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Copyright Amendment (Importation of Sound Recordings) Bill 1999 [2001]

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1999

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

COPYRIGHT AMENDMENT (IMPORTATION OF

SOUND RECORDINGS) BILL 1999

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General

the Honourable Daryl Williams AM QC MP)

 



COPYRIGHT AMENDMENT (IMPORTATION OF SOUND RECORDINGS) BILL 1999

 

GENERAL OUTLINE

This Bill will amend the Copyright Act 1968 to ensure that it will be possible to parallel import and sell sound recordings, particularly music compact discs (CDs), whether or not they also contain or are accompanied by other copyright material.

In 1998, the Parliament passed legislation amending the Copyright Act to permit parallel importation and sale of legitimate copies of sound recordings.  The aim of the Copyright Amendment Act (No. 2) 1998 was to promote competition among distributors and produce lower prices of sound recordings for consumers, primarily music CDs.

Some owners of Australian copyright have asserted that sound recordings to which other copyright material, such as film clips have been added, may not be imported without their consent.  Contrary to the spirit of the 1998 amendments, they have forced numerous retailers, under threat of legal proceedings for infringement of copyright, to remove from sale such sound recordings, known as “enhanced CDs”.  The assertion of control over parallel importation of, for example, film material, on an enhanced CD, in effect, enables holders of the copyright in the sound recording to restrain parallel importation of the sound recording.

The purpose of this Bill is to ensure the continued effectiveness of the 1998 legislation by preventing Australian copyright owners from restraining importation of enhanced CDs or by asserting control over importation of other copyright protected subject-matter that is included with the sound recording. 

The Bill achieves its objective by establishing a presumption that enhanced CDs are sound recordings and deeming other copyright material embodied in an article in which a sound recording is embodied, or other copyright subject-matter with or in the container or packaging of the article, to be an “accessory” to the sound recording.  Under the amendments made in 1998, non-infringing accessories to non-infringing sound recordings may be parallel imported.  Accordingly, any legitimate sound recording produced with due regard to any other copyrights on or with the article, will be open to parallel importation.

FINANCIAL IMPACT STATEMENT

The proposed amendments are expected to have little impact on Commonwealth expenditure or revenue.



 

 

NOTES ON CLAUSES

Clause 1 - Short title

Clause 1 provides that when the Bill is enacted, it will be known as the Copyright Amendment (Importation of Sound Recordings) Act 1999 .  The title makes plain that the intended focus of the Bill is the importation of sound recordings.

Clause 2 - Commencement

2.         Clause 2 provides for the Act to commence on the day it receives Royal Assent.  It will thus only affect articles imported into Australia on and after that date.  This clause also provides for items 3 and 4 in the Bill to commence immediately after the commencement of amendments made by the Copyright Amendment Act (No. 1) 1998, which are not yet in force, to introduce new s.44C in the Act. 

Clause 3 - Schedules

3.         Clause 3 is a machinery provision providing for the Act or Acts specified in the Schedule to be amended or repealed as specified and to make clear  that other provisions in the Schedule are operative according to their terms.

Schedule 1 - Items 1, 3, 4, 5 and 6

4.         These items make a small technical change to the definition of “non-infringing accessory” in s.10(1),  and to ss. 44C(1), 44C(2) (s.44C is not yet in force), ss.44D(4) and 44D(5) respectively.  The changes are to insert “or is” in these provisions in reference to an “accessory” to reflect the effect of the form of new s.10AB which states that the work itself is taken to be an “accessory”, not merely embodied in, or included on, an “accessory”. 

Item 2 - Certain cinematograph films etc to be taken to be accessories to sound recordings

5.         Item 2 inserts a new s.10AB in the Act after s.10AA.  This provision operates to extend the scope of the definition of “accessory” (see s.10(1) of Act) in relation to articles that have sound recordings embodied in them.

6.         New s.10AB encompasses music CDs and, in particular, music CDs that have in them, or recorded onto them, other material that could be subject to copyright.  It also includes a sound recording accompanied by some other form of work protected by copyright, such as a photograph or a poster, that is included with or in the packaging or container in which the article is packaged or contained.

7.         In all such cases where a likely use of the article, (using current technology the article is expected to be a CD), is to play it by using a machine that, ordinarily used, is unable to show visual images, any additional copyright material is treated as an “accessory” to the article.

8.         The application of the provision is confined to articles that have a particular focus on sound or music because a likely use of such an article is to play it in a sound-only player.  While most copyright subject-matter can be digitised, digital video disks (DVD) and CD ROM productions which include sound material or sound tracks and visual materials do not presently have a likely use of being played in a CD player.  Proposed new s.10AB(2) provides a non-exhaustive list of criteria to which regard is to be had in determining this likely use of the article.

9.         New ss.10AB(1)(a) and (1)(b) provide the criteria for the application of the expanded meaning of an “accessory” in relation to a sound recording.  Paragraph (1)(a) requires that the article must have embodied in it a sound recording.  Paragraph (1)(b) requires that it is a likely use of the article to play it in a device that as ordinarily used, with or without the help of another device, is unable to cause visual images to be displayed.

10.       If these conditions are satisfied, the article is conclusively taken to be a sound recording, that is, not a film or multimedia product.  However, this conclusive determination only applies in relation to ss.44C and 44D, and ss.112C and 112D of the Act.  The relevant parts of these provisions exclude from infringement the importation of non-infringing accessories and the subsequent commercial use of the articles so imported.  The effect is that the rights of the owners of any copyrights in the accessory, except for importation and subsequent commercial distribution, are maintained.  For example, unlicensed reproduction or public performance or adaptation remain as an infringement of copyright.

11.       New s.10AB(1)(c) addresses other subject-matter that is also embodied in the article.  It specifically mentions cinematograph film.  Control over the importation of film is the basis on which attempts have been made to prevent parallel importation of music CDs.  However, any other copyright protected subject-matter embodied in the article that meets the criteria in paragraphs (1)(a) and (1)(b) is also taken to be an “accessory” under the terms of this paragraph.

12.       New s.10AB (1)(d) completes the range of copyright protected subject-matter that could accompany the sound recording.  It provides for any work or published edition included with or in the packaging or container of the article to be regarded as an “accessory” to the sound recording; in effect, mirroring the treatment accorded copyright protected subject-matter embodied in the article containing the sound recording.

13.       New  s.10AB(2) provides a non-exhaustive list of criteria to be taken into account in determining whether a likely use of the article is to play it in a machine intended only to play sounds.  These are: the nature of the article; the way in which the article is marketed; the nature of any descriptive material in or on the article, or associated with it; the nature of the sound embodied in the article and the nature of any cinematograph film, work or other subject matter embodied in the article.

Item 7

14.       Item 7 adds new ss.(2A) and (2B) to s.112D of the Act to give operative effect to the exclusion from the application of ss.102 and 103, of film or other subject matter covered by Part IV of the Act embodied in an article that, on the basis of new s.10AB, is taken to be an “accessory” to a sound recording.  The exclusion operates in relation to such accessories if they are non-infringing accessories to a non-infringing copy of a sound recording.