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Monday, 11 November 1991
Page: 2837

  Consideration resumed from 6 November, of House of Representatives message.

  House of Representatives message:

  Schedule of the amendments made by the House of Representatives to the amendments of the Senate agreed to by the House of Representatives.  

Amendment No. 1

That the Senate's Amendment No. 1 be amended by omitting from proposed clause 3 all the words from and including "amended" and substituting the following:

  "amended:

    (a)by omitting `The copyright' and substituting `Subject to section 44A, the copyright';

    (b)by omitting `where, to his knowledge,' and substituting `if the importer knew, or ought reasonably to have known, that'.".

Amendment No. 2

That the Senate's Amendment No. 2 be amended by omitting from proposed clause 4 all the words from and including "amended" and substituting the following:

    "amended:

    (a)by omitting from subsection (1) `The copyright' and substituting `Subject to section 44A, the copyright';

    (b)by omitting from subsection (1) `where, to his knowledge,' and substituting `if the importer knew, or ought reasonably to have known, that'.".

Amendment No. 3

That the Senate's Amendment No. 3 be amended:

    (a)by omitting from proposed subsection (3) "verifiable order" and substituting "written order, or a verifiable telephone order,";

    (b)by inserting in proposed paragraph (3)(b) "verifiable" after "makes a".

Amendment No. 4

  That the Senate's Amendment No. 4 be amended:

    (a)by omitting "subsection" and substituting "subsections";

    (b)by omitting from proposed subsection (3A) all the words from and including "a number of copies" and substituting the following:

    "2 or more copies of a non-infringing book into Australia if:

      (a)the importation is for the purpose of filling a written order, or a verifiable telephone order, placed with the person by or on behalf of a library, other than a library conducted for the profit (direct or indirect) of a person or organisation; and

      (b)in the case of a written order—the order contains a statement, signed by the person placing the order, to the effect that the library does not intend to use any of the books for a purpose mentioned in paragraph 37(a), (b) or (c); and

      (c)in the case of a telephone order—the person placing the order makes a verifiable statement to the effect referred to in paragraph (b); and

      (d)the number of copies so imported is not more than the number of copies so ordered";

    (c)by adding at the end of proposed subsection (3A) the following proposed subsection:

      "`(3B) Without limiting the ways in which a telephone order under subsection (3) or (3A), or a statement under paragraph (3)(b) or (3A)(c) relating to such an order, may be verified, such an order or statement is, for the purposes of this section, taken to be verifiable if the person who takes the order, or to whom the statement is made, makes a written note of the details of the order or statement when, or immediately after, the order is placed, or the statement is made, as the case may be.'.".

Amendment No. 6

That the Senate's Amendment No. 6 be amended by omitting from proposed clause 6 all the words from and including "amended" and substituting the following:

    "amended:

    (a)by omitting `A copyright' and substituting `Subject to section 112A, a copyright';

    (b)by omitting `where, to his knowledge,' and substituting `if the importer knew, or ought reasonably to have known, that'.".

Amendment No. 7

That the Senate's Amendment No. 7 be amended by omitting from proposed clause 7 all the words from and including "amended" and substituting the following:

    "amended:

    (a)by omitting from subsection (1) `A copyright' and substituting `Subject to section 112A, a copyright';

    (b)by omitting from subsection (1) `where, to his knowledge,' and substituting `if the importer knew, or ought reasonably to have known, that'.".

Amendment No. 8

  That the Senate's Amendment No. 8 be amended:

    (a)by omitting from proposed subsection (3) "verifiable order" and substituting "written order, or a verifiable telephone order,";

    (b)by inserting in proposed paragraph (3)(b) "verifiable" after "makes a".

