may be provided before the user gets access to the material).

106.  New s.49(7A) also provides that the exceptions provided for copyright infringement in ss.49(6) and (7) do not apply unless the reproduction is destroyed as soon as practicable after it is communicated to the requesting user.  The subsection prevents libraries and archives from building up electronic collections of parts or the whole of articles or works as a result of communicating such works to users under s.49(2) and (2C).

107.  New s.49(7B) provides that it is not an infringement of copyright in an article contained in a periodical publication or of copyright in a published work to communicate it in accordance with ss.49(2), (2C) or (5A).  The new subsection creates an exception to the infringement of copyright where the material is communicated in electronic format.

Item 57.    Subsection 49(9)

108.  Item 57 repeals s.49(9) and substitutes a new provision that introduces a new definition of “supply” in addition to retaining the existing definition of “library” for the purposes of s.49.  “Supply” is defined to include “supply by way of a communication”.  This is intended to ensure that the term “supply” encompasses the communication of a work or part of a work to a particular user.  The extended exception will only apply to the communication of a work or part of a work to a particular user and does not apply to the communication of the copyright material to the public at large. 

Item 58.    Subsection 50(1)

109.  Item 58 amends s.50(1) to omit the term “copy” throughout and substitute the term “reproduction”, defined in the new s.21(1A) to include digital conversions of a work from hard copy to electronic form and vice versa (see Item 23).  This provision has a similar intention and effect as the amendments in Item 48.  The heading of s.50 is amended to read “Reproducing and communicating works by libraries or archives for other libraries or archives.” 

110.  This amendment, in addition to the other amendments provided in the Bill, gives effect to the Government’s decision that libraries and archives should be able to use new technologies to provide access to copyright material for the general community, as long as the economic rights of owners of copyright material are not unreasonably prejudiced.  Section 50 provides an exception that permits libraries and archives to make a copy of a work for other libraries and archives for certain purposes.  The amendment extends the existing exception to the electronic reproduction and communication of copyright material.  It will allow a library or archive to make a reproduction of a work or part of a work and communicate (see Item 66) the work to another library or archives subject to certain conditions.  The amendment has the effect of allowing libraries and archives to supply electronic copies of works or parts of works in response to requests from other libraries or archives.

Item 59.    Subsection 50(1)

111.  Item 59 amends s.50(1) to omit the term “publication:” and substitute “publication, being a periodical publication or a published work held in the collection of a library:”.  The effect of this amendment is to limit the application of the exception to requests for works held in the collection of the library network.  This will allow the continued operation of inter-library supply services, such as SUPPLY 1.  

Item 60.    Subsection 50(2)

112.  Item 60 amends s.50(2) to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 58. 

Item 61.    Subsection 50(3)

113.  Item 61 amends s.50(3) to omit “a copy of the whole or a part of a work” and substitute the words “a reproduction of the whole or part of a work (including an article contained in a periodical publication)”.  This change is intended to reflect the replacement of the term “copy” with the term “reproduction” as referred to in Item 58, and to include an article in a periodical publication. 

Item 62.    Paragraphs 50(3)(a) and (b)

114.  Item 62 amends ss.50(3)(a) and (b) to omit the term “copy” throughout and substitute the term “reproduction”.  This provision has the same intention and effect as the amendments in Item 58. 

Item 63.    Subsection 50(4)

115.  Item 63 repeals s.50(4) and inserts a new s.50(4) which extends the exception allowing libraries or archives to reproduce copyright material for other libraries and archives to the communication of reproductions supplied under s.50 of the Act.  This is a consequential amendment resulting from the extension of s.50 of the Act to the communication of works. 

Item 63A.   Subsections 50(6) and (7)

116.  Item 63A  amends s.50(6) and (7) of the Act by replacing the word “copy” throughout with the word “reproduction”.  This item is a consequence of the replacement of the term “copy” throughout the Bill with the term “reproduction”.

Item 64.    Subsection 50(7A)

117.  Item 64 repeals the present s.50(7A) and substitutes new ss.50(7A), (7B) and (7C).  Consistent with the other amendments to s.50, these amendments give effect to the Government’s decision that libraries and archives should be able to use new technologies to provide access to copyright material for the general community.  The effect of the amendments is that reproductions of works for the purposes of supply in response to requests from other libraries and archives will be subject to the “commercial availability” test (ie, whether the work can be obtained within a reasonable time at an ordinary commercial price).  Different conditions apply depending on whether the reproduction is made of a hard copy work or a work in electronic form.

118.  New s.50(7A) provides that, in the case of reproductions from hard copy works, the reproduction (apart from reproductions made for a Parliamentary library), will be subject to the “commercial availability” test only when the reproduction supplied is more than a reasonable portion of the work (other than an article contained in a periodical publication).  This has the effect of applying the existing limitations under s.50 where a reproduction is made of the whole hard copy work (except an article in a periodical publication) or more than a reasonable portion of the hard copy work.

119.  New s.50(7B) provides that in relation to reproductions made from electronic works, the reproduction (apart from reproductions made for a Parliamentary library), will be subject to the “commercial availability” test regardless of whether the reproduction supplied constitutes more than an article contained in a periodical publication or a reasonable portion of the work.  It is therefore intended that any supply of works in electronic form by libraries and archives under s.50 will be subject to the “commercial availability” test.

120.  New ss.50(7B)(ii) - (iv) set out the manner in which the “commercial availability” test will be applied to reproductions made from works in electronic form for the purposes of inter-library supply.

121.  New s.50(7B)(e)(ii) provides that a library or archives may not supply a reproduction of an entire work, or more than a reasonable portion of a work (other than an article in a periodical publication) in electronic form to another library or archives unless the authorised officer is satisfied that the entire work cannot be obtained within a reasonable time at an ordinary commercial price.

122.  New s. 50(7B)(e)(iii) provides that a library or archives may not supply a reproduction of a reasonable portion, or less than a reasonable portion, of a work (other than an article in a periodical publication) in electronic form to another library or archives unless the authorised officer is satisfied that the portion of the work in electronic form, either separately or together with a reasonable amount of other material, is not available within a reasonable time at an ordinary commercial price.  The requirement that the portion be available either separately, or together with a reasonable amount of other material, is designed to ensure that the “commercial availability test” will apply even if the precise portion of the work is not itself commercially available.  The test will not have been met if the portion requested is commercially available together with a reasonable amount of additional text.

123.  New s.50(7B)(e)(iv) provides that a library or archives may not supply a reproduction of the whole or part of an article in electronic form to another library or archives unless the authorised officer is satisfied that the article cannot be obtained on its own in electronic form within a reasonable time at an ordinary commercial price.  The “commercial availability test” will not have been met unless the article is individually available, and not as part of a larger collection of articles, nor as part of a periodical publication.

124.  New s.50(7C) provides that the exception provided for inter-library copying between libraries and archives in s.50(4) of the Act does not apply to reproductions in electronic form unless any reproduction made for the purpose of supply held by the originating library or archives is destroyed. 

125.  The new subsection is intended to prevent libraries and archives from building up electronic collections of copyright material as a result of reproducing and communicating these works to other libraries and archives under the exceptions.  It is consistent with a similar requirement in s. 49(7A)(d) in relation to copying by libraries and archives for users.

Item 65.    Subsection 50(8)

126.  Item 65 amends s.50(8) to omit the term “copy” throughout and substitute the words “reproduction or communication”.  This provision results from the extension of s.50 of the Act to the communication of works and the replacement of the term “copy” with the term “reproduction”. 

Item 66.    At the end of section 50

127.  Item 66  inserts a new s.50(10) which  provides that for the purposes of s.50 of the Act, “supply” includes supply by way of a communication. 

Item 67.    Subsection 51(1)

128.  Item 67 amends s.51(1) to omit the words “and more than 75 years after the time at which, or the expiration of the period during which, the work was made,”.  This amendment implements the CLRC’s recommendation in Part 1 of its Simplification Report (recommendation 2.59) to remove the requirement in s.51(1) that an unpublished work not be copied until 75 years have elapsed since the work was made.  The effect of the amendment is to retain the requirement that an unpublished work can only be copied 50 years after the author of the work has died. 

Item 68.    Paragraph 51(1)(b)

129.  Item 68 amends s.51(1)(b) to omit the word “copy” and substitute “reproduction”.  The term “reproduction” is defined in new s.21(1A) to include digital conversions of a work from hard copy to electronic form and vice versa (see Item 23).  This amendment reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill. 

Item 69.    Paragraphs 51(1)(c) and (d)

130.  Item 69 repeals ss.51(1)(c) and (d) and substitutes new ss.51(1)(c) and (d).  The new paragraphs extend the exception to the new right of communication.  The new paragraphs also reflect the change in terminology from “copy” to “reproduction”.  “Reproduction” is defined in the new s.21(1A) to include digital conversions of a work from hard copy to electronic form and vice versa (see Item 23).  The heading of s.51 is consequentially amended to read “Reproducing and communicating unpublished works in libraries or archives.” 

Item 70.    Subsection 51(2)

131.  Item 70 repeals s.51(2) and substitutes new s.51(2).  The new subsection reflects the change in terminology from “copy” to “reproduction”.  “Reproduction” is defined in the new s.21(1A) to include conversions of a work from hard copy to electronic form and vice versa (see Item 23).  The amended subsection also extends the exception to the communication of reproductions for persons requiring the literary work for the purposes of research or study.

Item 71.    Subsection 51AA(1)

132.  Item 71 amends s.51AA(1) to insert the words “or communication” after the words “the making”.  This amendment extends the exception to the new right of communication.  The heading of s.51AA(1) is consequentially amended to read “Reproducing and communicating works in Australian Archives”.  Section 51AA currently provides an exception to the reproduction right where works are copied for preservation and other purposes.  In conjunction with Item 72, this amendment gives effect to the Government’s decision to expand the scope of s.51AA.  The amendment will enable the Australian Archives to digitise and communicate material in its collections for preservation and other purposes. 

Item 72.    Subsection 51AA(2) (definitions of reference copy, replacement copy and working copy)

133.  Item 72 amends s.51AA(2) to omit the words “a copy” and substitute the words “a reproduction”.  “Reproduction” is defined in the new s.21(1A) to include conversions of a work from hard copy to electronic form and vice versa (see Item 23).  In conjunction with Item 71, this amendment gives effect to the Government’s decision to expand the scope of s.51AA.  The amendment will enable the Australian Archives to digitise the copyright material in its collections and exercise the communication right in relation to copyright material held in its collections for preservation and other purposes. 

Item 73.    Subsection 51A(1)

134.  Item 73 amends s.51A(1) to insert the words “or communicating” after the words “the making”.  This amendment extends the exception to the new right of communication.  The heading of s.51A is consequentially amended to read “Reproducing and communicating works for preservation and other purposes”.

135.  Section 51A currently provides an exception to infringement of the reproduction right where works are copied for preservation and other purposes by libraries and archives.  In conjunction with Item 74, this amendment gives effect to the Government’s decision to expand the scope of s.51A.  The amendment will enable libraries and archives to digitise the copyright material in their collections and exercise the communication right in that material for preservation and other purposes. 

Item 74.    Subsection 51A(1)

136.  Item 74 amends s.51A(1) to omit the words “copy (including a microform copy)” and substitutes the word “reproduction”.  “Reproduction” is defined in s.21(1A) to include conversions of a work from hard copy to electronic form and vice versa (see Item 23).  In conjunction with Item 73, this amendment gives effect to the Government’s decision to expand the scope of s.51A.  The amendment will enable libraries and archives to digitise the copyright material in their collections and exercise the communication right in that material for preservation and other purposes. 

Item 75.    Subsections 51A(2) and (3)

137.  Item 75 repeals ss.51A(2) and (3) and substitutes new ss.51A(2), (3), (3A) and (3B).  The new s.51A(2) effectively substitutes reference to a “copy” with the term “reproduction”.  This is consequential to, and consistent with, changes made to s.51A(1) by Items 73 and 74.  The new subsection removes the

technology - specific reference to microform copy.  The amendment will enable libraries and archives to digitise the copyright material in their collections for “administrative purposes”.

138.  The new s.51A(3) will enable libraries and archives to exercise the communication right in relation to copyright material in their collections that has been reproduced pursuant to s.51A(2).  This provision will enable libraries and archives to communicate this material within the premises to officers of the library or archives with the approval of the body administering the library or archives.

139.  The new s.51A(3A) is intended to allow for the making available online, in the circumstances described in the new s.51A(3B), of a preservation reproduction of original artistic works to the public subject to certain conditions.  This is limited to a “preservation reproduction”, as defined by Item 78.  In order to rely on this exception, the library or archives would need to ensure that the material is made available only within the premises of the library or archives on a computer terminal that cannot be used by a person accessing the work to make an electronic or hard copy reproduction, or to communicate the reproduction. 

140.  The new s.51A(3B) sets out the circumstances in which a library or archives (including a gallery) may display a preservation reproduction of an original artistic work under s.51A(3A).

141.  The copyright in an original artistic work will not be infringed by the display of a preservation reproduction of that work where the work has been lost or has deteriorated since the preservation reproduction was made, or where the original work has become so unstable that it cannot be displayed without risk of significant deterioration. 

Item 76.    Subsection 51A(5)

142.  Item 76 amends s.51A(5) to omit the words “copy (including a microform copy)” and substitutes the word “reproduction”.  This provision has the same intention and effect as the amendments in Item 74. 

Item 77.    Subsection 51A(5)

143.  Item 77 amends s.51A(5) to omit the words “of the copy” and substitute the words “or communication of the reproduction”.  This is consequential to, and consistent with, changes made to this section.  This amendment reflects the extension of this section to the new right of communication.

Item 78.    At the end of section 51A

144.  Item 78 amends s.51A to insert a new s.51A(6) that defines “preservation reproduction” for the purposes of s.51A.  This term is used in s.51A(3A) as described in Item 75.  The term makes clear that a reproduction may only be made of an artistic work under s.51A(3A) for the purpose of preserving the original version of the work against loss or deterioration. 

Item 79.    Subsection 52(3)

145.  Item 79 repeals s.52(3) of the Act and substitutes new  s.52(3).  New s.52(3) extends the exception from liability in s.52(3) of the Act to a person who electronically transmits the work, or that part of the work (other than in a broadcast) for a fee payable to the person who made the transmission.  This is a technical amendment which is designed to include all transmissions which were previously included under s.52(3) of the Act by reference to broadcasts and transmissions to subscribers of a diffusion service.  In effect, the amendment is designed to preserve the operation of s.52(3) of the Act.

Item 80.    Section 69

146.  Item 80 repeals s.69 of the Act.  Section 69 currently provides that ss.65, 66 and 67 apply in relation to a television programme that is caused to be transmitted to subscribers to a diffusion service in the same way as they apply in relation to a television broadcast.  Section 69 will no longer be necessary as a result of the amendment to the definition of “broadcast” which extends the meaning of that term to apply to cable transmissions (see Item 1). 

Item 81.    Paragraph 85(1)(c)

147.  Item 81 repeals present s.85(1)(c) and substitutes new s.85(1)(c).  The effect of the amendment is to introduce the new technology-neutral right to communicate sound recordings to the public.  The new right replaces and extends the existing technology-specific broadcasting right which currently only applies to “wireless” broadcasts.  This amendment has a similar intention and effect as described in Item 35.

Item 82.    Paragraphs 86(c) and (d)

148.  Item 82 repeals present ss.86(c) and (d) and substitutes new s.86(c).  The effect of the amendment is to introduce the new technology-neutral right to communicate films to the public.  The new right replaces and extends the existing technology-specific broadcasting right which currently only applies to “wireless” broadcasts.  The new right of communication to the public also replaces the limited right to transmit to subscribers to a diffusion service (cable diffusion right).  This amendment has a similar intention and effect as described in Item 35.

Item 83.    At the end of paragraph 87(c)

149.  Item 83 amends s.87(c) to add the words “or communicate it to the public otherwise than by broadcasting it”.  Currently, owners of copyright in television and sound broadcasts only have a right to re-broadcast a broadcast, that is, they do not have a right to broadcast.  This amendment has the effect of introducing the new right of communication to the public to television and sound broadcasts.  However, this is modified to ensure that the right of communication does not include a right to broadcast.  The amendment is intended to extend the current re-broadcasting right which only applies to wireless telegraphy to include the cable transmission of broadcasts and the making available online of broadcasts.  The new right will therefore allow broadcasters to control the retransmission of their broadcasts irrespective of the means of delivery of the service.

Item 84.    Section 88

150.  Item 84 amends s.88 to omit the words “by a means that includes a photographic process, a reproduction” and substitutes “a facsimile copy”.  The amendment replaces the right to make a reproduction of a published edition with the narrower right to make a facsimile copy.  This change is intended to rectify the anomaly whereby currently owners of copyright of published editions have an exclusive right of “reproduction”, while owners of copyright of other Part IV subject-matter only have a potentially narrower exclusive right to make a “copy”.  The amendment is technology-neutral as it allows reproductions to be made without a photographic process being involved.  The amendment implements the recommendation of the CLRC to clarify that copyright in a published edition is the exclusive right to make a facsimile copy of that arrangement (recommendation 2.65(a) of the Computer Software Report, 1995).  The definition of an “infringing copy” in relation to published editions is similarly amended (see Item 10).

Item 85.    Sections 91 and 91A

151.  Item 85 repeals present ss.91 and 91A and substitutes new s.91 (“Television broadcasts and sound broadcasts in which copyright subsists”).  Currently ss.91(a) and (c) of the Act provide that copyright subsists in broadcasts made from a place in Australia by the Australian Broadcasting Corporation (ABC) the Special Broadcasting Service Corporation (SBS) and prescribed persons who are licensed under the Radiocommunications Act 1992 .  Paragraph 91(b) provides that copyright subsists in a television broadcast made under a licence issued or a class licence determined under the Broadcasting Services Act 1992

152.  New s.91 provides that copyright subsists in a television broadcast or sound broadcast made from a place in Australia where that broadcast is made under the authority of a licence or class licence under the Broadcasting Services Act 1992 .  The provision also provides for copyright in television or sound broadcasts made from a place in Australia by the ABC and SBS.

153.  Section 91A is repealed as a consequence of the provisions in new s.91.

Item 86.    Section 99

154.  Item 86 repeals present s.99 and substitutes new s.99 (“Ownership of copyright in television broadcasts and sound broadcasts”).  Currently, s.99 of the Act includes reference to the ABC, SBS and the Broadcasting Services Act 1992 in providing for the ownership of copyright in television and sound broadcasts.  New s.99 implements the Government’s decision that the maker of the broadcast is the owner of the copyright in the broadcast.  The new s.22(5) provides that a broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered (see Item 26).

Item 87.    After subsection 101(1)

155.  Item 87 amends s.101 to insert a new s.101(1A) which specifies an inclusive list of matters that must be taken into consideration under s.101(1).  New s.101(1A) sets out the factors that must be taken into account in determining whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting in subject-matter other than works) without the licence of the owner of the copyright. (see also Item 39 in relation to works).

156.  The key factors which must be taken into account in determining whether a person has authorised the doing of an act: the extent, if any, of the person’s power to prevent the doing of the act; the nature of any relationship between the person and the person who did the act concerned; and whether the person took any reasonable steps to prevent or avoid the infringement.

157.  The inclusion of these factors in the Act essentially codifies the principles in relation to authorisation that currently exist at common law (see in particular University of New South Wales v Moorhouse (1975) 133 CLR 1).  It is intended to provide a degree of legislative certainty about the steps that should be taken in order to avoid liability for authorising infringements.  Additional certainty in relation to third party liability is provided by new s.101(1A)(c).  This section specifies that compliance with relevant industry codes of practice is a factor in determining whether the person took reasonable steps to prevent or avoid the doing of the act.

Item 88.    Paragraph 103B(1)(b)

158.  Item 88 amends s.103B(1)(b) by omitting the word “broadcasting” and substituting the words “a communication”.  The amendment is a consequence of the introduction of the technology-neutral right to communicate to the public subject-matter other than works.  The new communication right replaces the existing right to broadcast in relation to sound recordings and cinematograph films and is also introduced in a modified way in relation to television broadcasts and sound broadcasts.  These subject-matter are collectively known as audio-visual items (see s.100A of the Act).  The effect of the amendment is to amend the provision for fair dealing with audio-visual items for the purposes of reporting news to reflect the terminology relating to the new right.

Item 89.    Subsection 103B(2)

159.  Item 89 repeals s.103B(2) of the Act.  The amendment is a consequence of the introduction of the technology-neutral right to communicate cinematograph films to the public which replaces the existing right to cause a film to be transmitted to subscribers to a diffusion service.  Subsection 103B(2) is no longer required as the issue is dealt with by the amendments to s.103B(1)(b) made by Item 88.

Item 90.    After section 104A

160.  Item 90 inserts new s.104B (“Infringing copies made on machines installed in libraries”) which limits the authorisation liability of libraries and archives for reproductions of subject-matter other than works on their premises.  This new provision is in similar terms to s.39A (as amended by Item 41 of this Bill) which provides an exception in relation to literary, dramatic, musical and artistic works. 

161.  The amendment is intended to have the effect that libraries and archives will not be liable for authorising the making of infringing copies by users of material accessible on computers in a library or archives by reason only that the infringements occurred on computers in the library or archives.  The principle is subject to the limitation that the library must display copyright warning notices similar to those currently required for library photocopiers.

Item 90A.   At the end of section 107

162.  Item 90A inserts a new s.107(7) which provides that for the purposes of s.107 of the Act, broadcasting does not include simulcasting.  This amendment is a consequence of the introduction of the exception to allow the copying of analog films and sound recordings for the purposes of simulcasting as provided by Item 93A.

Item 91.    Paragraphs 110A(c) and (d)

163.  Item 91 repeals present ss.110A(c) and (d) and substitutes new ss.110A(c) and (d).  The new paragraphs reflect the extension of the exception in this section to the new right of communication in relation to sound recordings and films.  The heading of s.110A is consequentially amended to read “Copying and communicating unpublished sound recordings and cinematograph films in libraries or archives.”  Currently, this section provides an exception for the copying of unpublished sound recordings and films in archives and libraries for the purposes of research or study or with a view to publication.  The amendment is intended to extend the current provision to the electronic copying and communication of this copyright material.  Unlike similar amendments to ss.51(1)(c) and (d), these amendments do not use the terminology “reproduction” as only the right to copy subsists in sound recordings and films rather than the right of reproduction.  Importantly, however, the term “copying” is defined by new s.21(6) (see Item 25) in relation to sound recordings and films to include conversion into or from a digital or other electronic machine-readable form.

Item 92.    After subsection 110B(2)

164.  Item 92 inserts new ss.110B(2A) and (2B).  Currently, s.110B provides an exception for the copying of sound recordings and films for preservation and other purposes.  Subsections 110B(2A) and (2B) implement the Government’s decision to extend the operation of s.110B so that libraries and archives are able to exercise the new communication right in relation to copyright material held in their collections for preservation and other purposes. 

165.  New s.110B(2A) will enable libraries and archives to exercise the communication right in relation to sound recordings and films in their collections that have been digitised pursuant to ss.110B(1) and (2), relying on the expanded meaning of copying in new s.21(6) (see Item 25).  This provision will enable libraries and archives to provide material online within the premises to officers of the library or archives without infringing copyright.  This exception therefore does not extend to communication to the general public.

166.  New s.110B(2B) will enable libraries and archives to communicate copies of sound recordings and films in their collections to other libraries and archives for the purposes of research.  This provision will enable libraries and archives to provide this material online to be accessed from a computer installed within the premises of the other library or archives.  This exception does not extend to communication to the general public.  It is intended to be limited to exceptions to infringement of the communication right where films and sound recordings are communicated for the purposes of research being undertaken in other libraries and archives.

167.  The heading of s.110B is consequentially amended to read “Copying and communicating sound recordings and cinematograph films for preservation and other purposes.”

Item 93.    Subsection 110B(4)

168.  Item 93 amends s.110B(4) by omitting the words “of the copy” and substituting the words “or communication of the copy”.  The amendment is a consequence of the extension of s.110B to the new right of communication in relation to sound recordings and cinematograph films for preservation and other purposes.

Item 93A.   After section 110B

169.  Item 93A inserts a new s. 110C (Making a copy of a sound recording or cinematograph film for the purpose of simulcasting).  The new section is intended to ensure that broadcasters who are required to simulcast under Schedules 2 and 4 of the Broadcasting Services Act 1992, or future digital broadcasting legislation, do not infringe copyright in a sound recording or cinematograph film where a copy of the sound recording or cinematograph film is made solely for the purposes of simulcasting in digital format.  The exception only applies if the sound recording or cinematograph film from which the copy is made is in analog form.

170.  Subsection 110C(1) provides a specific exception from infringement for copying a sound recording or cinematograph film where a broadcast of a sound recording or cinematograph film would not be an infringement, but the copying from an analog format to a digital format would be an infringement.  The exception is limited to copies made solely for the purposes of simulcasting as required by the Broadcasting Services Act 1992 or future digital broadcasting legislation.

171.  Subsection 110C(2) provides that the exception in s. 110C(1) does not apply if the copy of the sound recording or cinematograph film is used for a purpose other than the non-infringing simulcast of the sound recording or cinematograph film, or further copying of the sound recording or cinematograph film for the purposes of further non-infringing simulcasting.

172.  Subsection 110C(3) provides that the exception in s.110C(1) does not apply unless all copies of the film or sound recording are destroyed by the prescribed date.  The effect of this amendment is that a broadcaster can continue to use a copy of a film or sound recording for the purpose of simulcasting whilst the requirements in s.110C(1) remain in force.

173.  Subsection 110C(4) provides that the regulations may prescribe different relevant dates in relation to different classes of films or sound recordings.  This amendment is intended to cover the situation if simulcasting is required under different legislative regimes.

Item 94.    After section 111

174.  Item 94 inserts a new s.111A (“Temporary copy made in the course of communication”) that provides an exception to infringement for temporary copies made in the course of making or receiving a communication.  It is similar in operation and intent to new s.43A (see Item 45) which provides an exception to infringement for temporary copies made of works in the course of communication.

175.  New s.111A implements the Government’s decision to exclude from the scope of the existing right to copy, temporary copies made in the course of the technical process of making or receiving an electronic communication.  The effect of the provision is that temporary copies of audio-visual items that are made as part of the technical process of making or receiving a communication will not infringe the copyright in that subject-matter.  For example, copies made by the process of certain forms of caching will not infringe the existing right to copy.

176.  New s.111A(2) provides that the maker of a communication that is itself an infringement of copyright is not able to rely on the exception provided in new s.111A(1).

Item 95.    After section 112D

177.  Item 95 inserts a new s.112E  (“Communication by use of certain facilities”).  New s.112E has the effect of expressly limiting the authorisation liability of persons who provide facilities for the making of, or facilitating the making of, communications.  The section provides that such persons are not taken to have authorised the infringement of copyright in an audio-visual item merely because another person has used the facilities to engage in copyright infringement.  This is consistent with Item 42.

Item 96.    Part V (heading)

178.  Item 96 repeals the heading of Part V (ie, “Remedies for infringements of copyright”) and substitutes the heading “Remedies and offences”.  This amendment reflects the fact that Part V includes both civil remedies and criminal offences in relation to copyright infringements.

Item 96A.   Paragraph 115(4)(b)

179.  Item 96A repeals s.115(4)(b) of the Act, and substitutes a new  s.115(4)(b), which introduces an additional factor to which a court should have regard in assessing whether additional damages should be awarded for copyright infringement.  The additional factor to be specifically considered is whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form.  This would include the first digitisation of a work or other subject-matter.

Item 97.    Paragraph 116(1)(b)

180.  Item 97 amends s.116(1)(b) by inserting the words “(including a circumvention device)” after the word “device”.  This amendment is a consequence of the inclusion of new actions in relation to circumvention devices that are provided by Item 98.  The effect of the amendment is to clarify that a copyright owner may bring an action for conversion or detention in relation to any circumvention device used or intended to be used for making infringing copies.  “Circumvention device” is defined by Item 4.

Item 98.    After section 116

181.  Item 98 inserts new Division 2A (“Actions in relation to circumvention devices and electronic rights management information”) that provides civil remedies in relation to circumvention devices and services and electronic rights management information (RMI).  These new provisions are intended to provide appropriate measures for the enforcement of copyright in the digital environment.  The new enforcement measures will provide effective civil remedies against the abuse of technological copyright protection measures and against deliberate tampering with RMI.  The amendments provide copyright owners with new civil remedies against persons who make, commercially deal in, import, advertise, market or make available online devices, or provide services, used to circumvent technological copyright protection measures.  The actual use of circumvention devices and services is not specifically proscribed (although note the operation of the amended s.116(1)(b) (Item 97)).  They will also provide new civil remedies against persons who intentionally remove or alter RMI and deal in copies of works and other subject-matter so tampered with.  RMI typically includes details about the copyright owner and the terms and conditions of use of the material and is electronically attached to the copyright material. 

182.  These provisions will operate to provide copyright owners and their licensees with an effective means of enforcing their rights in the online environment whilst simultaneously allowing for the operation of some exceptions to the exclusive rights of copyright owners.  In this way, the provisions are intended to strike a fair balance between the rights of copyright owners and the rights of copyright users.  Corresponding criminal sanctions are introduced by Items 100 and 101. 

183.  The amendments reflect obligations in both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  These amendments are intended to ensure that Australia provides adequate legal protection and effective legal remedies to comply with the technological measures obligations and RMI obligations in the new WIPO treaties. 

New s.116A - Importation, manufacture etc. of circumvention device and provision etc. of circumvention service

184.  New s.116A provides copyright owners or licensees with civil actions (in accordance with s.116A(5)) against persons who make, deal in, import or make available online devices, or provide services, used to circumvent technological protection measures designed to protect their copyright material.  The provision is extended to copyright owners’ licensees who may use technological protection measures to protect copyright material.  It will include situations where an owner of copyright material licenses a website proprietor to place his or her material on a website and the website proprietor uses a technological protection measure to protect the material. 

185.  New s.116A(1) provides a list of proscribed actions relating to circumvention devices and services that will form the basis for an action by a copyright owner or licensee under this section.  Such activities are only proscribed where they are done without the permission of the owner or licensee of the copyright material (s.116A(1)(b)).  Paragraph 116A(1)(a) provides for the application of the subsection to works and subject-matter other than works that are protected by a  technological protection measure.   “Technological protection measure” is defined under s.10(1) (see Item 15B).  “Circumvention device” is also defined under s.10(1) (see Item 4), as is “circumvention service” (see Item 5).

186.  New s.116A(1)(b)(i) proscribes the making of a device that is capable of circumventing, or facilitating the circumvention of, a technological protection measure.  New s.116A(1)(b)(ii) proscribes the commercial dealing in such a device, includes selling, letting for hire, offering or exposing for sale or hire or otherwise promoting, advertising or marketing the device.  New s.116A(1)(b)(iii) proscribes the distribution of circumvention devices in tangible form for the purpose of trade, or for any other purpose that will prejudicially affect the owner of the copyright.  This proscription would include, for example, the distribution of circumvention devices on disc.  New s.116A(1)(b)(iv) proscribes exhibiting a circumvention device in public by way of trade.  New s.116A(1)(b)(v) proscribes the importation of circumvention devices for the purposes of commercial dealing, distribution or exhibition.  New s.116A(1)(b)(vi) proscribes the making available online of a circumvention device to the extent that the interests of the copyright owner are affected prejudicially.  This is intended to provide a remedy against a person who, for example, uploads such a device onto a server connected to the Internet and advertises it as freeware.  New s.116A(1)(b)(vii) proscribes the provision, promotion, advertising or marketing of circumvention services. 

187.  New s.116A(1)(c) provides that the section applies where the defendant knew, or ought reasonably to have known, that the circumvention device or service would be used to circumvent, or facilitate the circumvention of, a technological protection measure. 

188.  New s.116A(2) provides a specific exception to the operation of the enforcement measure provisions in s.116A.  The exception provides that this provision does not apply to anything lawfully done for the purposes of law enforcement or in the interests of national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory.

189.  New ss.116A(3) and (4) provide specific exceptions to the operation of the enforcement measures in s.116A where the circumvention device or service is used for a permitted purpose.  This has the effect of allowing some legitimate manufacture, dealing, advertising supply etc, of such devices and services in relation to specific exceptions to copyright owners’ exclusive rights.  These permitted purpose exceptions are listed as ss.47D, 47E, 47F, 48A, 49, 50, 51A, 183 and Part VB of the Act (see s.116A(7)(b)).

190.  The new s.116A(3) provides that s.116A does not apply in relation to the supply of a circumvention device or service to a person for a permitted purpose if the person is a qualified person and provides the supplier with a signed declaration.  The matters to be provided in a declaration are specified in s.116A(3)(i) - (vi) and are the person’s name and address, the basis on which they are a qualified person, the name and address of the supplier, a statement that the device or service is to be used for a permitted purpose, and identification of that purpose by reference to a specific section of the Act.  The declaration must also include a statement that the work or other subject - matter in relation to which the device or service is required is not readily available in a form not protected by a technological protection measure. 

191.  New s.116A(4) provides that s.116A does not apply in relation to the manufacture or importation of a circumvention device for use for a permitted purpose in relation to a work or other subject matter that is not readily available in a form not protected by a technological protection measure, or for supply for a permitted purpose.

192.  One of the factors which a person must declare or ascertain before accessing, or manufacturing or importing a circumvention device or service, is that the work or other subject - matter that they wish to access is not readily available in a form not protected by a technological protection measure.  New s.116(4A) clarifies that a work or other subject - matter is taken not to be readily available if it is not available in a form that lets a person do an act in relation to it that is not a copyright infringement as a result of one of the permitted purpose exceptions.

 193. New s.116A(5) creates a civil cause of action under new s.116A for the owner or licensee of the copyright against the person who does any of the acts listed under new s.116A(1)(b).

194.  New s.116A(6) provides the onus of proof in relation to the defendant’s state of mind for an action arising under new s.116A.  This provision creates a presumption that the defendant knew, or ought reasonably to have known, that a circumvention device or service would be used to circumvent, or facilitate the circumvention of, an effective technological protection measure.  The onus is on the defendant to prove that this presumption is false.

195.  New s.116A(7) provides what are permitted purposes under this section.  Under new s.116A(7)(a), a circumvention device or service is taken to be used for a permitted purpose if it is used for the purpose of doing an act that subsists in the copyright in the work or other subject-matter. 

196.  New s.116A(7)(b) provides that some existing exceptions in the Act will be permitted purposes in relation to circumvention devices and services.  This implements the Government’s decision to allow some legitimate manufacture, dealings in, etc of such devices and services.  Permitted purposes include reproducing computer programs to make interoperable products, to correct errors and for security testing under ss.47D, 47E and 47F.  Other permitted purposes rely on the exceptions for libraries and archives (under ss.49, 50 and 51A), Parliamentary libraries (s.48A), educational institutions and institutions assisting persons with a print or intellectual disability (under Part VB).  A further permitted purpose is the use of copyright material for the services of the Crown (under s.183).  This will facilitate the Crown being able to use copyright material under its statutory licence where such material has been protected by a technological protection measure.  As this use is remunerated, it will not have a prejudicial impact on the owners of copyright in the material. 

197.  The proposed enforcement measure provisions which provide civil remedies and criminal sanctions against the manufacture of, and the dealing in, circumvention devices and services (ss.116A, 132(5A) and 132(5B), Items 98 and 100 of the Bill) are designed to provide copyright owners with effective tools against online piracy. These provisions however are not intended to operate so as to make computer system administrators liable when acting in the proper pursuit of their functions. That is, where they undertake activities that do not result in the infringement of copyright and which are within the scope of the permitted purpose exemptions (ss.116A(7) and 132(5H), Items 98 and 100 of the Bill).

198.  New s.116A(8) provides new definitions of “qualified person” and “supply” for the purposes of new s.116A.  “Qualified person” means a person entitled to reproduce a computer program under ss.47D, 47E and 47F, an authorised officer for the purposes of ss.48A, 49, 50 and 51A, a person authorised in writing by the Commonwealth or a State for the purposes of s.183, or a person authorised in writing by a body administering an institution for the purposes of Part VB of the Act.

199.  New s.116A(8) also provides that “supply” means to sell, let for hire, distribute or make available online a circumvention device.  “Supply” also means  to provide a circumvention service.  This term is used in the exceptions created by new ss.116A(3) and (4). 

200.  New s.116A(9) states that the defendant bears the burden of establishing the elements of the permitted purposes exemption provided in s.116A(3), (4) and (4A), such as the matters contained in a declaration.  These are matters that would be peculiarly within the defendant’s knowledge.  This provision applies only to the civil remedies in the Bill.

New s.116B - Removal or alteration of electronic rights management information

201.  New s.116B provides copyright owners with civil remedies against persons who intentionally remove or alter RMI.  As with new s.116A, these civil remedies are extended to licensees of copyright owners.

202.  New s.116B(1) sets out the proscribed actions relating to RMI that will form the basis for an action by a copyright owner or licensee.  New s.116B(1)(a) proscribes the removal or alteration of RMI attached to a copy of a work or other subject-matter in which copyright subsists.  New s.116B(1)(b) provides that for a cause of action to exist, such removal or alteration of information must be done without the permission of the owner or licensee of the copyright.  New s.116B(1)(c) provides what state of mind the defendant must have to create a cause of action arising under new s.116B, namely that the defendant knew, or ought reasonably to have known, that the removal or alteration of the information would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter.

203.  New s.116B(2) creates a civil cause of action under new s.116B for the owner or licensee of the copyright against the person who does any of the acts listed under new s.116B(1).

204.  New s.116B(3) provides the onus of proof in relation to the defendant’s state of mind for an action arising under new s.116B.  The provision creates a presumption that the defendant knew, or ought reasonably to have known, that the removal or alteration of the RMI would facilitate or conceal an infringement of copyright.  The onus is on the defendant to prove that this presumption is false.

New s.116C - Commercial dealings etc. with works whose electronic rights management information is removed or altered

205.  New s.116C provides copyright owners with civil remedies against persons who distribute for the purposes of trade, import and communicate copies of works or other subject-matter whose RMI has been removed or altered.  As with the new s.116A, these civil remedies are extended to licensees of copyright owners.