Amendment No. 9

  That the Senate's Amendment No. 9 be amended:

    (a)by omitting "subsection" and substituting "subsections";

    (b)by omitting from proposed subsection (3A) all the words from and including "a number of copies" and substituting the following:

    "2 or more copies of a non-infringing book into Australia if:

      (a)the importation is for the purpose of filling a written order, or a verifiable telephone order, placed with the person by or on behalf of a library, other than a library conducted for the profit (direct or indirect) of a person or organisation; and

      (b)in the case of a written order—the order contains a statement, signed by the person placing the order, to the effect that the library does not intend to use any of the books for a purpose mentioned in paragraph 102(a), (b) or (c); and

      (c)in the case of a telephone order—the person placing the order makes a verifiable statement to the effect referred to in paragraph (b); and

      (d)the number of copies so imported is not more than the number of copies so ordered";

    (c)by adding at the end of proposed subsection (3A) the following proposed subsection:

      "`(3B) Without limiting the ways in which a telephone order under subsection (3) or (3A), or a statement under paragraph (3)(b) or (3A)(c) relating to such an order, may be verified, such an order or statement is, for the purposes of this section, taken to be verifiable if the person who takes the order, or to whom the statement is made, makes a written note of the details of the order or statement when, or immediately after, the order is placed, or the statement is made, as the case may be.'.".

  Schedule of the amendments made by the Senate to which the House of Representatives has disagreed.

  No. 5—Clause 5, page 4, after proposed section 44A, add the following section:

Applications to Tribunal relating to Australian versions

  "`44B. (1) If the owner of the copyright in a work that:

  (a)has been first published, or is intended to be first published, on or after the commencing day in a country other than Australia; and

  (b)is not intended to be published in Australia before the end of the period of 30 days after that first publication;

  has made contractual arrangements to publish an Australian version of the work in Australia, the owner may, before the end of that period, make a written application to the Tribunal for an order that this section applies to the work.

  `(2) If, after receiving an application, the Tribunal is satisfied that:

  (a)the owner of the copyright genuinely intends to publish the Australian version in Australia; and

  (b)the proposed version amounts to or constitutes a substantial revision or modification of the work for Australian consumption;

  the Tribunal is to make an order that this section applies to the work.

  `(3) Subsection 44A(1):

  (a)does not apply in relation to the copyright in the work while an application under subsection (1) in relation to the work is pending; and

  (b)does not apply in relation to the copyright in the work if an order is made.

  `(4) Subject to this section, the copyright in a work in respect of which an application under subsection (1) is pending or an order is made is not infringed by a person who, without the licence of the owner of the copyright, imports a copy (in this subsection called the `imported copy') of a hardback or paperback version of a non-infringing book into Australia for a purpose mentioned in paragraph 37(a), (b) or (c) if:

  (a)the person had ordered in writing from the copyright owner, or the owner's licensee or agent, one or more copies of that version of the book (not being second-hand copies or more copies than were needed to satisfy the person's reasonable requirements); and

  (b)when the person ordered the imported copy, the original order mentioned in paragraph (a) had not been withdrawn or cancelled by, or with the consent of, the person and:

      (i)at least 7 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not notified the person in writing that the original order would be filled within 90 days after it was placed; or

      (ii)at least 90 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not filled the order.

  `(5) Where:

(a)a book is imported into Australia for a purpose mentioned in paragraph 37(a), (b) or (c); and

(b)the importation does not, under this section, constitute an infringement of copyright in a published work;

  the use of the book for any such purpose does not constitute an infringement of the copyright in the work and subsection 38(1) does not apply to the book.

  `(6) For the purposes of paragraph (4)(b), a copyright owner, licensee or agent is not taken to have filled an order by a person for one or more copies of a version of a book unless and until the copyright owner, licensee or agent sends the copy, or all of the copies, as the case requires, to the person.

  `(7)  In this section:

`book' does not include:

  (a)a book whose main content is one or more musical works, with or without any related literary, dramatic or artistic work; or

  (b)a manual sold with computer software for use in connection with that software; or

  (c)a periodical publication;

  `commencing day' means the day on which the Copyright Amendment Act 1991 commences.'.".

  No. 10—Clause 8, page 5, after proposed section 112A, add the following section:

Applications to Tribunal relating to Australian versions

  "`112B. (1) If the owner of the copyright in a published edition that:

  (a)was first published on or after the commencing day in a country other than Australia; and

  (b)will not be published in Australia before the end of the period of 30 days after that first publication;

  has made contractual arrangements to publish an Australian version of the work in Australia, the owner may, after that first publication and before the end of that period, make a written application to the Tribunal for an order that this section applies to the work.

  `(2) If, after receiving an application, the Tribunal is satisfied that:

(a)the owner of the copyright genuinely intends to publish the Australian version in Australia; and

(b)the proposed version amounts to or constitutes a substantial revision or modification of the work for Australian consumption;

  the Tribunal is to make an order that this section applies to a published edition of the work.