206.  New s.116C(1) sets out the elements of the cause of action in relation to dealings with works or other subject-matter from which RMI has been removed without the permission of the owner or licensee of the copyright.  New ss.116C(1)(a) and (b) proscribe the commercial distribution, commercial importation or communication to the public of a copy of a work or other subject-matter from which attached RMI has been removed or altered without the permission of the copyright owner or licensee.  New s.116C(1)(c) provides that the person dealing with or communicating such a work must know that the removal or alteration of the information was done without the permission of the owner or licensee of the copyright.  New s.116C(1)(d) provides that the defendant must have also known, or ought reasonably to have known, that the act referred to in s.116C(1)(a) that was done by the person, would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter.  The state of mind required for a cause of action under s.116C is therefore provided by both the new ss.116(1)(c) and (d).

207.  The requirement that the acts proscribed in s.116C(1)(a)(i)-(iii) take place without the permission of the owner or licensee of the copyright is intended to ensure that s.116C complies with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Phonograms and Performances Treaty.  These articles require that legislation implemented to govern electronic rights management information provide that such information not be altered or removed “without authority”, and that any importation, distribution or communication proscribed in legislation be “without authority”.  A similar provision in respect of criminal offences is contained in Item 100 of the Bill.

208.  New s.116C(2) creates a civil cause of action under new s.116C for the owner or licensee of copyright material against the person who does the act(s) listed under new s.116C(1).

209.  New s.116C(3) provides the onus of proof in relation to the defendant’s state of mind for an action arising under new s.116C.  This provision creates a presumption that the defendant knew that the RMI attached to the copy of the work or other subject-matter had been removed or altered.  Further, it is presumed that the defendant knew, or ought reasonably to have known, that the doing of the act  would have the effect of inducing, enabling facilitating or concealing an infringement of the copyright in the work or other subject-matter.  The onus is on the defendant to prove that these presumptions are false.

New s.116D - Remedies in actions under sections 116A, 116B and 116C

210.  New s.116D provides remedies for the actions created under new ss.116A, 116B and 116C.  Subsection 116D(1) provides that in an action under any of these sections, the court may grant an injunction and either damages or an account of profits.  New s.116D(2) provides that the court may award additional punitive damages having regard to relevant matters including the flagrancy of the defendant’s actions and any resulting benefit accrued to the defendant.

Item 100.  Subsection 132(5A)

211.  Item 100 repeals s.132(5A) of the Act, and creates new criminal offences in relation to: providing or advertising circumvention services; making, commercially dealing, importing, advertising or making available online circumvention devices; tampering with or altering RMI; and dealing in copies of works and other subject-matter so tampered with.  Corresponding civil actions are introduced by Item 98.  The actual use of a circumvention device is not proscribed by these amendments. 

212.  The use of the term “reckless” throughout Item 100 is consistent with the Government’s policy in relation to enforcement measure provisions.  Guidance on the meaning of “recklessness” is provided by clause 5.4 of the Criminal Code Act 1995 (Cth). 

213.  The amendments reflect obligations in both the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  These amendments are intended to ensure that Australia provides adequate legal protection and effective legal remedies to comply with the technological measures obligations and RMI obligations in the new WIPO treaties. 

214.  New s.132(5A) proscribes the provision, or promotion, advertising or marketing by way of trade, of a circumvention service if the defendant knows, or is reckless as to whether, the service will be used to circumvent, or facilitate the circumvention of, a technological protection measure. 

215.  New s.132(5B) proscribes the making, commercial dealing, distribution, exhibition, importation for certain purposes, promotion, advertising or marketing and making available online of a circumvention device.  The required mental element for this offence is that the defendant knows, or is reckless as to whether, the device will be used to circumvent, or facilitate the circumvention of, a technological protection measure. 

216.  New s.132(5C) proscribes the removal or alteration of any RMI attached to a copy of a work or other subject-matter in which copyright subsists, except with the permission of the copyright owner or licensee.  The requisite mental element is that the defendant knows, or is reckless as to whether, the removal or alteration of the information would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter. 

217.  New s.132(5D) proscribes the commercial distribution, commercial importation or communication to the public of a copy of a work or other subject-matter, without the permission of the copyright owner or the licensee of the copyright, if any attached RMI has been removed or altered.  The first requisite mental element is that the defendant knows whether the RMI has been removed or altered without the permission of the copyright owner or licensee.  The second requisite mental element is that the defendant knows, or is reckless as to whether, the doing of the act referred to in paragraphs (a), (b) or (c), will induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter. 

218.  New s.132(5E) provides a specific exception from the offences in new ss.132(5A) and (5B) that deal with circumvention services and devices.  The exception provides that these offences do not apply to anything lawfully done for the purposes of law enforcement or in the interests of national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory.

219.  New s.132(5F) provides a specific exception to offences in new ss.132(5A) and (5B) where the circumvention device or service is supplied for use by a person for a permitted purpose.  New s.132(5F) provides that it will not be an offence under ss.132(5A) and (5B) to supply a circumvention device or service for a permitted purpose if, before or at the time of supply, the supplier receives a signed declaration from the person requiring the device or service. 

220.  The matters to be included in a declaration are provided in s.132(5F)(b)(i) - (vi).  They are the person’s name and address, the basis on which they are a qualified person, the name and address of the supplier, a statement that the device or service is to be used for a permitted purpose, and identification of that purpose by reference to a specific section of the Act.  The declaration must also include a statement that the work or other subject - matter in relation to which the device or service is required is not readily available in a form not protected by a technological protection measure. 

221.  New s.132(5G) provides that it will not be an offence under new s.132(5B) to make or import a circumvention device for use only for a permitted purpose relating to a work or other subject - matter that is not readily available in a form not protected by a technological protection measure, or to enable a person to supply the device for use only for a permitted purpose.  Permitted purposes are provided by s.132(5H).  The term “supply” is defined in new s.132(9) (see Item 101A).

222.  Section 132(5GA) clarifies that a work or other subject - matter is taken not to be readily available if it is not available in a form that lets a person do an act in relation to it that is not a copyright infringement as a result of one of the permitted purpose exceptions.

223.  New s.132(5H) provides what are taken to be permitted purposes under this section.  Under s.132(5H)(a), a circumvention device or service is taken to be used for a permitted purpose if it is used for the purpose of doing an act that subsists in the copyright in the work or other subject-matter.  Paragraph 132(5H)(b) provides that there will be two types of permitted purposes.  First, a proscribed act undertaken with the permission of the copyright owner or licensee will constitute a permitted purpose.  Second, the paragraph identifies specific existing exceptions in the Act which will be permitted purposes in relation to circumvention devices and services.

224.  Section 132(5H)(b) states that the permitted purposes are the reproduction of computer programs to make interoperable products, to correct errors and for security testing under ss.47D, 47E and 47F, exceptions for libraries and archives (under ss.49, 50 and 51A), Parliamentary libraries (s.48A), and the statutory licences for educational institutions and institutions assisting persons with a print or intellectual disability (under Part VB).  A further permitted purpose is the use of copyright material for the services of the Crown (under s.183). 

225.  The proposed enforcement measure provisions which provide civil remedies and criminal sanctions against the manufacture of, and the dealing in, circumvention devices and services (ss.116A, 132(5A) and 132(5B), Items 98 and 100 of the Bill) are designed to provide copyright owners with effective tools against online piracy. These provisions, however, are not intended to operate so as to make computer system administrators liable when acting in the proper pursuit of their functions, that is, where they undertake activities that do not result in the infringement of copyright and which are within the scope of the permitted purpose exemptions (ss.116A(7) and 132(5H), Items 98 and 100 of the Bill).

226.  The new s.132(5J) provides for the evidential burden that is imposed on the defendant in respect of the exceptions provided under ss.132(5E), (5F) and (5G).  It is believed that the matters referred to in these subsections will be peculiarly within the knowledge of the defendant, and will be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish.  Subsection 132(5J) therefore provides that the only burden of proof the defendant bears in respect of ss.132(5E), (5F) and (5G) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act was done, or matter in question existed.

Item 100A.  After subsection 132(6)

227.  Item 100A inserts new ss.132(6AA) and 132(6AB). 

228.  New s.132(6AA) provides that where a person contravenes ss.132(1), (2) or (2A) of the Act, and the article to which the contravention relates is an infringing copy made by converting the work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form, the person is guilty of an offence.  The maximum penalty that applies to this offence is 850 penalty units and/or 5 years imprisonment.  This provision is intended to operate so that where an offence involves the digitisation of copyright material, a higher monetary penalty (but not an increased prison term) may be imposed.

229.  New s.132(6AB) provides that where a person contravenes ss.132(1), (2) or (2A) of the Act, and s.132(6AA) does not apply (ie, the contravention does not involve the conversion of a work or other subject-matter from hardcopy or analog form into digital or other electronic machine-readable form), the maximum penalty for that offence is 550 penalty units and/or imprisonment for 5 years.  This maintains the current penalties provided by the Act for offences under s.132(1), (2) and (2A) where the offence does not involve the digitisation of copyright material.

230.  The legislative note to s.132(6A), which clarifies that a corporation may be fined up to 5 times the amount of the maximum fine imposed, will also apply to new ss.132(6AA) and 132(6AB).

Item 101. Subsection 132(6A)

231.  Item 101 amends s.132(6A) of the Act by removing the phrase “(1), (2), (2A), (3), (5) or (5AA)” and substituting “(3), (5), (5AA), (5A), (5B), (5C) or (5D)”.  This is a consequence of the introduction of an increased monetary penalty for offences involving the digitisation of a work or other subject-matter (see Item 100A).

232.  The effect of this provision is to provide that a person who contravenes ss.132(3), 132(5) or 132(5AA) of the Act or new ss.132(5A) - 132(5D) is guilty of an offence punishable by a maximum penalty of 550 penalty units and/or 5 years imprisonment. 

Item 101A.  Subsection 132(9)

233.  Item 101A repeals s.132(9) of the Act and inserts a new s.132(9) which adds new definitions to the existing definition of “place of public entertainment”.  It introduces for the purposes of s.132 of the Act new definitions of “article”, “distribute”, “qualified person” and “supply”.

234.  New s.132(9) provides that for the purposes of s.132 of the Act, “article” includes a reproduction or copy of a work or other subject-matter in electronic form.  The amendment is not intended to affect the interpretation of the expression “article” in other provisions of the Act.  The effect of the new definition is to clarify that the term “article” includes an article in electronic form.  It also provides that for the purposes of the section, “distribute” includes distribute by way of communication.  The effect of this definition is to ensure that the offences in s.132 of the Act which relate to distribution apply both to the making available and the electronic transmission of infringing copies in electronic form. 

235.  A new definition of “qualified person” is also introduced.  “Qualified person” means a person entitled to reproduce a computer program under ss.47D, 47E and 47F, an authorised officer for the purposes of ss.48A, 49, 50 and 51A, a person authorised in writing by the Commonwealth or a State for the purposes of s.183, or a person authorised in writing by a body administering an institution for the purposes of Part VB of the Act. 

236.  Subsection 132(9) also provides a definition of “supply”, which means to sell, let for hire, distribute or make available online a circumvention device.  It also means to provide a circumvention service. This term is used in ss.132(5F) and 132(5G).

Item 102.  Subsection 133(4)

237.  Item 102 amends s.133(4) to insert after the words “appears to the court” the words “to be a circumvention device used or intended to be used in contravention of that section, or ”.  This amendment is a consequence of the new offences created by Item 100.  The effect of the amendment is that where a person is charged with an offence under s.132, the court hearing the matter may order a circumvention device used or intended to be used in contravention of s.132 be destroyed or delivered up to the copyright owner or otherwise dealt with as the court sees fit.

Item 102A.  Section 134

238.  Item 102A inserts into s.134 of the Act after the words “of a device”, the words “(including a circumvention device)”.  This clarifies that the limitation of actions in s.134 of the Act includes actions in relation to circumvention devices, which is consistent with amendments to s.116(1)(b) of the Act effected by Item 97.

Item 103.  At the end of section 134

239.  Item 103 amends s.134 to insert new s.134(2) that limits the time in which actions can be brought under new ss.116A, 116B and 116C to 6 years after the act was done.  This amendment is a consequence of the insertion of new ss.116A, 116B and 116C by Item 98. 

Item 104.  After Part V

240.  Item 104 inserts new Part VAA that provides for civil remedies and criminal offences against the manufacture, importation, sale and other dealings with devices that facilitate unauthorised access to encoded broadcasts.  For example, these sections will prohibit commercial dealings in devices designed to facilitate the unauthorised reception of pay television broadcasts.  These new sections do not prohibit the personal and non-commercial use of broadcast decoding devices.  However a civil remedy is provided for the use of a decoding device for a commercial purpose.  This approach is taken as it is the Government’s view that the main threat to subscription broadcasters is not the single act of unauthorised reception by individuals, but rather the preparatory acts carried out by commercial companies, and the unauthorised use of such devices to promote commercial activities.  Elements of this Part are drawn from the European Council Directive on the legal protection of services based on, or consisting of, conditional access .

New Division 1 - Preliminary

New s.135AL - Definitions

241.  New s.135AL provides definitions for a number of terms used in the new Part VAA.  “Action” is defined to mean a proceeding of a civil nature between parties.  The provision makes clear that “action” includes “counterclaim”.

242.  “Broadcast decoding device” is defined to mean a device that is designed or adapted to enable a person to gain access to an encoded broadcast by circumventing, or facilitating the circumvention of, the technical means or arrangements that protect access in an intelligible form to the broadcast.  Such a device will enable such access without the authorisation of the broadcaster.  The definition includes devices that are computer programs. 

243.  “Broadcaster” is defined to mean a person who makes an encoded broadcast.

244.  “Encoded broadcast” is defined to mean a broadcast that is made available only to persons who have the prior authorisation of the broadcaster, and only on the payment of subscription fees (whether periodically or otherwise), or a broadcast (other than a radio broadcast or a broadcast to which paragraph (a) applies) that is delivered by a commercial or national broadcasting service within the meaning of the Broadcasting Services Act 1992 .  Further, access to the broadcast in an intelligible form must be protected by a technical measure or arrangement including a computer program. 

New s.135AM - Counterclaim

245.  New s.135AM provides that when the provisions of this Part are applied to a counterclaim, the references to the defendant are to be read as references to the plaintiff.

New Division 2 - Action in relation to the manufacture and dealing with broadcast decoding devices

New s.135AN - Actions in relation to broadcast decoding devices

246.  New s.135AN provides broadcasters with civil actions against persons who manufacture, deal in, import, distribute, or make available online broadcast decoding devices.

247.  New s.135AN(1) provides a list of proscribed actions in relation to broadcast decoding devices which, when done without the permission of the broadcaster will form the basis for an action by a broadcaster.  Subparagraph 135AN(1)(b)(i) proscribes the making of a broadcast decoding device.  Subparagraph 135AN(1)(b)(ii) proscribes the commercial dealing in such a device, including selling, letting for hire and offering or exposing for sale or hire.  Subparagraph 135AN(1)(b)(iii) proscribes the distribution of broadcast decoding devices in tangible form for the purpose of trade, or for any other purpose that will prejudicially affect the broadcaster.  Subparagraph 135AN(1)(b)(iv) proscribes the exhibition of a broadcast decoding device in public by way of trade.  Subparagraph 135AN(1)(b)(v) proscribes the importation of a broadcast decoding device for the purposes of commercial dealing, distribution or exhibition.  Subparagraph 135AN(1)(b)(vi) proscribes the making available online of a broadcast decoding device to an extent that will prejudicially affect the broadcaster.  This is intended to include the situation where, for example, a person uploads such a device onto a server connected to the Internet and advertises it as freeware.

248.  Paragraph 135AN(1)(c) provides the state of mind the defendant must have to create a cause of action arising under s.135AN, namely that the defendant knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. 

249.  Subsection 135AN(2) provides a specific exception to the operation of s.135AN(1) in relation to anything lawfully done for the purposes of law enforcement or national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory.

250.  Subsection 135AN(3) creates a civil cause of action under s.135AN for the broadcaster against the person who does any of the acts listed under s.135AN(1).  This provision is subject to s.135AN(8) which creates a time limit of 6 years within which actions may be brought.

251.  Subsections 135AN(4), (5) and (6) provide remedies for the actions created under the section.  Subsection (4) provides that in an action under s.135AN, the relief that a court may grant includes an injunction and either damages or an account of profits. 

252.  Subsection 135AN(5) provides that the court may award additional punitive damages having regard to relevant matters including the flagrancy of the defendant’s actions and any resulting benefit accrued to the defendant.

253.  Subsection 135AN(6) provides that the court may, having regard to all relevant matters, make an order to direct that the relevant broadcasting decoding device be destroyed or otherwise dealt with as specified in the order.  It may be that the court would order, in appropriate circumstances, that the relevant broadcast decoding device be delivered to the relevant broadcaster or to a third party who has the best claim to ownership of the device.

254.  Subsection 135AN(7) provides the onus of proof in relation to the defendant’s state of mind for an action arising under s.135AN.  This provision creates a presumption that the defendant knew, or ought reasonably to have known, that the broadcast decoding device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.  The onus is on the defendant to prove that this presumption is false.

255.  Subsection 135AN(8) limits the time in which actions can be brought under s.135AN to 6 years after the act was done.  This provision is consistent with the time limits imposed on civil actions by s.134.

New s.135ANA - Actions in relation to the use of broadcast decoding devices for commercial purposes

256.  New s.135ANA introduces a civil remedy in relation to the use of a broadcast decoding device in order to receive an encoded broadcast for commercial purposes.  It is intended that new s.135ANA will protect the commercial interests of copyright owners and focus the remedy on public and commercial activities rather than use by individuals.  The new section is intended to include a remedy against the use of a decoding device to allow reception in a premises such as a hotel or pub even though no payment is required from patrons to watch the broadcast.

257.  Subsection 135ANA(2) provides a specific exception to the operation of s.135ANA(1) in relation to anything lawfully done for the purposes of law enforcement or national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory. 

258.  Subsection 135ANA(3) creates a civil cause of action under s.135AN for a broadcaster against a person who does any of the acts listed in s.135ANA(1).  This provision is subject to s.135ANA(7), which creates a time limit of 6 years within which actions may be brought.

259.  Subsections 135ANA(4), (5) and (6) provide remedies for the actions created under s.135ANA.  Subsection (4) provides that in an action under s.135ANA, the relief that a court may grant includes an injunction, and either damages or an account of profits.

260.  Subsection 135ANA(5) provides that the court may award additional punitive damages, having regard to relevant matters including the flagrancy of the defendant’s actions and any resulting benefit accrued to the defendant.

261.  Subsection 135ANA(6) provides that the court may, having regard to all relevant matters, make an order to direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order.  For example,  the court may order, in appropriate circumstances, that the relevant broadcast decoding device be delivered to the relevant broadcaster.

262.  Subsection 135ANA(7) limits the time in which actions can be brought under s.135ANA to 6 years after the act was done.  This provision is consistent with the time limits imposed on civil actions by s.134 of the Act, and s.135AN(8).

New Division 3 - Jurisdiction and appeals

263.  The new Division 3 sets up the jurisdiction and appeals relating to the enforcement of the new Part VAA.

New s.135AP - Exercise of jurisdiction

264.  New s.135AP provides that the jurisdiction of the Supreme Court of a State or Territory in an action under Part VAA is to be exercised by a single Judge of the Court.

New s.135AQ - Appeals

265.  New s.135AQ(1) provides that a decision of a court of a State or Territory under Part VAA is final and conclusive.  This is subject to the qualification in the new s.135AQ(2) that an appeal lies from such a decision to the Federal Court of Australia or, by special leave, to the High Court.

New s.135AR - Jurisdiction of Federal Court of Australia

266.  New s.135AR confers jurisdiction on the Federal Court of Australia in relation to actions under Part VAA.

New Division 4 - Offences

New s.135AS - Offences

267.  New s.135AS provides offences against persons who manufacture, deal in, import, distribute, or make available online broadcast decoding devices.  The actual use of a broadcast decoding device is not proscribed by this section.  These offences are complemented by the civil remedies regarding the manufacture and other dealing with devices in s.135AN.  The use of the term “reckless” in s.135AS is consistent with the Government’s criminal law policy.  Guidance on the meaning of “recklessness” is provided by clause 5.4 of the Criminal Code Act 1995 (Cth). 

268.  New s.135AS(1) proscribes various acts that will, in combination with the mental element, constitute offences under this section.  Paragraph 135AS(1)(a) proscribes the making of a broadcast decoding device.  Paragraph 135AS(1)(b) proscribes the commercial dealing in such a device, including selling, letting for hire and offering or exposing for sale or hire.  Paragraph 135AS(1)(c) proscribes the distribution of a broadcast decoding device in tangible form with the intention of trading, or of engaging in any other activity that will prejudicially affect the  broadcaster.  Paragraph 135AS(1)(d) proscribes the exhibition of a broadcast decoding device in public by way of trade.  Paragraph 135AS(1)(e) proscribes the importation of a broadcast decoding device for the purposes of commercial dealing, distribution or exhibition.  Paragraph 135AS(1)(f) proscribes the making available online of a broadcast decoding device to an extent that will prejudicially affect the  broadcaster.  This is intended to include the situation where a person uploads such a device onto a server connected to the Internet and advertises it as freeware.

269.  The requisite mental element for these proscribed activities is that the defendant knew, or was reckless as to whether, the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.

270.  Subsection 135AS(2) provides a specific exception from the activities proscribed under s.135AS(1).  The exception provides that the section does not apply to anything lawfully done for the purposes of law enforcement or in the interests of national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory. 

271.  Subsection 135AS(3) provides for the evidential burden that is imposed on the defendant in respect of the exception provided under s.135AS(2).  It is believed that the matters referred to in these subsections will be peculiarly within the knowledge of the defendant, and will be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish.  Subsection 135AS(3) therefore provides that the only burden of proof the defendant bears in respect of s.135AS(2) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

272.  New s.135AS(4) provides that a person who contravenes subsection (1) is guilty of a summary offence punishable by a maximum of 5 years imprisonment and/or a maximum fine of 550 penalty units. 

New s.135AT - Prosecutions

273.  New s.135AT(1) provides that prosecutions for offences under s.135AS may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.

274.  New s.135AT(2) confers jurisdiction on the Federal Court of Australia to hear and determine prosecutions for offences against s.135AS.

New s.135AU - Destruction etc. of devices

275.  New s.135AU provides that where a person is charged with an offence under s.135AS, the court hearing the matter may order the destruction of an article in that person’s possession that appears to the court to be a broadcast decoding device.  This provision also permits the court to order such a device to be dealt with in any other way that the court thinks fit.  The provision applies whether or not the person is convicted of the offence with which he or she is charged.

Item 105.  Part VA (heading)

276.  Items 105 to 123 implement consequential amendments to Part VA where the reference to “transmission” is replaced by the broader reference to “broadcast”.  The definition of “broadcast” in s. 10(1) is to be broadened (see Item 1) to bring the definition in line with the wider definition of “broadcasting service” in the Broadcasting Services Act 1992 (BSA).  The definition of “broadcasting service” in the BSA covers, amongst other things, cable transmissions (such as cable TV).  The new definition of broadcast will therefore encompass the current meaning of “transmission” as defined in s.135A.

277.  The Part VA statutory licence is also extended to encompass the new right of communication to the public.  This will enable educational and other institutions to communicate broadcasts that they have copied, subject to the payment of equitable remuneration to the owners of copyright in the underlying material included in the broadcast.  The amendments to Part VA are consistent with the amendments to the Part VB statutory licence to provide for the reproduction and communication of works by educational and other institutions.

278.  Item 105 repeals the heading of Part VA and substitutes a new heading “Copying and communication of broadcasts by educational and other institutions”.  This amendment is a consequence of the replacement of the term “transmission” with the broadly defined term “broadcast” (see Item 107), and the extension of Part VA to the communication of broadcasts.

279.  The amendments to Part VA are also based upon a direct extension of the current records and sampling system to the communication right.  In addition, a more flexible “agreed system” is introduced for the copying and communication of broadcasts.  Under the agreed system the amount of equitable remuneration and the matters and processes constituting the system are based upon the agreement of the relevant parties, or failing such agreement, determination by the Copyright Tribunal.

Item 105A.  Section 135A

280.  Item 105A inserts a term “agreed notice” in s.135A of the Act.  The definition provides that an agreed notice is a remuneration notice that specifies the amount payable to a collecting society by an educational or other institution giving the notice, where the amount payable is to be assessed on the basis of an agreed system rather than a record or sampling based system.

Item 106.    Section 135A (definition of preview copy )

281.  Item 106 amends the definition of preview copy in s. 135A by omitting the word “transmission” and substituting the word “broadcast”.  This is a consequence of the replacement of the term “transmission” with the broadly defined term “broadcast” (see Item 105).

Item 107.    Section 135A (definition of transmission )

282.  Item 107 repeals the definition of “transmission”.  This definition is no longer required given the broad definition of “broadcast” inserted by Item 1.

Item 108.    Paragraph135B(a)

283.  Item 108 amends s.135B(a) to omit the term “transmission” wherever occurring and substitute the term “broadcast”.  The heading of s.135B is amended to read “Copies and communications of broadcasts”.   This is a consequence of the extension of Part VA to the communication of broadcasts and the replacement of the term “transmission” with the broadly defined term “broadcast” (see Item 105).

Item 108A.  Paragraph 135B(b)

284.  Item 108A repeals s.135B(b) of the Act and substitutes ss.135(b) and 135(c).  This item effectively replaces the term “transmission” in paragraph 135B(b) of the Act with the term “broadcast”.  The item also inserts a new s.135B(c), which provides that a reference to the communication of a copy of the broadcast is a reference to the communication of a copy of either the whole or part of a broadcast.

Item 108B.  Division 2 of Part VA (heading)

285.  Item 108B repeals the heading to Division 2 of Part VA and replaces it with “Division 2—Copying and Communication of Broadcasts”.  This is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109.    Subsection 135E(1)

286.  Item 109 amends s.135E(1) to omit the term “transmission” wherever occurring and substitute the term “broadcast”.  The heading of s.135E is amended to read “Copying and communication of broadcasts by educational institutions etc”.  This is a consequential amendment as a result of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109A.  Subsection 135E(1)

287.  Item 109A amends s.135E(1) of the Act by inserting the words “or communication” after the words “by the making”.  This Item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109B.  Paragraphs 135E(1)(b) and (c)

288.  Item 109B amends ss.135E(1)(b) and (c) of the Act by inserting the words “or communication” after the word “copy” whenever occurring.  This Item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109C.  Paragraph 135E(1)(d)

289.  Item 109C amends s.135E(1)(d) of the Act by repealing the paragraph and inserting a new s.135E(1)(d).  The effect of this Item is to include a reference to compliance with new s.135KA (see Item 116E) which provides notice requirements in respect of communications.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109D.  Subsection 135E(2)

290.  Item 109D amends s.135E(2) of the Act by omitting the words “copy of a transmission” and substituting the words “copy, or communication of a copy, of a broadcast”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 109E.  At the end of subsection 135E(2)

291.  Item 109E inserts at the end of s.135E(2) of the Act the words “or communication”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 110.    Subsections 135F(1) and (2)

292.  Item 110 amends ss.135F(1) and (2) to omit the term “transmission” wherever occurring and substitute the term “broadcast”.  This is a consequential amendment (see Item 105).

Item 110A.  At the end of subsection 135F

293.  Item 110A inserts a new s.135F(7).  Subsection 135F(7) extends the “Preview copies” provisions to the communication of preview copies.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 111.    Subsection 135G(1)

294.  Item 111 repeals s.135G(1) of the Act and substitutes a new s.135G(1).  New s.135G(1) extends the “Remuneration notices” provisions to the communication of copies of broadcasts.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 111A.   Subsection 135G(2)

295.  Item 111A amends s.135G(2) of the Act by omitting the words “or a sampling system” and substituting the words “, a sampling system or an agreed system”.  This item extends the requirements of s.135G of the Act to the new agreed system and is a consequence of the extension of Part VA to communication of copies of broadcasts (see Item 105).

Item 112.  Subsection 135H(1)

296.  Item 112 amends s.135H(1) of the Act by repealing subsection (1) and substituting a new subsection  (1), which extends the “Record notices” provisions in the Act to the communication of broadcasts.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105). 

Item 112A.  At the end of subsection 135H(1A)

297.  Item 112A amends s.135H(1A) of the Act by adding at the end of that subsection “and for the communication by, or on behalf of that body, of the broadcast”.  This is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 113.    Paragraph 135H(2)(a)

298.  Item 113 amends s.135H(2)(a) to omit the term “transmissions” and substitute the term “broadcasts”.  This is a consequential amendment (see Item 105).

Item 113A.  At the end of section 135H

299.  Item 113A inserts at the end of s.135H of the Act new subsection s (3), (4) and (5).  New s.135H(3) provides that if a broadcast has been copied and is communicated by being made available online for more than the prescribed period, the work will be deemed to have been copied and communicated again by being made available online for the next prescribed period.

300.  New s.135H(4) provides that in determining an amount of equitable remuneration under a records notice, the parties must take into account ss.135A(3)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for longer than the prescribed period.  Further, the subsection provides that the parties must have regard to such matters, if any, as are prescribed, and such other matters, if any, as are relevant in the circumstances.  If the parties cannot reach agreement as to the amount of equitable remuneration, the Copyright Tribunal must have regard to these factors.

301.  New s.135H(5) provides that the prescribed period for s.135H(3) is a default period of 12 months, or as otherwise agreed between the parties.

Item 114.  Subsection 135J(1)

302.  Item 114 amends s.135J(1) of the Act by repealing subsection (1) and substituting a new subsection (1), which extends the “Sampling notices” provisions to the communication of broadcasts.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 114A.  Subsection 135J(1A)

303.  Item 114A amends s.135J(1A) of the Act by omitting the words “transmissions made by or on behalf of that body” and substituting the words “broadcasts made by, or on behalf of that body and for communications by, or on behalf of that body, of such broadcasts”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 114B.  After subsection 135J(1A)

304.  Item 114B inserts a new s.135J(1B).  New s.135J(1B) provides that if a broadcast has been copied and is communicated by being made available online for more than the prescribed period, the work will be deemed to have been copied and communicated again by being made available online for the next prescribed period.

Item 114C.  Subsection 135J(2)

305.  Item 114C repeals s.135J(2) of the Act and substitutes a new s. 135(2).  The new s.135J(2) provides that in determining an amount of equitable remuneration under a sampling notice, the parties must take into account ss.135J(1B)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for longer than the prescribed period.  Further, the subsection provides that the parties must have regard to such matters, if any, as are prescribed, and such other matters, if any, as are relevant in the circumstances.  If the parties cannot reach agreement as to the amount of equitable remuneration, the Copyright Tribunal must have regard to these factors. 

Item 114D.  Subsection 135J(3)

306.  Item 114D amends s.135J(3) of the Act by omitting the words “of transmissions” and substituting the words “of broadcasts and the communication of those broadcasts”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 115.    Subsection 135J(5)

307.  Item 115 amends s.135J(5) of the Act by omitting the word “transmission” and substituting the words “broadcast, or communication of a copy of a broadcast,”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 115A.  At the end of section 135J

308.  Item 115A inserts a new s.135J(6) which provides that the prescribed period for the purposes of s.135J(1B) is 12 months, or as otherwise agreed between the parties. 

Item 115AB.  After section 135J

309.  Item 115AB inserts a new s.135JA (“Agreed notice”) after s.135J of the Act.  The amendment extends the statutory licence scheme to allow for an agreed system.  The agreed system is drafted broadly to ensure flexibility and enable it to encompass future technological developments.  The extended scheme is based upon agreement between the relevant parties (the administering body and the collecting society).

310.  New s.135JA(1) provides for the determination of the amount of equitable remuneration payable under an agreed notice for copies of broadcasts and communications of such broadcasts.  If an agreed notice is given by an administering body, the amount of equitable remuneration payable while the notice is in force is to be determined by agreement between the administering body and the collecting society.  If such an agreement cannot be reached, then either party may apply to the Copyright Tribunal to determine the amount.  The amount of equitable remuneration under the notice can be calculated on an annual basis or otherwise.

311.  New s.135JA(2) provides that if a determination has been made by the Tribunal under subsection (1), the administering body or collecting society can apply to the Tribunal after 12 months for a new determination under subsection  (1).

312.  New s.135JA(3) provides that the administering body and the relevant collecting society must agree on the matters and processes constituting an agreed system, and any other matters that are necessary or convenient to be assessed or taken into account for the purposes of the system.  If the administering body and the relevant collecting society cannot agree on these issues either party may apply to the Copyright Tribunal to determine the issues.

313.  New s.135JA(4) provides that where a broadcast has been copied and is communicated by being made available online for more than the prescribed period (12 months or another period if agreed), the work will be deemed to have been copied again and communicated by being made available online for the next prescribed period.

314.  New s.135JA(5) provides that in determining the amount of equitable remuneration under an agreed notice, the parties or Copyright Tribunal must take into account ss.135JA(4)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for more than the prescribed period.

315.  New s.135JA(6) provides that in determining an amount of equitable remuneration under an agreed notice, different amounts may be determined for the copying and communication of broadcasts undertaken by different institutions administered by the same administering body.

316.  New s.135JA(7) has the effect that if an agreed notice is in force, and an administering body does not comply with any requirements under s.135JA, then ss.135E(1) and 135F(1) of the Act do not apply and any copies and communications made under the section will be infringing copies and communications.

317.  New s.135JA(8) provides that the prescribed period for s.135JA(4) is a default period of 12 months, or as otherwise agreed between the parties.

Item 116.    Paragraph 135K(1)(a)

318.  Item 116 amends s.135K(1)(a) of the Act by omitting the words “of a transmission” and substituting the words “in analog form of a broadcast”.  The effect of this item is to limit the marking requirements in s.135K(1) of the Act to analog copies of broadcasts.

Item 116A.  Paragraph 135K(1)(b)

319.  Item 116A amends s.135K(1)(b) of the Act by omitting the word “transmission” and substituting the words “broadcast, and each communication of such a copy”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 116B.  Paragraph 135K(1)(c)

320.  Item 116B amends s.135K(1)(c) of the Act by inserting the words “or communication” after the word “copy”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 116C.  Subsection 135K(2)

321.  Item 116C amends s.135K(2) of the Act by omitting the words “For the purposes of subsection (1), a record of the copying of a transmission” and substituting the words “A record of the kind referred to in paragraph (1)(b):”.  This item is a consequence of the extension of Part VA to the communication of copies of broadcasts (see Item 105).

Item 116D.  Subsection 135K(3)

322.  Item 116D amends s.135K(3) of the Act by omitting the words “of a transmission” and substituting the words “in analog form of a broadcast”.  The effect of this item is to limit the marking requirements in s.135K(3) of the Act to analog copies of broadcasts.

Item 116E.  After section 135K

323.  Item 116E inserts after s.135K of the Act a new s.135KA (“Notice requirements in respect of communications”).  New s.135KA introduces notice requirements for the communication of copies of broadcasts. 

324.  New s.135KA(a) provides that where a communication of a copy of a broadcast is made under a remuneration notice, the administering body must provide a notice in relation to each communication except in such circumstances as are prescribed.  Such a notice must contain statements to the effect that the copyright material communicated might be subject to copyright protection, and that the communication has been made under a statutory licence under Part VA.  The notice must also contain other information or particulars (if any) as prescribed. 

325.  New s.135KA(b) provides that where a licensed communication is made while the remuneration notice is in force, the administering body shall take all reasonable steps to ensure that the communication can only be received or accessed by persons entitled to do so.

326.  New s.135KA(c) provides that the administering body must comply with any other prescribed requirements in relation to each communication made while the notice is in force.

Item 117.    Paragraph 135L(1)(a)

327.  Item 117 amends s.135L(1)(a) of the Act by omitting the words “of transmissions” and substituting the words “of broadcasts and communication of such copies”.  This item is a consequence of the extension of Part VA of the Act to the communication of copies of broadcasts (see Item 105).

Item 117A.  Paragraph 135L(1)(b)

328.  Item 117A amends s.135L(1)(b) of the Act by omitting the words “of copies of transmissions” and substituting the words “and communication of copies of broadcasts”.  This item is a consequence of the extension of Part VA of the Act to the communication of copies of broadcasts (see Item 105).

Item 118.  Subsection 135N(1)

329.  Item 118 amends s.135N(1) of the Act by omitting the words “or 135J, as the case may be, for copies of transmissions” and substituting the words “, 135J or 135JA, as the case may be, for copies of broadcasts and communications of such copies”.  This item is a consequence of the extension of Part VA of the Act to the communication of copies of broadcasts (see Item 105).

Item 118A.  Subparagraph 135P(3)(d)(i)

330.  Item 118A amends s.135P(3)(d)(i) of the Act by omitting the words “or 135J” and substituting the words “, 135J or 135JA”.  This item is a consequence of the extension of Part VA of the Act to the communication of copies of broadcasts (see Item 105).

Item 119.    Subsections 135U(1) and (2)

331.  Item 119 amends ss.135U(1) and (2) of the Act by omitting the word “transmission” wherever it occurs and substituting the word “broadcast”.  This is a consequential amendment (see Item 105).

Item 120.    Section 135V

332.  Item 120 amends s.135V to omit the term “transmissions” and substitute the term “broadcasts”. This is a consequential amendment (see Item 105).

Item 121.    Subsection 135W(1)

333.  Item 121 amends s.135W(1) to omit the term “transmissions” and substitute the term “broadcasts”.  This is a consequential amendment (see Item 105).

Item 122.    Section 135Z

334.  Item 122 repeals s.135Z and inserts a new s.135Z.  New s.135Z applies the current principle in relation to the right of a copyright owner to authorise the copying of works and other subject-matter, and extends this principle to the new right of communication to the public (see Item 105).  The new section reflects changes in terminology from “transmission” to “broadcast” and, in relation to works, from “copy” to “reproduction”.

Item 123.    Section 135ZA

335.  Item 123 amends s.135ZA of the Act by omitting the words “of a copy of a transmission” and substituting the words “or communication of a copy of a broadcast”.  This item is a consequence of the extension of Part VA of the Act to the communication of copies of broadcasts (see Item 105).

Item 124.    Part VB (heading)

336.  Item 124 repeals the heading of Part VB and substitutes the heading “Reproducing and communicating works etc. by educational and other institutions”.  This amendment is a consequence of the extension of the current statutory licence scheme to the reproduction and communication of copyright material in electronic form. 