  `(3) Subsection 112A(1):

(a)does not apply in relation to the copyright in a published edition of the work while an application in relation to the work is pending; and

  (b)does not apply in relation to the copyright in a published edition of the work if an order is made.

  `(4) Subject to this section, the copyright in a published edition of a work in respect of which an application under subsection (1) is pending or an order is made is not infringed by a person who, without the licence of the owner of the copyright, imports a copy (in this subsection called the `imported copy') of a hardback or paperback version of a non-infringing book into Australia for a purpose mentioned in paragraph 102(a), (b) or (c) if:

  (a)the person had ordered in writing from the copyright owner, or the owner's licensee or agent, one or more copies of that version of the book (not being second-hand copies or more copies than were needed to satisfy the person's reasonable requirements); and

  (b)when the person ordered the imported copy, the original order mentioned in paragraph (a) had not been withdrawn or cancelled by, or with the consent of, the person and:

  (i)at least 7 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not notified the person in writing that the original order would be filled within 90 days after it was placed; or

  (ii)at least 90 days had elapsed since the person placed the original order and the copyright owner, licensee or agent had not filled the order.

  `(5) Where:

(a)a book is imported into Australia for a purpose mentioned in paragraph 102(a), (b) or (c); and

  (b)the importation does not, under this section, constitute an infringement of copyright in a published edition of a work;

  the use of the book for any such purpose does not constitute an infringement of the copyright in the edition and subsection 103(1) does not apply to the book.

  `(6) For the purposes of paragraph (4)(b), a copyright owner, licensee or agent is not taken to have filled an order by a person for one or more copies of a version of a book unless and until the copyright owner, licensee or agent sends the copy, or all of the copies, as the case requires, to the person.

  `(7) In this section:

`book' does not include:

  (a)a book whose main content is one or more musical works, with or without any related literary, dramatic or artistic work; or

  (b)a manual sold with computer software for use in connection with that software; or

  (c)a periodical publication;

    `commencing day' means the day on which the Copyright Amendment Act 1991 commences.'.".

  Reasons of the House of Representatives for disagreeing to amendments Nos 5 and 10 of the Senate.

Senate amendment No. 5 is not acceptable because:

(1)It is contrary to the most important reform being introduced by the Bill, namely, to provide Australian readers with early access to all new overseas titles. It has been a very widespread complaint that there is often considerable delay before new overseas titles are published in Australia and that, in some cases, there is no publication in Australia at all. The Bill gives the publisher of a new overseas title 30 days in which to publish in Australia if the publisher wants to have control over distribution in Australia; if publication does not occur in that time, booksellers will be free to import copies without the publisher's licence.

(2)The Government does not accept that, as is proposed by the Senate amendment, a publisher of a new overseas title not published in Australia within 30 days should be able to retain some control over distribution of the book by reason of having made arrangements to publish an Australian version. If there is a perceived market for an Australian version, it will not be the same as the market for the original. But in principle, the gov  ernment rejects the notion that Australian readers should be denied full access to the original for a substantial period while readers in other countries have such access.

(3)Over and above the Government's objection to the Senate amendment in principle, there are several objections of detail, viz.:

  .there is no limit on the time that may be taken in bringing out the Australian version, so that full access to any version could be delayed indefinitely;

  .before importing copies of any new overseas title not published in Australia within 30 days, the importer would need to check whether an application had been made to the Copyright Tribunal by the publisher under the Senate amendment on the basis of a proposal to bring out an Australian version;

  .the Senate amendment makes no provision for any interested person, eg, an importer, to seek to be made a party to the application to the Copyright Tribunal;

  .the Copyright Tribunal has no discretion whether to make an order having the effect of restricting importation of the title, and has no power to rescind its order.

Senate amendment No. 10 is not acceptable for the same reasons as have been given in relation to amendment No. 5. In addition,

(1)the Government does not accept that any instance has been put forward of an Australian version of an overseas published edition; and

(2)there is also a confusion between works and published editions in the drafting of the amendment.

  Motion (by Senator Tate) proposed:

  That the Senate agrees to the amendments made by the House of Representatives to the Senate amendments Nos 1, 2, 3, 4, 6, 7, 8 and 9, and does not insist upon Senate amendments Nos 5 and 10 disagreed to by the House.