Amended Part VB - General Approach

Two schemes to apply

337.  Two separate schemes will apply.  The first will apply to copyright material in hardcopy or analog form, and the second (the new scheme) to copyright material in electronic form.  The new scheme in relation to copyright material in electronic form is designed to allow educational and other institutions to electronically copy and communicate works on the basis of payment of equitable remuneration to copyright owners.  The scheme is drafted broadly to enable it to encompass future technological developments.  The basic limits under the current statutory licence as to what amount of copyright material can be copied (see, for example Division 2 of Part VB) will apply to the new scheme.  However, the current system is largely page based and is amended to more appropriately apply to works in electronic form. 

Application to both reproduction and communication of copyright material in electronic form

338.  The key to the new scheme is flexibility based upon agreement between the relevant parties (the administering body and the collecting society).  The new scheme will be less prescriptive with parties responsible for agreeing to its details.  However, the Act will provide a set of minimum requirements to protect copyright material reproduced and communicated in electronic form.  As with the current scheme, if the parties fail to agree on certain issues they will have recourse to the Copyright Tribunal.

339.  The new scheme applies to both the reproduction and communication of copyright material in electronic form.  Depending on the agreement reached between the relevant parties, a single remuneration notice may be given for the exercise of both these rights.  The scheme may therefore apply to the electronic “use” of copyright material in so far as these rights are concerned.  However, under the scheme it would be possible for the two rights to be separately remunerated if relevant parties so agreed. 

New scheme for equitable remuneration

340.  The new electronic use system enables the reproduction and communication of copyright material in electronic form.  The new electronic use system aims to avoid the technology-specific requirements of the current record system and sampling system.  The system is broad enough to encompass electronic copyright management systems or what ever system the relevant parties agree to use.

Applications to Copyright Tribunal

341.  As with the current scheme, the new scheme does not attempt to prescribe what is equitable remuneration, where the boundaries of fair dealing lie, and what is an appropriate system for determining the amount of equitable remuneration.  If the parties fail to agree on the amount of equitable remuneration payable or the appropriate system to determine this, the parties can take the matter to the Copyright Tribunal.

342.  To provide some guidance in the determination of what amounts to equitable remuneration, it is proposed that  the Copyright Tribunal have regard to a similar set of prescribed factors as those set out in reg. 25B of the Copyright Tribunal (Procedure) Regulations 1969 .  This approach is similar to the current approach (see s.153C).

When to apply the current scheme and when to apply the new scheme.

343.  As described above, the current scheme is limited in its application to copyright material in hardcopy or analog form, whereas the new scheme will apply to copyright material in electronic form.  The application of the schemes is clear where the reproduction is in the same medium as the “original” from which it is made (eg. hardcopy original to hardcopy reproduction, or electronic original to electronic reproduction).  The schemes apply differently where the original and reproduction are in different forms.  For example,  hardcopy original to electronic reproduction (eg. scanning), or electronic original to hardcopy reproduction (eg. printing out an electronic work).

344.  In this case, the application of the schemes is determined on the basis of quantity and remuneration.  In determining what quantity of the original may be copied, it is the form of the original that determines which scheme applies.  For example, if the original is in hardcopy form the current requirements under Division 2 of Part VB will apply.  If the original is in electronic form then the quantities under the electronic scheme (the new Division 2A) will apply.  In determining the requirements for equitable remuneration, it is the form of the reproduction that determines which scheme applies.  For example, if the reproduction is in hardcopy form the current requirements under Division 5 of Part VB will apply.  If the reproduction is in electronic form the new electronic use system will apply.  The table below summarises this approach.

Scheme for educational institutions

 

Original

Reproduction

Hardcopy form

Current scheme applies to determine quantity of material which may be copied

(Part VB - Division 2)

 

Current scheme applies to requirements for equitable remuneration

(Part VB - Division 5)

 

Electronic form

New scheme applies to determine quantity of material which may be copied

(Part VB - New Division 2A)

 

New scheme applies to requirements for equitable remuneration

(Part VB - amendments to Division 5)

 

 

Institutions assisting persons with a print or intellectual disability

345.  The above approach only applies in relation to the copying or communication of works by educational institutions.  Where the copying or communication is undertaken by an institution assisting persons with a print or intellectual disability, the current scheme is not page based so the issue in relation to quantifying the amount of copyright material does not arise.  The current scheme under Divisions 3 and 4 of Part VB (for determining the quantity which may be copied) is therefore directly applicable to the copying and communication of works and other subject-matter in electronic form.

346.  However, the distinction regarding remuneration requirements which will apply to educational institutions will also apply to institutions assisting persons with a print or intellectual disability.  If the reproduction is in hardcopy or analog form the current requirements under Division 5 of Part VB will apply.  If the reproduction is in electronic form, the new electronic use system will apply.  The table below summarises this approach.

Scheme for institutions assisting persons with a print or intellectual disability

 

Original

Reproduction

Hardcopy or analog form

Current scheme applies to determine quantity of material which may be copied

(Part VB - Divisions 3 and 4)

 

Current scheme applies to requirements for equitable remuneration

(Part VB - Divisions 5)

 

Electronic form

Current scheme applies to determine quantity of material which may be copied or communicated

(Part VB - Divisions 3 and 4)

 

New scheme applies to requirements for equitable remuneration

(Part VB - amendments to Division 5)

 

Item 125.    Section 135ZB

347.  Item 125 amends s.135ZB to insert a definition of “electronic use notice”.  This term is defined to mean a remuneration notice specifying that the amount of remuneration payable in respect of licensed copies in electronic form or licensed communications, made by, or on behalf of the administering body giving the notice is to be assessed on the basis of an electronic use system.

Item 126.    Section 135ZB (paragraph (a) of the definition of licensed copy )

348.  Item 126 repeals paragraph (a) of the definition of “licensed copy” in s.135ZB and inserts a new paragraph (a).  In effect, the amended definition replaces the term “copy” in the current definition with the term “reproduction” in accordance with similar changes made in relation to works throughout this Bill.  It also extends the application of the term “licensed copy” to reproductions made from works in electronic form under the new ss.135ZMC and 135ZMD.

Item 127.    Section 135ZB (paragraph (b) of the definition of licensed copy )

349.  Item 127 amends paragraph (b) of the definition of “licensed copy” in s.135ZB by omitting the words “or a photographic version” and substituting “, a photographic version or an electronic version”.  This amendment is a consequence of the extension of the current statutory licence scheme for institutions assisting persons with a print disability to the reproduction and communication of copyright material in electronic form.

Item 128.    Section 135ZB

350.  Item 128 amends s.135ZB by inserting a new definition of “licensed communication”.  This term is defined to mean a communication made by (or on behalf of) a body administering an institution in reliance on ss.135ZMC, 135ZMD, 135ZP or 135ZS.

Item 129.    Section 135ZB (definition of records notice )

351.  Item 129 amends the definition of “records notice” in s.135ZB by omitting the words “to the collecting society by” and substituting “in respect of licensed copies made in hardcopy form or analog form by, or on behalf of,”.  This amendment has the effect of limiting the term “records notice” to copyright material that is reproduced in hardcopy or analog form.  It reflects the policy that the current provisions of Part VB should continue to apply to copyright material in hardcopy or analog form.

Item 130.    Section 135ZB (definition of sampling notice )

352.  Item 130 amends the definition of “sampling notice” in s.135ZB by omitting the words “to the collecting society by” and substituting “in respect of licensed copies made in hardcopy form or analog form by, or on behalf of,”.  This amendment has the effect of limiting the term “sampling notice” to copyright material that is reproduced in hardcopy or analog form.  It reflects the policy that the current provisions of Part VB should continue to apply to copyright material in hardcopy or analog form.

Item 131.    At the end of Division 1 of Part VB

353.  Item 131 inserts new s.135ZFA to clarify the meaning of the term “licensed communication” in Part VB.  The section provides that a reference to a licensed communication of a work, or part of a work, or other subject-matter includes a reference to a licensed communication of a licensed copy of the work or other subject-matter.

Item 132.    Division 2 of Part VB (heading)

354.  Item 132 repeals the heading of Division 2 of Part VB and substitutes the heading “Reproduction by educational institutions of works that are in hardcopy form”.  This amendment results from the current provisions of Division 2 being specifically limited in their application to copyright material in hardcopy form.

Item 133.    Before section 135ZG

355.  Item 133 inserts new s.135ZGA that clarifies the limited application of Division 2.  Subsection 135ZGA(1) limits the application of Division 2 to the reproduction of works (or parts of works) where the document from which the reproduction is made is in hardcopy form.  This includes reproductions of articles contained in periodical publications and published editions of works.  Paragraph 135ZGA(2)(a) deems that for the purposes of this Division, a reproduction of a work is to be read as a reference to a reproduction of that work made from a document that is in hardcopy form.  This also applies to articles in periodical publications and parts of works.  Paragraph 135ZGA(2)(b) provides a similar provision that a facsimile copy of a printed published edition is to be read as a reference to a facsimile copy made from a document in hardcopy form.

Item 134.    Subsection 135ZG(1)

356.  Item 134 amends s.135ZG(1) by omitting the words “copies of a page or pages of the work in an edition of the work if the copying” and substituting “reproductions of a page or pages of the work in an edition of the work if the reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works under this Bill.  “Reproduction” is defined in s.21(1A) to include digital conversions of a work from hardcopy to electronic form and vice versa (see Item 23).  The heading of s.135ZG is consequentially amended to read “Multiple reproductions of insubstantial parts of works that are in hardcopy form”.

Item 135.    Subsection 135ZG(2)

357.  Item 135 amends s.135ZG(2) by omitting the word “copy” and substituting the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill. 

Item 136.    Subsection 135ZG(3)

358.  Item 136 amends s.135ZG(3) by omitting the word “copy” and substituting the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill. 

Item 137.    Paragraph 135ZG(3)(b)

359.  Item 137 amends s.135ZG(3)(b) by omitting the word “copied” and substituting the word “reproduced”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 138.    Subsection 135ZG(4)

360.  Item 138 amends s.135ZG(4) by omitting the word “copy” wherever occurring and substituting the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 139.    Section 135ZH

361.  Item 139 repeals s.135ZH and inserts new s.135ZH.  In effect, the section repeats current s.135ZH but makes clear that this section only applies to copying of printed published editions by educational institutions.  Further, the term “reproduction” is replaced by the term “facsimile copy” in line with the amendment to s.88 (see Item 84).

Item 140.    Subsection 135ZJ(1)

362.  Item 140 amends s.135ZJ(1) to omit the words “periodical publication is not infringed by the making of one or more copies” and substitute “printed periodical publication is not infringed by the making or one or more reproductions”.  It therefore limits the application of the section to periodical publications in hardcopy form.  The heading of s.135ZJ is consequentially amended to read “Multiple reproduction of printed periodical articles by educational institutions”. 

Item 141.    Paragraph 135ZJ(1)(b)

363.  Item 141 amends s.135ZJ(1)(b) to omit the words “copy is made” and substitute the words “reproduction is carried out”.  This amendment reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill.  “Reproduction” is defined in s.21(1A) to include digital conversions of a work from hardcopy to electronic form and vice versa (see Item 23). 

Item 142.    Paragraph 135ZJ(1)(c)

364.  Item 142 repeals s.135ZJ(1)(c) and inserts the new s. 135ZJ(1)(c).  In effect, the amendment extends the current paragraph to include compliance with the new s.135ZXA, as the case requires.  The new s.135ZXA specifies the requirements for reproductions made in electronic form under an electronic use notice (see Item 189).  The amendment reflects the policy that where the reproduction is in hardcopy form, the current equitable remuneration scheme under Division 5 should apply.  Where the reproduction is in electronic form, the new electronic use scheme should apply. 

365.  Under the amended s.135ZJ(1)(c), where a reproduction is made in hardcopy form, the marking and record keeping requirements of either a records notice (s.135ZX(1)) or sampling notice (s.135ZX(3)) apply.  However, where the reproduction is made in electronic form, the requirements of an electronic use notice (s.135ZXA) apply.  The amendment to s.135ZJ(1)(c) also reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 143.    Subsection 135ZJ(2)

366.  Item 143 amends s.135ZJ(2) to omit the word “copies” and substitute the word “reproductions”.  This amendment reflects the change in terminology from “copy” to “reproduction”  in relation to works that occurs throughout the Bill. 

Item 144.    Section 135ZK

367.  Item 144 repeals s.135ZK and inserts new s.135ZK that provides for multiple reproductions of works published in printed anthologies.  In effect, the amendment restates current s.135ZK but clarifies that it applies only to published anthologies in hardcopy form.  It also extends the section to include compliance with the new s.135ZXA as the case requires (see Item 142).  This amendment also reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 145.    Subsection 135ZL(1)

368.  Item 145 amends s.135ZL(1) to omit the word “copies” and substitute the word “reproductions”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs throughout the Bill in relation to works.  “Reproduction” is defined in s.21(1A) to include digital conversions of a work from hardcopy to electronic form and vice versa (see Item 23).  The heading of s.135ZL is consequentially amended to read “Multiple reproduction of works that are in hardcopy form by educational institutions”.

Item 146.    Paragraph 135ZL(1)(b)

369.  Item 146 amends s.135ZL(1)(b) to omit the words “copy is made” and substitute the words “reproduction is carried out”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs throughout the Bill in relation to works.

Item 147.    Paragraph 135ZL(1)(c)

370.  Item 147 repeals s.135ZL(1)(c) and inserts new s.135ZL(1)(c).  In effect, the amendment extends the current paragraph to include compliance with the new s.135ZXA as the case requires (See Item 142).  This amendment also reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 148.    Subsection 135ZL(2)

371.  Item 148 amends s.135ZL(2) to omit the word “copies” wherever occurring and substitute the word “reproductions”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 149.    Subsection 135ZM(1)

372.  Item 149 amends s.135ZM(1) to omit the word “copy” wherever occurring and substitute the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.  “Reproduction” is defined in s.21(1A) to include digital conversions of a work from hardcopy to electronic form and vice versa (see Item 23).  The heading of s.135ZM is consequentially amended to read “Application of Division to certain illustrations that are in hardcopy form”.

Item 150.    Paragraph 135ZM(2)(a)

373.  Item 150 amends s.135ZM(2)(a) to omit the word “copy” wherever occurring and substitute the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” that occurs in relation to works throughout the Bill.

Item 151.    After Division 2 of Part VB

374.  Item 151 inserts new Division 2A of Part VB to extend the current statutory licence scheme for educational institutions to the reproduction and communication of copyright material in electronic form. 

New Division 2A - Reproduction and communication of works that are in electronic form

New s.135ZMA - Application of Division

375.  New s.135ZMA(1) specifically limits the application of Division 2A to the reproduction of works (or parts of works) where the source document from which the reproduction is made is in electronic form.  This includes reproductions of articles contained in periodical publications.  New s.135ZMA(2) makes clear that a reference to a reproduction of a work in Division 2A is to be read as a reference to a reproduction made from an electronic form of the work.  This also applies to articles in periodical publications and parts of works. 

New s.135ZMB - Multiple reproduction and communication of insubstantial parts of works that are in electronic form

376.  New s.135ZMB creates an exception to the infringement of copyright in a published literary or dramatic work (in electronic form) where an insubstantial part of that work is reproduced or communicated on the premises of an educational institution for the purposes of a course of study provided by it.  To be a reproduction of an insubstantial part, the reproduction or communication must be of not more than 1% of the total number of words in the work (s.135ZMB(2)).

377.  Subsection 135ZMB(3) qualifies the exception in s.135ZMB(1) by providing that another reproduction or communication of an insubstantial portion of the same work cannot be made within 14 days after the day on which the original reproduction was made, or the insubstantial portion was first communicated.

378.  Subsection 135ZMB(4) further qualifies this exception by providing that, where an insubstantial portion of a work is made available online, the portion must be taken down before another part of the same work can be made available under this section.  This subsection is intended to prevent the simultaneous making available online of more than one insubstantial portion of the same work.

New s.135ZMC - Multiple reproduction and communication of periodical articles that are in electronic form by education institutions

379.  Subsection 135ZMC(1) creates an exception to the infringement of copyright in an article contained in a periodical publication (in electronic form) where the whole or part of that article is reproduced or communicated by a body administering an educational institution.  This exception is subject to 3 conditions similar to the amended s.135ZJ upon which it is based.  First, a remuneration notice given by, or on behalf of, the administering body to the relevant collecting society must be in force (see s.135ZMC(1)(c).  Second, the reproduction or communication must be made solely for the educational purposes of the institution or another educational institution (s.135ZMC(1)(d)).  Third, the body must comply with the marking and record keeping requirements in ss.135ZX(1) and (3), or the electronic use notice requirements in s.135ZXA as the case requires.  These requirements must be met in relation to each reproduction or communication (s.135ZMC(1)(e)). 

380.  Subsection 135ZMC(2) limits the application of the exception.  It does not apply to the reproduction or communication of, or parts of, 2 or more articles contained in the same periodical publication unless the articles relate to the same subject-matter.

New s.135ZMD - Multiple reproduction and communication of works that are in electronic form by educational institutions

381.  New s.135ZMD creates an exception to the infringement of copyright in a literary, dramatic, musical or artistic work (in electronic form) where the whole or part of that work is reproduced or communicated by a body administering an educational institution.  This provision is not intended to include articles contained in periodical publications as these are dealt with by the new s.135ZMC. 

382.  The exception in s.135ZMD is subject to three conditions, similar to those contained in the amended s.135ZL upon which it is based.  First, a remuneration notice given by, or on behalf of, the administering body to the relevant collecting society must be in force (new s.135ZMD(1)(c)).  Second, the reproduction or communication must be made solely for the educational purposes of the institution or another educational institution (s.135ZMC(1)(d)).  Third, the body must comply with the marking and record keeping requirements in ss.135ZX(1) and (3), or the electronic use notice requirements in s.135ZXA as the case requires.  These requirements must be met in relation to each reproduction or communication (s.135ZMC(1)(e)). 

383.  New s.135ZMD(2) provides that the exception is subject to the commercial availability and reasonable portion tests.  Effectively, the exception is limited to the reproduction or communication of a reasonable portion of a literary or dramatic work that has been separately published.  It is also limited to the reproduction or communication of less than 10% of a musical work that has been separately published.  However, the exception may apply to the whole (or more than a reasonable portion) of a literary or dramatic work, or the whole (or more than 10%) of a musical work that has been separately published if the commercial availability test is met.  The exception will not apply unless the person who makes the reproduction or communication on behalf of the administering body is satisfied, after reasonable investigation, that the work is not available in electronic form within a reasonable time at an ordinary commercial price.

384.  New s.135ZMD(3) further qualifies this exception by providing that if a body administering an educational institution makes part of a work available online, that part of the work must be “taken down” before another part of the same work can be made available under this section.  This subsection is intended to prevent the simultaneous making available online of more than one portion of the same work.

New s.135ZME - Application of Division to certain illustrations in electronic form

385.  New s.135ZME sets out the application of Division 2A to the reproduction or communication of illustrative artistic works in electronic form.  If an article or other, literary, dramatic or musical work (in electronic form) is accompanied by an illustrative artistic work, Division 2A applies as if references to copyright in the article or other work include a reference to the copyright in the illustrative artistic work (s.135ZME(1)(a)).  This effectively extends the exceptions for infringement to accompanying illustrative works.  References in Division 2A to the reproduction or communication of an article or other work also include reference to the accompanying illustrative work ( new s.135ZME(1)(b)).  References in Division 2A to the reproduction or communication of part of an article or other work also include reference to any illustrative work accompanying that part (new s.135ZME(1)(c)). 

386.  New s.135ZME(2) provides a scheme for remuneration in relation to the reproduction or communication of illustrative artistic works that accompany articles or other works in electronic form.  This provision applies to situations where the reproduction or communication is within the exceptions in ss.135ZMC or 135ZMD.  In this situation, the amount of remuneration payable under Part VB must be divided among the owner/s of the copyright in the illustrative artistic work and the owner/s of the copyright in the article or other work.

387.  New s.135ZME(3) provides that the division of remuneration under s. 135ZME(2) is to be carried out as agreed between the relevant copyright owners.  Failing such agreement, any of the relevant parties may apply to the Copyright Tribunal for determination of the amount of remuneration.

Item 152.    Division 3 of Part VB (heading)

388.  Item 152 repeals the heading of Division 3 of Part VB and substitutes the heading “Reproduction and communication of works by institutions assisting persons with a print disability”.  This amendment is a consequence of the extension of the current statutory licence scheme for these institutions to the reproduction and communication of copyright material in electronic form.  The amendment also reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill.

Item 153.    Section 135ZN

389.  Item 153 repeals s.135ZN and substitutes new s.135ZN.  In effect, the section repeats current s.135ZN but replaces the term “reproduction” in relation to a published edition with the term “facsimile copy” in line with the amendment to s.88 (see Item 84).  Further, the term “copy” is replaced with the term “reproduction” to reflect similar changes made throughout the Bill in relation to works.

Item 154.    Subsection 135ZP(1)

390.  Item 154 amends s.135ZP(1) to insert the words “or communication” after the word “making”.  The effect of the amendment is to extend the section to the communication of records embodying a sound recording of a work.  The heading of s.135ZP is consequentially amended to read “Multiple reproduction and communication of works by institutions assisting persons with a print disability”.

Item 155.    Paragraph 135ZP(1)(b)

391.  Item 155 amends s.135ZP(1)(b) to insert the words “, or each communication is carried out” after the word “is made”.  This amendment is a consequence of the extension of this exception to the new right of communication to the public. 

Item 156.    Paragraph 135ZP(1)(c)

392.  Item 156 repeals s.135ZP(1)(c) and inserts new s.135ZP(1)(c).  In effect, the amendment restates current s.135ZP(1)(c) and extends it to include compliance with the new s.135ZXA as the case requires in relation to each reproduction or communication.  This has the effect that where the reproduction is in electronic form, the requirements of an electronic use notice apply. 

Item 157.    Subsection 135ZP(2)

393.  Item 157 repeals s.135ZP(2) and inserts new s.135ZP(2).  In effect, the amendment restates current s.135ZP(2) and extends it to the reproduction and communication of an electronic version of a work or part of a work.  The subsection is extended to include compliance with the new s.135ZXA as the case requires in relation to each reproduction or communication.  This has the effect that where the reproduction is in electronic form, or where a communication is made, the requirements of an electronic use notice apply. 

Item 158.    After subsection 135ZP(6)

394.  Item 158 inserts new s.135ZP(6A) to apply the commercial availability test to the making or communication of an electronic version of a work, or of part of a work, on behalf of institutions assisting persons with a print disability.  The exception provided by s.135ZP(2) will not apply unless the person making or communicating the electronic version of the work is satisfied, after reasonable investigation, that a separately published electronic version of the work is not available within a reasonable time at an ordinary commercial price.

Item 159.    Subsections 135ZQ(1) and (2)

395.  Item 159 repeals ss.135ZQ(1) and (2) and inserts new ss.135ZQ(1) and (2).  In effect, the amendment restates current ss.135ZQ(1) and (2) and extends them to include reference to “relevant communications”.  This amendment is a consequence of the extension of this Division to the new right of communication to the public.  The section is also amended to reflect the change in terminology from the term “copy” to the term “reproduction”.  The heading of s.135ZQ is consequentially amended to read “Making of relevant reproductions and relevant communications by institutions assisting persons with a print disability”.

Item 160.    Subsection 135ZQ(3)

396.  Item 160 amends s.135ZQ(3) to insert the words “in analog form” after the words “embodying a sound recording”.  This amendment has the effect of limiting the application of s.135ZQ(3), and therefore the requirement for the embodying of a prescribed message, to the making of relevant reproductions in analog form only.

Item 161.    Subsection 135ZQ(4)

397.  Item 161 amends s.135ZQ(4) to insert the words “in hardcopy form” after the words “a relevant reproduction”.  This amendment has the effect of limiting the application of s.135ZQ(4), and therefore the requirement of marking in the prescribed form, to the making of relevant reproductions in hardcopy form only.

Item 162.    Subsection 135ZQ(4A)

398.  Item 162 amends s.135ZQ(4A) to insert the words “or relevant communication” after the words “relevant reproduction” wherever occurring.  This amendment is a consequence of amendments to s.135ZQ(1) to include reference to relevant communications.  As a result of this amendment, an administering body must, within 3 months after making a relevant communication, give notice to a collecting society that the relevant communication was made.  If such notice is not provided, the amended s.135ZQ(1) is to be taken as having never applied.

Item 163.    Paragraph 135ZQ(4B)(b)

399.  Item 163 amends s.135ZQ(4B)(b) to insert the words “or communicated” after the word “reproduced”.  This amendment is a consequence of amendments to s.135ZQ(4A) to include reference to “relevant communications”.

Item 164.    Paragraph 135ZQ(4B)(c)

400.  Item 164 amends s.135ZQ(4B)(c) to insert the words “or communicated” after the word “reproduced”.  This amendment is a consequence of amendments to s.135ZQ(4A) to include reference to “relevant communications”.

Item 165.    Subsection 135ZQ(5)

401.  Item 165 repeals s.135ZQ(5) and substitutes new s.135ZQ(5).  The subsection inserts a new definition of “relevant communication” in relation to a work or part of a work.  This term is defined to mean the communication of a sound recording of a work (or part of a work) or the communication of an electronic version of the work.  The definition of “relevant reproduction” is similar to the current definition, however, it reflects the change in terminology from “copy” to “reproduction” in relation to works.  It also includes reference to an “electronic version” of a work or part of a work.

Item 166.    Division 4 of Part VB (heading)

402.  Item 166 repeals the heading of Division 4 of Part VB and substitutes the heading “Reproduction and communication of works etc. by institutions assisting persons with an intellectual disability”.  This amendment is a consequence of the extension of the current statutory licence scheme under Part VB to the reproduction and communication of copyright material in electronic form. 

Item 167.    Section 135ZR

403.  Item 167 repeals s.135ZR and substitutes new s.135ZR.  In effect, the section repeats current s.135ZR but replaces the term “reproduction” with the term “facsimile copy” in relation to published editions (consistent with the amendments in Item 84).  Further, the term “copy” is replaced with the term “reproduction” to reflect similar changes in relation to works.

Item 168.    Subsection 135ZS(1)

404.  Item 168 amends s.135ZS(1) to insert the words “or communication” after the words “the making”.  The effect of the amendment is to extend the section to the communication of eligible items.  The heading of s.135ZS is consequentially amended to read “Copying and communication of eligible items by institutions assisting persons with an intellectual disability”.

Item 169.    At the end of paragraph 135ZS(1)(a)

405.  Item 169 amends s.135ZS(1)(a) to insert the word “and”.  This amendment clarifies that all the conditions in ss.135ZS(1)(a), (b) and (c) must be met in order to attract the exception to infringement in s.135ZS(1).

Item 170.    Paragraphs 135ZS(1)(b) and (c)

406.  Item 170 repeals ss.135ZS(1)(b) and (c) and substitutes new ss.135ZS(1)(b) and (c).  The new paragraphs effectively restate the current paragraphs and extend them to include reference to the communication of an eligible item.  This is a consequence of amendments made to s.135ZS(1) by Item 168.  Paragraph 135ZS(1)(c) is extended to include compliance with s.135ZXA as the case requires.  This has the effect that where the reproduction is in electronic form, or where a communication is made, the requirements for an electronic use notice apply. 

Item 171.    Subsection 135ZS(2)

407.  Item 171 amends s.135ZS(2) to insert the words “or communication” after the words “the making”.  The amendment is consequential to the extension of this section to the communication of eligible items.

Item 172.    Subsection 135ZS(2)

408.  Item 172 amends s.135ZS(2) to omit the words “makes the copy, or causes the copy to be made” and substitute the words “makes the copy or communication, or causes the copy or communication to be made”.  The amendment is a consequence of the extension of this section to the communication of eligible items. 

Item 173.    Paragraphs 135ZS(2)(c) and (d)

409.  Item 173 amends ss.135ZS(2)(c) and (d) to insert the words “or is available electronically” after the word “obtained”.  This amendment implements the commercial availability test in relation to copyright material in electronic form. 

Item 174.    Subsection 135ZT(1)

410.  Item 174 amends s.135ZT(1) to insert the words “or communication” after the word “copy” wherever occurring.  The effect of the amendment is to extend the section to the communication of copies of eligible items and television broadcasts.  The heading of s.135ZT is consequentially amended to read “Making of copies etc. for use in making copies or communications for a person with an intellectual disability”.

Item 175.    Subsection 135ZT(2)

411.  Item 175 amends s.135ZT(2) to insert the words “or communication” after the word “copy” wherever occurring.  This amendment is a consequence of the amendments to s.135ZT(1) made by Item 174.

Item 176.    Subsection 135ZT(3)

412.  Item 176 amends s.135ZT(3) to insert the words “in analog form” after the words “embodying a sound recording”.  This amendment has the effect of limiting the application of s.135ZT(3) to the making of sound recordings in analog form only.  

Item 177.    Subsection 135ZT(4)

413.  Item 177 amends s.135ZT(4) by inserting the words “in hard copy form or analog form” after the words “a copy”.  This amendment has the effect of limiting the application of s.135ZT(4) to the making of copies of eligible items or television broadcasts in hardcopy form or analog form only.  

Item 178.    Subsection 135ZU(1)

414.  Item 178 amends s.135ZU(1) by inserting the words “and licensed communications” after the words “licensed copies”.  This amendment is a consequence of the introduction of a new equitable remuneration scheme based upon an electronic use system that applies to reproductions in electronic form and communications of copyright material.

Item 179.    Subsection 135ZU(1)

415.  Item 179 amends s.135ZU(1) by inserting the words “and communications” after the words “being copies”.  This amendment is a consequence of the introduction of a new equitable remuneration scheme based upon an electronic use system that applies to reproductions in electronic form and communications of copyright material.

Item 180.    Subsection 135ZU(2)

416.  Item 180 amends s.135ZU(2) by omitting the words “or a sampling system” and substituting the words “, a sampling system or an electronic use system”.  This amendment is a consequence of the introduction of a new equitable remuneration scheme based upon an electronic use system that applies to reproductions in electronic form and communications of copyright material.

Item 181.    After subsection 135ZU(2)

417.  Item 181 amends s.135ZU by inserting new s.135ZU(2A).  The subsection makes clear that a records notice or sampling notice may be given in respect of licensed copies in hardcopy or analog form.  However, an electronic use notice can only be given in respect of licensed copies made in electronic form, or in respect of licensed communications.  This amendment is a consequence of the introduction of a new equitable remuneration scheme based upon an electronic use system.

Item 182.    Subsection 135ZU(3)

418.  Item 182 amends s.135ZU(3) by omitting the word “A” and substituting “Subject to subsection (4), a”. 

Item 184.    Subsection 135ZW(5)

419.  Item 184 amends s.135ZW(5) by omitting all the words after “sections” and substituting “135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and 135ZS do not apply to any reproduction or copy of a work or other subject-matter made during that period by, or on behalf of, the administering body, being a reproduction or copy to which the sampling notice applies.”

420.  This amended subsection is limited in its application in so far as it applies to reproductions made under the sampling notice.  It is not intended to operate to take outside of the scope of the statutory licence reproductions or communications made under an electronic use notice if an administering body also has such a notice in force in addition to a sampling notice.

 

Item 185.    After section 135ZW

421.  Item 185 inserts new s.135ZWA to set out the remuneration scheme in relation to electronic use notices.  New s.135ZWA(1) provides for the determination of the amount of equitable remuneration payable under an electronic use notice for licensed copies and licensed communications.  If an electronic use notice is given by an administering body, the amount of equitable remuneration payable while the notice is in force is to be determined by agreement between the administering body and the collecting society.  If such agreement cannot be reached, then either party may apply to the Copyright Tribunal to determine the amount.  The amount of equitable remuneration under the notice may be calculated on an annual basis or otherwise.

422.  New s.135ZWA(2) provides that the administering body and the relevant collecting society must agree on the matters and processes constituting an electronic use system, and any other matters that are necessary or convenient to be assessed or taken into account for the purposes of the system.  If the administering body and the relevant collecting society cannot agree on these issues, then either party may apply to the Copyright Tribunal to determine the issues.

423. New s.135ZWA(2A) provides that if a work is reproduced and made available online, and the work remains available online for more than the prescribed period, the work will be deemed to have been reproduced and communicated again for the next prescribed period.  Further equitable remuneration will then be payable in respect of that deemed reproduction and communication.

424.  New s.135ZWA(2B) provides that in determining the amount of equitable remuneration payable under an electronic use system, the parties must take account of the requirements in ss.135ZWA(2A)(d) and (e) to enable additional remuneration to be paid if the reproduction remains available online for longer than the prescribed period.

425.  New s.135ZWA(2C) clarifies that, subject to new s.135ZWA(2B), an electronic use system may be based upon a sampling system, a records system, or any other process or system (whether agreed between the parties or determined by the Copyright Tribunal).

426.  New s.135ZWA(2D) provides that when determining an amount of equitable remuneration under an electronic use notice, different amounts may be determined (either by agreement or by the Copyright Tribunal) for the reproduction and communication of works that is undertaken by different institutions administered by the same administering body.

427.  New s.135ZWA(3) provides that if an administering body does not comply with any of the requirements under s.135ZWA in relation to a current electronic use system (ie, determined under this section in relation to the notice given by the administering body to a collecting society), then ss.135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZP and 135ZS do not apply in relation to the electronic use notice.  The effect of this section is that the exceptions to infringement of copyright provided by these sections will not apply to any reproduction, copy or communication of a work or other subject-matter where the requirements in s.135ZWA have not been met.  This new subsection (s.135ZWA(3)) is limited in its application so far as it applies to the use of copyright material under an electronic use notice.  It is not intended to operate to take outside of the scope of the statutory licence reproductions made under a records notice or sampling notice if an administering body also has such a notice in force in addition to an electronic use notice.

428.  New s.135ZWA(4) provides that the prescribed period for s.135ZWA(2A) is a default period of 12 months, or the parties may agree to a different period.

Item 186.    Subsection 135ZX(1)

429.  Item 186 amends s.135ZX(1) (records notices) by inserting the words “in respect of licensed copies made in a hardcopy form or analog form” after the words “to a collecting society”.  This amendment limits the operation of s.135ZX(1) to licensed copies made in hardcopy or analog form.  Complementary provisions in relation to electronic use notices are inserted by new s.135ZXA (see Item 189).  The heading of s.135ZX is amended to read “Records notices and sampling notices: marking and record-keeping requirements.

Item 187.    Paragraphs 135ZX(1)(a) and (b)

430.  Item 187 amends ss.135ZX(1)(a) and (b) by inserting the word “such” after the word “each”.  This amendment makes clear that the operation of s.135ZX(1) is limited to licensed copies made in hardcopy or analog form (similar to Item 186).

Item 188.    Subsection 135ZX(3)

431.  Item 188 repeals s.135ZX(3) (sampling notices) and substitutes new s.135ZX(3).  The new provision effectively repeats the current s.135ZX(3) but makes clear that the operation of new s.135ZX(3) is limited to licensed copies made in hardcopy or analog form (similar to Item 186).

Item 189.    After section 135ZX

432.  Item 189 inserts new s.135ZXA that sets out the requirements for administering bodies in relation to electronic use notices that are in force.

433.  New s.135ZXA(a) provides that where licensed copies in electronic form or licensed communications are made under an electronic use notice, the administering body shall give a notice in relation to each copy or communication.  Such a notice will state that the copyright material reproduced or communicated might be the subject of copyright protection, and that the reproduction or communication has been made under the statutory licence under Part VB.  The notice will also contain other information or particulars (if any) as prescribed.  For example, the notice may be provided as a message to a student before access to the material in electronic form is granted.  Such a notice does not have to be included or attached to the actual material reproduced or communicated. 

434.  New s.135ZXA(b) provides that where a licensed communication is made while the electronic use notice is in force, the administering body shall take all reasonable steps to ensure that the communication can only be received or accessed by persons entitled to do so.  For example, reasonable steps should be taken (such as password protection) to ensure that the communication can only be accessed by teachers or students of an educational institution.

435.  New s.135ZXA(c) provides that the administering body must comply with any other prescribed requirements in relation to licensed copies in electronic form and licensed communications.

Item 190.    Paragraph 135ZY(1)(a)

436.  Item 190 amends s.135ZY(1)(a) by inserting the words “or licensed communication” after the words “licensed copying”.  This amendment is a consequence of the introduction of a new electronic use system which provides for the making of licensed communications.

Item 191.    Paragraph 135ZY(1)(b)

437.  Item 191 amends s.135ZY(1)(b) by inserting the words “or licensed communications” after the words “licensed copies”.  This amendment is a consequence of the introduction of a new electronic use system which provides for the making of licensed communications.

Item 192.    Subsection 135ZZA(1)

438.  Item 192 amends s.135ZZA(1) by omitting the words “or 135ZW, as the case may be, for licensed copies” and substituting the words “135ZW or 135ZWA, as the case may be, for licensed copies or licensed communications”.  This amendment is a consequence of the insertion of new s.135ZWA (see Item 185) and the new scheme for equitable remuneration for the reproduction and communication of copyright material in electronic form.

Item 193.    Subparagraph 135ZZB(3)(d)(i)

439.  Item 193 omits the words “or 135ZW” from s.135ZZB(3)(d)(i) of the Act and substitutes the words “, 135ZW or 135ZWA”.  This amendment is a consequence of the insertion of new s.135ZWA (see Item 185) and the new scheme for equitable remuneration for the reproduction and communication of copyright material in electronic form.

Item 194.    Subsection 135ZZF(1)

440.  Item 194 amends s.135ZZF(1) by omitting “copies” and substituting “a copy or communication”.  This amendment has the effect of extending the application of the subsection to the new right of communication to the public.

Item 195.    Subsection 135ZZF(2)

441.  Item 195 repeals s.135ZZF(2) and substitutes new s.135ZZF(2).  In effect, the new subsection repeats the provisions of the current subsection but extends it to apply to the new right of communication to the public and electronic versions of works.

Item 196.    Subsection 135ZZF(3)

442.  Item 196 amends s.135ZZF(3) by inserting the words “or communication” after the word “copy”.  This amendment has the effect of extending the application of the subsection to the new right of communication to the public.

Item 197.    Section 135ZZG

443.  Item 197 amends s.135ZZG by inserting the words “or communication” after the word “copy” wherever occurring.  This amendment has the effect of extending the application of the section to the new right of communication to the public.

Item 198.    Subsection 135ZZH(1)

444.  Item 198 amends s.135ZZH(1) by omitting all the words after “made” and substituting “or communicated, the prescribed provision does not apply, and is taken never to have applied, to the making or communication of the copy, record or version.”  In effect, the amendment repeats the provisions of current s.135ZZH(1) but extends it to apply to the new right of communication to the public.

Item 199.    Subsection 135ZZH(2)

445.  Item 199 amends s.135ZZH(2) by inserting “135ZMB(1), 135ZMC(1), 135ZMD(1)” after “135ZL(1),”.  The amendment is a consequence of the new scheme for equitable remuneration for the reproduction and communication of copyright material in electronic form.

Item 200.    After Part VB

446.  Item 200 inserts new “Part VC - Retransmission of free-to-air broadcasts” which provides a scheme for the remuneration of underlying copyright owners for the retransmission of free-to-air broadcasts.  Currently, retransmitters, such as cable pay TV operators, are able to retransmit free-to-air broadcasts without the permission of either the owner of copyright in the broadcast or the owner(s) of copyright in the underlying works, such as any music, written material etc.  This is because under s.87 of the Act, owners of copyright in broadcasts do not have a cable diffusion right.  So retransmitters, such as cable pay TV operators, are under no obligation to pay compensation to broadcast owners.  With regard to underlying rights holders, s.199(4) of the Act provides that a retransmitter can cause a literary, dramatic or musical work, an adaptation of such a work, or an artistic work or a cinematograph film to be retransmitted to subscribers to a diffusion service as though the retransmitter is in possession of a licence to do so from the copyright owner.  That is, s.199(4) of the Act provides that retransmission of a free-to-air broadcast is not an infringement of the underlying copyright material included in the broadcast. 

447.  Part VC implements the Government’s decision that, in relation to underlying rights holders in free-to-air broadcasts, retransmitters should have a statutory licence to retransmit those broadcasts, subject to the payment of equitable remuneration to the underlying rights holders in the broadcasts.  The scheme adopts a technology-neutral approach that recognises the underlying rights holders in broadcasts. 

448.  The Broadcasting Services Amendment Act (No. 1) 1999 amended s.212 of the Broadcasting Services Act 1992 to ensure that the statutory licence under Part VC allowing for the remuneration of underlying rights holders in retransmitted broadcasts will effectively operate.  Section 212 has been amended to prevent a retransmitter from relying on s.212(2) to prevent an action, suit or proceedings under the Copyright Act in relation to the retransmission of underlying copyright material in a free-to-air broadcast.

449.  One or more collecting societies, to be approved by the Attorney-General, will collect and distribute the retransmission payments.  In default of agreement between the collecting society and the retransmitter in relation to such payments, the rate of equitable remuneration will be determined by the Copyright Tribunal.  Complementary amendments are made to Part VI of the Copyright Act to extend the jurisdiction of the Copyright Tribunal to arbitrate disputes about remuneration.

Division 1 - Preliminary

New s.135ZZI - Definitions

450.  New s.135ZZI provides definitions for a number of terms used in Part VC. 

451.  “Collecting society” is defined to mean a body that is declared to be a collecting society under the new s.135ZZT.  The Attorney-General may declare one or more collecting societies under the proposed scheme.

452.  “Delayed retransmission” is defined to mean a retransmission of a free-to-air broadcast in an area that has, wholly or partly, different local time to the area of the original transmission and where the retransmission is delayed until no later than the equivalent local time.

453.  “Free-to-air broadcast” is defined to mean a broadcast delivered by a national, commercial or community broadcasting service within the meaning of the BSA.

454.  “Notice holder” is defined to mean the person who is appointed for the time being to be the notice holder under the new s.135ZZX.

455.  “Relevant collecting society” is defined to mean a collecting society for owners of copyright in the same kind of work or other subject-matter in relation to the relevant remuneration notice.

456.  “Relevant copyright owner” is defined to mean the owner of copyright in a work, sound recording or film.

457.  “Remuneration notice” is defined to mean a notice referred to in the new s.135ZZL.

458.  “Retransmitter” is defined to mean a person who makes a retransmission of a free-to-air-broadcast (such as a pay TV operator). 

459.  “Rules” are defined, in relation to a collecting society, to mean the provisions of the memorandum and articles of association of the society.

New s.135ZZJ - Operation of collecting society rules

460.  New s.135ZZJ provides that Part VC will apply to a collecting society despite anything in the rules of the collecting society.  The section further provides that nothing in Part VC affects the rules of a collecting society so far as they can operate together with this Part.

New s.135ZZJA - Application of Part

461.  New s.135ZZJA clarifies that Part VC of the Act does not apply to the retransmission of free-to-air broadcasts via the Internet.  Consequently, retransmitters would be required to negotiate on a voluntary basis with all relevant underlying rights holders in a broadcast before retransmitting a free-to-air broadcast via the Internet.

New Division 2 - Retransmission of free-to-air broadcasts

New s.135ZZK - Retransmission of free-to-air broadcasts

462.  Section 135ZZK provides the basic principles for the statutory licence scheme for retransmissions of free-to-air broadcasts.  Subsection 135ZZK(1) provides that the copyright in a work, sound recording or film included in a free-to-air broadcast is not infringed by the retransmission of the broadcast if three conditions are met.  First, there must be in force a remuneration notice given by (or on behalf of) the retransmitter to the relevant collecting society.  Second, the free-to-air broadcast must have been made by a broadcaster specified in the remuneration notice.  Third, the retransmitter must comply with the record keeping requirements in the new s.135ZZN.  This subsection makes clear that the statutory licence scheme will apply to the copyright in the underlying copyright material (ie, the works, sound recordings and cinematograph films included in a broadcast).  The statutory licence is not intended to apply to the copyright subsisting in a free-to-air broadcast. 

463.  New s.135ZZK(2) creates an exception to infringement of copyright in the underlying copyright material (being a work, sound recording or film) if a retransmitter makes a copy of a free-to-air broadcast solely for the purpose of making a delayed retransmission of the broadcast.  A delayed retransmission (as defined in the new s.135ZZI) is a retransmission in an area that has, wholly or partly, different local time to the area in which the free-to-air broadcast was originally made so that the retransmission is delayed until no later than the equivalent local time.  Subsection 135ZZK(3) makes clear that this exception does not apply if the retransmission would infringe the copyright in the broadcast.  Subsection 135ZZK(4) makes clear that any copy of a retransmission under s.135ZZK(2) must be destroyed within 7 days otherwise the exception in subsection (2) is taken never to have applied.

464.  Subsection 135ZZK(5) provides that a copy of a free-to-air broadcast referred to in this section is a reference to the making of a film or sound recording (or copy of such a film or sound recordings) of the broadcast.

New s.135ZZL - Remuneration notices

465.  New s.135ZZL provides a number of requirements for remuneration notices under the statutory licence scheme.  Subsection 135ZZL(1) provides that a retransmitter may undertake to pay equitable remuneration to a collecting society for retransmissions of free-to-air broadcasts by specified broadcasters.  The relevant retransmissions are those made by (or on behalf of) a retransmitter while the notice is in the force.  The undertaking is in the form of a notice in writing given by (or on behalf of) the retransmitter to the relevant collecting society. 

466.  Subsection 135ZZL(2) provides that a remuneration notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records kept by the retransmitter in accordance with the record keeping requirements in the new s.135ZZN.  Subsection 135ZZL(3) provides that a remuneration notice comes into force on the day it is given to the collecting society.  It may come into force on an earlier day if this is specified in the notice.  The remuneration notice remains in force until it is revoked (see the new s.135ZZR). 

New s.135ZZM - Amount of equitable remuneration

467.  Section 135ZZM governs the payment of equitable remuneration pursuant to remuneration notices for the retransmission of underlying copyright material contained in free-to-air broadcasts.  Subsection 135ZZM(1) provides that the amount of equitable remuneration payable to the collecting society for each retransmission made by the retransmitter while the notice is in force is the amount determined by agreement between the retransmitter and the collecting society.  If the retransmitter and the collecting society fail to agree as to the amount then either of them can apply to the Copyright Tribunal and the Tribunal may determine the amount. 

468.  Subsection 135ZZM(2) provides that after a period of 12 months has elapsed from the time the Copyright Tribunal made a determination for remuneration, either the retransmitter or the collecting society may apply to the Tribunal for a new determination in relation to the retransmissions made by or on behalf of the retransmitter.  Subsection 135ZZM(3) provides that different amounts can be determined in relation to different classes of works, sound recordings or films.  Such amounts can be determined either by agreement or by the Tribunal.

New s.135ZZN - Record system

469.  New s.135ZZN establishes the requirements for a records system for the retransmissions made.  Subsection 135ZZN(1) requires a retransmitter to establish and maintain a record system if the retransmitter gives a remuneration notice to a collecting society.  Subsection 135ZZN(2) provides for the content of the records and record system.  The record system must provide for a record to be kept of the title of each program included in each retransmission of each broadcast made by each broadcaster specified in the remuneration notice.  Subsection 135ZZN(3) provides that the record system must be agreed between the retransmitter and the collecting society.  If the retransmitter and the collecting society cannot agree on the record system then either of them can apply to the Copyright Tribunal and the Tribunal may determine the system. 

New s.135ZZP - Inspection of records etc

470.  New s.135ZZP permits a collecting society to assess  the number of retransmissions and inspect the relevant records of the retransmitter held on the premises, subject to certain conditions being met.  In order to undertake such an inspection, the collecting society must notify the retransmitter in writing that the society wishes to inspect records or assess retransmissions as detailed in ss.135ZZP(1)(a), (b) and (c).  Under these paragraphs, the collecting society may assess the number of retransmissions carried out at the retransmitter’s premises and may inspect records relevant to the making of retransmissions under the new s.135ZZK.  The collecting society may also inspect other records relevant to the assessment of equitable remuneration payable to the society.  Under s.135ZZP(1), the inspection must be carried out on an ordinary working day which is at least 7 days after the day on which the notice is given. 

471.  Subsection 135ZZP(2) provides that the inspection must take place during ordinary working hours between 10 am and 3 pm.  Subsection 135ZZP(2) further provides that a person authorised in writing by the collecting society may enter the retransmitter’s premises in order to carry out the assessment or inspection specified in the notice.

472.  Subsection 135ZZP(3) provides that a retransmitter must take all reasonable precautions and exercise reasonable diligence to ensure that the person undertaking the inspection is provided with all reasonable and necessary facilities and assistance in order to effectively exercise their inspection powers.  If a retransmitter does not do so, then the retransmitter is guilty of an offence under s.135ZZP(4) punishable by a maximum fine not exceeding 10 penalty units.

New s.135ZZQ - Identity cards

473.  New s.135ZZQ provides the requirements relating to the use of an identity card by a person authorised by a collecting society to carry out an assessment or inspection under the new s.135ZZP(2).  Subsection 135ZZQ(1) provides that the chief executive officer (however described) of a collecting society must issue an identity card in the prescribed form to each person authorised to carry out an assessment or inspection under s.135ZZP(2).  This identity card must contain a recent photograph of the person.

474.  Subsection 135ZZQ(2) provides that if an authorised person who attends or enters the retransmitters premises for the purpose of s.135ZZP(2) fails to produce his or her identity card, he or she must not enter or remain on the premises or exercise any other powers under s.135ZZP(2).  This subsection applies where the authorised person is asked to produce his or her card by the person apparently in charge of the premises.

475.  Subsection 135ZZQ (3) provides that an authorised person is guilty of an offence punishable on conviction by a fine not exceeding 1 penalty unit if he or she fails to, immediately after he or she stops being an authorised person, return the identity card to the relevant collecting society.

476.  Whilst exercising powers under s.135ZZP(2), an authorised person must carry his or her identity card at all times (s.135ZZQ(4)).

New s.135ZZR - Revocation of remuneration notice

477.  New s.135ZZR provides that a remuneration notice may be revoked at any time by the relevant retransmitter providing written notice to the relevant collecting society.   The revocation takes effect 3 months after the date of the notice or on a later specified day.

New section 135ZZS - Request for payment of equitable remuneration

478.  New s.135ZZS(1) provides that a collecting society may request a retransmitter to pay equitable remuneration (payable under the new s.135ZZM) as specified in a remuneration notice.  This request must be in the form of a written notice.  The amount of equitable remuneration must be paid within a reasonable time after the date of the notice.  Subsection 135ZZS(2) provides that the collecting society may recover the amount from the retransmitter as a debt if the amount is not paid in accordance with the request.  Action to recover the debt may be brought in the Federal Court of Australia or any other court of competent jurisdiction.

New Division 3 - Collecting societies

New s.135ZZT - Collecting societies

479.  New s.135ZZT provides for the approval of certain collecting societies.  Under s.135ZZT(1), the Attorney-General may declare a body to be a collecting society for relevant copyright owners or classes of relevant copyright owners.  This declaration must be as specified in a notice in the Gazette .

480.  Subsection 135ZZT(2) has the effect that a subsequent declaration of a collecting society for a class of copyright owners will override any previous declaration in relation to the same class.  The previously declared collecting society will cease to be the relevant collecting society on the day that the subsequent declaration is made.  Any remuneration notice given to the previously declared collecting society will cease to be in force to the extent that it applies to that class of copyright owners.

481.  Subsection 135ZZT(3) provides a number of conditions that a body must meet in order to be eligible to be declared a collecting society under s.135ZZT(1).  A collecting society must be an incorporated company limited by guarantee.  All persons who are included in a class of relevant copyright owners to be specified in the declaration must be entitled to become members of the society.  The society’s rules must prohibit the payment of dividends to its members.  Further, the society’s rules must contain such other provisions as are prescribed to ensure that the interests of the members of the society are adequately protected.  These other provisions should include provisions concerning collection and distribution of amounts of equitable remuneration; payment of the administrative costs of the collecting society from the amounts collected; holding on trust of amounts for copyright owners who are not members of the society; and access to the society’s records by its members.

482.  Subsection 135ZZT(4) provides that the Attorney-General may refuse to declare a body to be the collecting society for a specified class of copyright owners for which there is another declared collecting society.  However, the Attorney-General may make such a declaration when satisfied that to do so would be in the best interests of the specified class of copyright owners having regard to the numbers of members of the first collecting society and the scope of the first society’s activities.

New s.135ZZU - Revocation of declaration

483.  New s.135ZZU provides that the Attorney-General may, by notice in the Gazette , revoke the declaration of a body as a collecting society.  To do so, the Attorney-General must be satisfied that the collecting society: is not functioning adequately; is not acting in accordance with its rules or in the best interests of its copyright owner members; has altered its rules so that they no longer comply with the requirements in the new ss.135ZZT(3)(c) or (d); or has refused or failed, without reasonable excuse, to comply with the requirements in the new ss.135ZZV or 135ZZW in relation to annual reports, accounts and amendments of rules.

New s.135ZZV - Annual report and accounts

484.  New s.135ZZV provides a number of rules in relation to collecting societies’ annual reports and accounts.  Under s.135ZZV(1), a collecting society must prepare an end of financial year operations report.  The society must send a copy of this report to the Attorney-General as soon as practicable after the end of each financial year.  Subsection 135ZZV(2) provides that, within 15 sitting days of receipt of the report, the Attorney-General must table a copy of the annual report in the House of Representatives and the Senate.

485.  Subsection 135ZZV(3) requires a collecting society to keep accounting records that correctly record and explain the society’s transactions and financial position.  This extends to records of transactions where the society is a trustee.  The records must be kept in a manner that will enable true and fair accounts to be prepared that can be conveniently and properly audited (s.135ZZV(4)).

486.  Subsection 135ZZV(5) prescribes that at the end of each financial year, a collecting society must (as soon as practicable) have its accounts audited and send a copy of the audited accounts to the Attorney-General.  The auditor is not to be a member of the society.  Under s.135ZZV(6), a collecting society is required to give its members reasonable access to copies of all reports and audited accounts prepared under this section.

487.  Subsection 135ZZV(7) makes clear that this section does not affect any obligations of a collecting society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated.

New s.135ZZW - Amendment of rules

488.  New s.135ZZW provides that if a collecting society alters its rules, it must send a copy of the altered rules to the Attorney-General within 21 days.  The altered rules must be accompanied by a statement that sets out the effect of the alteration and the reasons why it was made.

New Division 4 - Interim retransmissions

489.  New Division 4 contains provisions for retransmissions made during an interim period where no collecting society has been declared.

Section 135ZZX - Appointment of notice holder

490.  New s.135ZZX provides that the Attorney-General may appoint a person to be the notice holder for the purposes of Division 4.  This appointment is to be made by notice in the Gazette .

New s135ZZY - Retransmitting before declaration of collecting society

491.  New s.135ZZY provides that the copyright in a work, sound recording or film included in a retransmission of a free-to-air broadcast is not infringed by the making of a retransmission before the declaration of a collecting society if three conditions are met.  First, at the time of the retransmission, there must not have been a declared collecting society.  Second, there must have been in force a notice given by (or on behalf of) the retransmitter to the notice holder in accordance with the new s.135ZZZ(1).  Third, the retransmitter must comply with the record keeping requirements in s.135ZZN.

New s.135ZZZ - Notices by retransmitters

492.  New s.135ZZZ provides a number of interim requirements for notices under the statutory licence scheme where a collecting society has not been declared.  Subsection 135ZZZ(1) provides that a retransmitter may undertake to pay equitable remuneration to a collecting society, when it is declared, for retransmissions made by (or on behalf of) the retransmitter while the notice is in force.  The undertaking is in the form of a notice in writing given by (or on behalf of) the retransmitter to the notice holder.  Notice may be given at any time before the declaration of the first collecting society.  Subsection 135ZZZ(2) provides that a notice must specify that the amount of equitable remuneration is to be assessed on the basis of the records kept by the retransmitter in accordance with the record keeping requirements in the new s.135ZZN. 

493.  Subsection 135ZZZ(3) provides that a notice comes into force on the day it is given to the notice holder.  It may also come into force on a later day if this is specified in the notice.  The notice remains in force until it is revoked.  Under s.135ZZZ(4), a notice may be revoked at any time by the retransmitter by a written notice given to the notice holder.  Such revocation may take effect on the date of the revocation notice or on a later specified date.

New s.135ZZZA - Record keeping requirements

494.  Section 135ZZZA provides that the new ss.135ZZM (amount of equitable remuneration) and 135ZZN (record system) will apply in the interim if a retransmitter gives a notice to the notice holder under the new s.135ZZN.  Where such a notice is provided, ss.135ZZM and 135ZZN should be read so that references to a collecting society are references to the notice holder and references to a remuneration notice are references to a notice under s.135ZZZ.

New s.135ZZZB - Effect of declaration of collecting society

495.  New s.135ZZZB provides for the transition from a notice holder to a collecting society upon the declaration of a collecting society.  Subsection 135ZZZB(1) deals with the situation where one or more collecting societies are declared, and as a result there is a collecting society for all relevant copyright owners.  In this situation, a notice given by a retransmitter to the notice holder under s.135ZZZ ceases to have effect as such a notice, but is instead taken to be a remuneration notice given to the relevant collecting society or societies.  The remuneration notice is taken to have come into force on the same day as the notice came into force.  For this subsection to operate, the notice under s.135ZZZ must have been in force immediately before the day of the declaration of the collecting society or societies.

496.  Subsection 135ZZZB(2) deals with the situation where one or more collecting societies are declared for one or more, but not all, classes of relevant copyright owners.  In this situation, a notice given by a retransmitter to the notice holder ceases to have effect as such a notice in relation to the classes of copyright owners whose interests are being represented by the declared collecting societies.  Such a notice is instead taken to be a remuneration notice given to the relevant collecting society or societies.  The remuneration notice is taken to have come into force on the same day as the notice came into force.  For this subsection to operate, the notice must have been in force immediately before the day of the declaration of the collecting society or societies.  Paragraph 135ZZZB(2)(d) provides that the notice given to the notice holder continues to have effect for all copyright owners whose interests are not being represented by the collecting society or societies.

497.  Subsection 135ZZZB(3) provides that once a notice provided to a notice holder is taken to be a remuneration notice given to a collecting society, the retransmitter must send copies of all records made under s.135ZZN to the relevant collecting society.  This must occur within 21 days after the declaration of the collecting society.  The records that must be sent are those made on or after the day that the notice is taken to have come into force.

New Division 5 - Miscellaneous

New s.135ZZZC - Relevant copyright owner may authorise retransmitting

498.  New s.135ZZZC makes clear that nothing under this new Part affects the right of the owner of the underlying copyright material included in a free-to-air broadcast to grant a licence authorising a retransmitter to make a retransmission of the free-to-air broadcast without infringing that copyright.

New s.135ZZZD - Copyright not to vest under this Part

499.  New s.135ZZZD makes clear that a retransmission of a free-to-air broadcast does not vest copyright in any work or other subject-matter in any person. 

New s.135ZZZE - Licence to retransmit does not authorise copyright infringements

500.  New s.135ZZZE clarifies that where the owner of copyright in a free-to-air broadcast licences the retransmission of a free-to-air broadcast, the owner is not taken to have authorised any copyright infringement in underlying copyright material included in the broadcast. 

Item 201.    Subsection 136(1) (paragraphs (a) and (b) of the definition of licence )

501.  Item 201 repeals paragraphs (a) and (b) of the definition of “licence” and inserts new paragraphs (a) and (b).  The new paragraph (a) effectively repeats the current definition. It specifically refers to a licence “to electronically transmit a work or an adaptation of a work in a transmission (other than in a broadcast) for a fee payable to the person who made the transmission”. This is intended to have the effect of including in the definition of “licence” the elements of the cable diffusion right which are not covered by the new definition of “broadcast” (see Item 1).  The purpose of this amendment is to maintain the current scope of the licence under s.136(1)(a) of the Act.  

502.  New paragraph (b) effectively extends the current definition of “licence” in relation to sound recordings to include the subscription broadcasting of sound recordings.

Item 202.    Subsection 152(1) (paragraph (c) of the definition of broadcaster)

503.  Item 202 amends paragraph (c) of the definition of “broadcaster” in s.152(1) to omit “ 1992 ; or” and substitute “ 1992 .”  This amendment is a consequence of the repeal of s.152(1)(d) in Item 203.

Item 203.    Subsection 152(1) (paragraph (d) of the definition of broadcaster )

504.  Item 203 repeals paragraph (d) of the definition of “broadcaster” in s.152(1).  This amendment is a consequence of the amendments made to s.91 by Item 85.

Item 203A.  Subsection 153A(1)

505.  Item 203A repeals s.153A(1) of the Act and substitutes a new s.153A(1).  This is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Item 105).

Item 203B.  Subsection 153A(2)

506.  Item 203B amends s.153A(2) of the Act by omitting the words “or subsection 135J(1)” and substituting the words “, subsection 135J(1) or subsection 135JA(1)”.  This is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Item 105).

Item 203C.  Subsection 153A(2)

507.  Item 203C amends s.153A(2) of the Act by inserting the words “and communicating” after the words “the making”.  This is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Item 105).

Item 203D.  Paragraph 153A(3)(a)

508.  Item 203D amends s.153A(3)(e) of the Act by inserting the words “and communicated” after the words “are made”.  This is a consequence of the extension of Part VA to the communication of broadcasts (see Item 105).

Item 203E.  Subsection 153A(4)

509.  Item 203E amends s.153A(4) of the Act by inserting the words “and to communications of such copies” after the word “broadcasts”.  This is a consequence of the extension of Part VA to communication of broadcasts (see Item 105).

Item 203F.  Subsection 153A(5)

510.  Item 203F amends s.153A(5) of the Act by omitting the words

“, broadcast, collecting society and institution” and substituting the words “and collecting society”.  The effect of this is the removal of the reference to “broadcast” and “institution” from s.153A(5) of the Act.  This is a technical amendment to ensure consistent terminology in s.153A of the Act.  The term “broadcast”, which previously was defined to have the same meaning as in Part VA, is now defined in Item 1 of the Bill.

Item 204.  After section 153B

511.  Item 204 inserts a new s.153BA which provides for applications to the Copyright Tribunal under s.135JA(3) (“Agreed notice”). 

512.  New s.153BA(1) provides that the parties to an application to the Copyright Tribunal under s.135JA(3) for the determination of the matters and processes constituting an agreed system, are the relevant collecting society and administering body.

513.  New s.153BA(2) provides that if such an application is made to the Tribunal, it must consider the application after giving the parties an opportunity to present their cases.  The Tribunal must then make an order determining the agreed system.

514.  New s.153BA(3) provides that in determining the agreed system, the Tribunal may have regard to such matters, if any, as are prescribed.

515.  New s.153BA(4) provides that the terms “administering body” and “collecting society” have the same meanings as defined in Part VA of the Act.

Item 204A.  Before section 153C

516.  Item 204A inserts a new s.153BB which provides for applications to the Copyright Tribunal under s.135ZME(3) (certain illustrations in electronic form). 

517.  Subsection153BB(1) provides that the parties to an application to the Copyright Tribunal under new s.135ZME(3) for the determination of the division of an amount of remuneration are the relevant copyright owners. 

518.  New s.153BB(2) provides that if an application is made to the Tribunal under s.135ME(3), it must consider the application after giving the parties an opportunity to present their cases.  The Tribunal must then make an order determining the division of the amount of remuneration between the parties in a way the Tribunal thinks is equitable.

519.  New s.153BB(3) provides that in making such an order, the Tribunal must have regard to such matters, if any, as are prescribed.

Item 205.    Subsection 153C(1)

520.  Item 205 amends s.153C(1) to insert “or 135ZWA(1)” after “135ZW(1)”.  This amendment is consequential to the extension of the jurisdiction of the Copyright Tribunal to determine the amount of equitable remuneration payable in relation to electronic use notices.  The heading of s.153C is consequentially amended to read “Applications to the Tribunal under section 135ZZV or subsection 135ZW(1) or 135ZWA(1)”.

Item 206.    Subsection 153C(1)

521.  Item 206 amends s.153C(1) to insert the words “or licensed communications” after the word “copies”.  This amendment is a consequence of the extension of the Copyright Tribunal’s jurisdiction to electronic use notices.

Item 207.    Subsection 153C(2)

522.  Item 207 amends s.153C(2) to insert “or 135ZWA(1)” after “135ZW(1)”.  This amendment is a consequence of the extension of the Copyright Tribunal’s jurisdiction to electronic use notices.

Item 208.    At the end of subsection 153C(2)

523.  Item 208 amends s.153C(2) to insert the words “or licensed communication” at the end of the subsection.  This amendment is a consequence of the extension of the Copyright Tribunal’s jurisdiction to electronic use notices.

Item 209.    Subsection 153C(5)

524.  Item 209 repeals s.153C(5) and inserts new s.153C(5), which states that the terms “administering body”, “collecting society”,  “licensed communication” and “licensed copy” have the same meaning as in Part VB. 

Item 210.    After section 153D

525.  Item 210 inserts new s.153DA to provide for applications to the Tribunal under s.135ZWA(2).  This amendment is a consequence of the amendments made to Part VB.  The amendment provides the Copyright Tribunal with jurisdiction to determine the matters and processes, and any other related matters, constituting an electronic use system.

526.  Subsection 153DA(1) provides that where an application is made under s.135ZWA(2) to determine an electronic use system, the relevant parties to the application are the collecting society and the administering body.  Subsection 153DA(2) provides that if such an application is made to the Tribunal, it must consider the application after giving the parties an opportunity to present their cases.  The Tribunal must then make an order determining the matter.

527.  In making such an order, the Tribunal may have regard to such matters, if any, as are prescribed (s.153DA(3)).  Subsection 153DA(4) provides that the terms “administering body”, “collecting society”, “licensed communication” and “licensed copy”, which are used in this new section, have the same meanings as in Part VB.

Item 211.    After section 153L

528.  Item 211 inserts new s.153M to provide for applications to the Tribunal under s.135ZZM(1).  This amendment is a consequence of the introduction of the new statutory licence for the retransmission of free-to-air broadcasts (new Part VC).

529.  Subsection 153M(1) provides that parties to an application to the Tribunal under the new s.135ZZM(1) for the determination of the amount of equitable remuneration payable to a collecting society in relation to the retransmission of a free-to-air broadcast are the collecting society and the retransmitter.  If such an application is made to the Tribunal, it must consider the application after giving the parties an opportunity to present their cases.  The Tribunal must then make an order determining the amount that it considers to be equitable remuneration for the retransmission (s.153M(2)).  In making such an order, the Tribunal may have regard to such matters, if any, as are prescribed (s.153M(3)).  Subsection 153M(4) provides that such an order may be expressed to have effect in relation to retransmissions of free-to-air broadcasts made in reliance on the new s.135ZZK before the day on which the order is made. 

530.  Subsection 153M(5) makes clear that the terms “collecting society”, “free-to-air broadcast” and “retransmitter” as used in s.153M have the same meanings as in Part VC.

New s.153N - Application to the Tribunal under subsection 135ZZN(3)

531.  New s.153N extends the Copyright Tribunal’s jurisdiction to the determination of a record system under the new s.135ZZN(3).  Subsection 153N(1) provides that the parties to an application under s.135ZZN(3) for the determination of a record system are the collecting society and the relevant retransmitter.  Under s.153N(2), the Tribunal must consider the applications of the relevant parties, and, after providing them with an opportunity to present their cases, make an order determining the record system.  Subsection 153N(3) clarifies that a reference to the terms “collecting society” and “retransmitter” in this section have the same meanings as in Part VC.

Item 212.    Subsection 183(11)

532.  Item 212 amends s.183(11) to omit the word “copying” and substitute the terms “reproduction, copying or communication”.  The inclusion of the term “reproduction” is a consequence of the new use of this term in relation to works.  The inclusion of the term “communication” is a consequence of the expanded educational statutory licence introduced into Part VB of the Act.

Item 213.    Paragraph 184(1)(f)

533.  Item 213 amends s.184(1)(f) to omit the words “, by a person authorised to make the broadcasts by a class licence determined by that Authority under that Act or by a person prescribed for the purposes of subparagraph 91(a)(iii) or 91(c)(iii)” and substitute the words “or by a person authorised to make the broadcast by a class licence determined by that Authority under that Act”.  This amendment is a consequence of the amendments made to s.91 by Item 85.

Item 214.    Subsection 199(4)

534.  Item 214 repeals s.199(4).  This amendment is a consequence of both the introduction of a new broadly based communication right and the provision of a new licence scheme for the remuneration of the underlying rights holders in retransmitted free-to-air broadcasts.

Item 215.    Subsection 199(5)

535.  Item 215 amends s.199(5) to omit the words “either of the last two preceding subsections, the person causing the cinematograph film to be seen or heard, or the work, adaptation or cinematograph film to be transmitted, as the case may be, infringed the copyright concerned” and substitute the words “subsection (3), the person causing the cinematograph film to be seen or heard infringed the copyright in the film”.  This amendment is a consequence of the repeal of s.199(4) (see Item 214).

Item 216.    Subsection 199(6)

536.  Item 216 repeals s.199(6) and inserts new s.199(6).  The new subsection provides that for the purposes of s.199, a broadcast of a cinematograph film is an authorised broadcast only if it is made by, or with the licence of, the owner of the copyright in the film. 

Item 217.    Subsection 199(7)

537.  Item 217 repeals the current s.199(7) and inserts a simplified new s.199(7).  The amendment is a consequence of the amendments made to s.91 by Item 85.

Item 217A.  After section 203F

538.  Item 217A inserts a new s.203G (“Additional offences relating to declarations under subsections 116A(3) and 132(5F)”).

539.  New s.203G(1) provides that it is an offence to make a declaration in relation to the acquisition of a circumvention device or service, knowing that the declaration is false or misleading.  The penalty for contravention of this section is a maximum of 12 months imprisonment.

540.  New s.203G(2) provides that it is an offence to make a declaration in relation to the acquisition of a circumvention device or service, being reckless as to whether the declaration is false or misleading in a material particular.  The penalty for contravention of this section is a maximum of 6 months imprisonment.

541.  New s.203G(3) provides that it is an offence to dispose of or destroy, or cause to be disposed of or destroyed, a declaration in relation to the supply of a circumvention device or service, if the person knows or is reckless as to whether the prescribed retention period has not expired.  The penalty for contravention of this section is a maximum of 6 months imprisonment.

Item 218.    Subsection 203H(1)

542.  Item 218 amends s.203H(1) to omit the word “copy” wherever occurring and substitute the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill. 

Item 219.    Paragraph 203H(4)(a)

543.  Item 219 omits the words “a copy” from s.203H(4)(a) of the Act and substitutes the words “on a reproduction”.  This is a technical amendment to ensure consistent terminology in the Act.

Item 220.    Subsection 203H(5)

544.  Item 220 repeals s.203H(5) and inserts the new s.203H(5).  In effect, the amendment retains the provisions of current s.203H(5) but replaces the term “copy” with the term “reproduction” in relation to works.  The new subsection also is a slightly simplified version of the original subsection.

Item 221.    Subsections 203H(6) and (7)

545.  Item 221 amends ss.203H(6) and (7) to omit the word “copy” wherever occurring and substitute the word “reproduction”.  This amendment reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill. 

Item 222.    Subsection 203H(10)

546.  Item 222 repeals s.203H(10) and substitutes a new definition of reproduction.  The term is defined to include, in relation to a work or part of a work, a microform copy, a Braille version, a large print version, or a photographic version of the work, or of the part of the work.  This amendment reflects the change in terminology from “copy” to “reproduction” in relation to works that occurs throughout the Bill. 

Item 223.    Paragraphs 246(3)(b) and (c)

547.  Item 223 repeals ss.246(3)(b) and (c) and substitutes the new s.246(3)(b).  The amendment is consequential to the replacement of the broadcasting and cable diffusion right with the broader technology-neutral right of communication to the public.

Item 224.    Subsection 248A(1) (definition of indirect )

548.  Item 224 omits all the words appearing after “the performance” in s.248A(1).  The amendment is consequential to the broader definition of “broadcast” as a result of Item 1.

Item 225.    Section 248E

549.  Item 225 repeals s.248E that deals with references to transmission to subscribers to diffusion service.  The amendment is a consequence of the new broader definition of “broadcast” (see Item 1).

Item 226.    Paragraphs 248G(1)(a), (b) and (c)

550.  Item 226 repeals ss.248G(1)(a), (b) and (c) and inserts new ss.248G(1)(a) and (b).  In effect, the amendment retains the provisions of current 248G(1)(a) and (b) but removes reference to the cable diffusion right.  The amendment is a consequence of the new broader definition of “broadcast” (see Item 1).

Item 227.    Subsection 248G(3)

551.  Item 227 amends s.248G(3) to omit the words “, or causes an authorised recording of a performance to be transmitted to subscribers to a diffusion service,”.  The amendment is a consequence of the new broader definition of “broadcast” (see Item 1).

Item 228.    Subsection 248P(4)

552.  Item 228 repeals s.248P(4) which creates an offence to cause a protected live performance to be transmitted to subscribers to a diffusion service.  The amendment is a consequence of the new broader definition of “broadcast” (see Item 1).

Item 229.    Subsection 248P(7A)

553.  Item 229 amends s.248P(7A) to omit “(4)”.  This amendment is a consequence of the repeal of s.248P(4) (see Item 228).

Item 230.    Subsection 248P(8)

554.  Item 230 repeals s.248P(8) and inserts new s.248P(8).  The amendment modifies the current s.248P(8) so as to remove reference to the cable diffusion right and s.248P(4).  The amendment is a consequence of the new broader definition of “broadcast” (see Item 1) and the repeal of s.248P(4) (see Item 228).



SCHEDULE 2 - TRANSITIONAL PROVISIONS

555.  The new right of communication to the public is made up of two elements: “electronically transmit” and “make available online”.  The new right will replace the existing exclusive rights of broadcasting and transmission to subscribers of a diffusion service.  These rights will be included in the concept of “electronically transmit” in the new definition of communicate, to allow for new delivery mechanisms of copyright material.  Further, the amendment to the definition of “broadcast” will mean that both cable and wireless broadcasts will be included in the definition of “broadcast”.

556.  However, the new right is broader than both the present broadcast and diffusion rights, as it introduces the right of making available online.  This element of the right of communication is substantially different to the existing broadcast and cable transmission rights, and includes activities such as the uploading of material onto the Internet.  The introduction of a new right of communication to the public therefore creates implications for existing licensing or assignment contracts governing the broadcasting and cable transmission right.

557.  The transitional provisions in Schedule 2 are intended to clarify that existing arrangements dealing with the assignment or licensing of rights are not affected by the creation of the proposed right of communication to the public, nor the amended definition of “broadcast”. 

Item 1.      Definitions

558.  Item 1 provides definitions for terms used in Schedule 2.

559.  “Broadcasting right” is defined to mean the exclusive right under the Copyright Act to broadcast the work or other subject-matter.  It is therefore limited to “wireless telegraphy”.

560.  “Cable transmission right” is defined to mean the exclusive right under the Copyright Act to cause the work or other subject-matter, or a television program that includes it, to be transmitted to subscribers to a diffusion service.  This is also known as the cable diffusion right.

561.  “Commencing day” is defined to mean the day on which this Bill commences.

562.  “Copyright Act” is defined to mean the Copyright Act 1968 as in force immediately before the day on which this Bill commences.

Item 2.      Application of communication right

563.  Item 2 provides that on or after the commencing day, the right to communicate applies to all copyright material (excluding published editions) in which copyright subsisted immediately before the commencement of this Bill.  Further, Item 2 provides that the communication right will subsist in such copyright material in the same way as it applies to copyright material (excluding published editions) made after the commencement of this Bill.

Item 3.      Assignments and licences

564.  Subitem 3(1) provides that a licence, contract or arrangement (including an assignment of copyright) that was in force immediately before the commencing day, and that relates to the broadcasting right or cable transmission right in a work or other subject-matter, continues to have effect on and after the commencing day as if the Copyright Act 1968 had not been amended by this Bill.  The Act (as in force before this Bill commences) therefore continues to apply in relation to the licence, contract or arrangement. 

565.  Subitem 3(1) is subject to any contrary intention appearing in the licence, contract, arrangement or assignment.  For example, where the copyright owner has specifically licensed future rights, or an activity which involves the exercise of the new elements of the communication right (eg, uploading the work onto an Internet server), an existing contract would be construed to licence the relevant additional rights conferred by the Bill.  An assignment of all rights could also be taken as evidence of such a contrary intention.  However, a specific reference to only one element of the communication right (for example, the making available of a work online), should not be construed as including the remainder of the communication right (ie, the right to electronically transmit).