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Thursday, 12 August 2004
Page: 26428

Senator RIDGEWAY (10:35 PM) —I move Democrat amendments (16), (18), (19) and (21) to (23) on sheet 4361:

(16) Schedule 9, item 2, page 85 (lines 23 to 31), omit subsections 22(3B) and (3C).

(18) Schedule 9, item 8, page 88 (lines 26 and 27), omit paragraph (b) of the definition of new owner.

(19) Schedule 9, item 8, page 89 (lines 11 to 21), omit subsections 100AD(2) and (3).

(21) Schedule 9, item 10, page 94 (lines 24 and 25), omit paragraph (b) of the definition of performer.

(22) Schedule 9, page 95 (after line 16), after item 15, insert:

15A After section 135P


135PA Payment to performers (as owners of the copyright in sound recordings)

(1) Where a payment is made to a performer as the owner of the copyright in a sound recording in relation to:

(a) the making of a copy of a sound recording for the purpose of broadcasting; or

(b) the causing of a recording to be heard in public; or

(c) the broadcasting of a recording;

the payment must be made to a collecting society established by the Attorney-General, for that purpose, in accordance with section 135P.

(2) For the avoidance of doubt, a payment made to a performer in accordance with subsection (1) must not be made directly to the performer, another person or a company.

R(22A) Schedule 9, page 95 (after line 16), after item 15, insert:

15AB Paragraph 152(6)(c)

Omit “as those persons agree or, in default of agreement,”.

(23) Schedule 9, page 95 (after line 16), after item 15, insert:

15B Subsections152(8), (10) and (11)

Repeal the subsections.

We also oppose schedule 9 in the following terms:

(20) Schedule 9, item 9, page 92 (line 30) to page 93 (line 26), section 113C, to be opposed.

These amendments relate to performers' rights, which is a particularly important issue, mostly because of what the free trade agreement says or does not say on performers' rights. I remind the chamber that, back in 1996 during the election campaign, the Howard government committed to the introduction of rights for performers. Since then we have not seen anything come from the opportunities to meet this commitment. It is only at the insistence of other governments that our government is even prepared to look at this issue, namely in the form of the proposals in the free trade agreement. They are performers' rights essentially in name only. In all other respects the government is asking us to vote to enhance the rights that are already enjoyed by powerful record companies. That is the effect of this particular part of the free trade agreement.

The amendments we are proposing are the bare minimum necessary to take account of the inequities and inequalities of bargaining power between performers and big record companies with regard to performances in sound recordings. Our performers' rights amendments are essentially intended to achieve four main objectives: the first is to provide a regime for performers pursuant to which employment status is irrelevant; the second is to ensure the legislation provides an arrangement which is genuinely beneficial to performers; the third is to provide for a declared collecting society, as with other rights holders; and the last is to ensure that the rights regime does not provide performers with lesser rights than other rights holders.

The issue of performers' rights in the context of the free trade agreement epitomises, I think, the serious problems with the agreement generally because performers' rights have been in need of addressing for some years in this country. The issues involved are crucial for Australian performers regarding their rights in sound recordings and should be discussed more openly with the performer groups and individuals in Australia, and those whose interests are at stake should be able to make a contribution to the legislative changes. Certainly industry representatives have been active in their concerns about the lack of rights for performers. Unfortunately, they have received little attention due to the deal put together by the government and the ALP.

The government has an obligation to listen to the needs of Australians and to respond to them. Quite frankly, the Australian parliament should be where laws are made which so directly impact Australians in such a negative way. In particular where such crucial rights are being taken from performers or not enshrined in new law our democratic processes should not be circumvented in this way. That essentially is what is happening under the free trade agreement. We are making the discussion that we should be having in Australia subordinate to discussions that have taken place with the United States about what the new regime should be even for performers in this country.

It is an insult to the Australian public that this government thinks that between them and President George W. Bush they can come up with laws which Australia's parliament is held to ransom to approve. If the free trade agreement is not included in our domestic law, the United States is entitled to compensation. I ask the government how it is that this government feels entitled to put Australia in that position. The minister might want to clarify whether or not compensation is to be payable.

To oblige the parliament to pass laws detrimental to Australia in so many different areas through a trade agreement with the United States—policy making by trade negotiation with America—is not good enough as far as the process goes and certainly as far as the national interest is concerned. There should have been negotiation in a legislative process about balancing the interests of Australians, not about trying to find a balance between the interests of Australians and the interests of Americans. We should have looked first and foremost at the domestic situation, but that did not occur. The Prime Minister made his commitment way back in 1996, but we have not heard anything since then. Over the past eight years, we have had an opportunity to do something; we now have a government that is forced to respond in a free trade agreement on performers' rights, but only in name. It does not give them the rights that they are entitled to and which they should receive as creators in this country.

Our amendments are the result of in-depth consultation with industry representatives, specifically Lindy Morrison and the Media Entertainment and Arts Alliance. Lindy and Simon Whipp from MEAA have worked tirelessly for the sake of performers' rights and deserve to be acknowledged for the work they have done over many years. The provisions we have sought to amend effectively strip performers of any legal rights by allowing employers to be defined as makers, usurping the role of the performers' legal rights.

We also seek to include amendments to the Copyright Act which ensure that payments made by broadcasters for sound recording of live performances are actually received by the performers. At the moment, whether or not Australians realise it, our performers do not get the payments in those circumstances. They often end up in that big kitty bag that is held by record companies. So the power differential between performers and record companies means that at any opportunity record companies are more easily able to negotiate with performers for broadcasting payments to be delivered to them. Through our amendments, we seek to minimise the opportunities for this to happen by providing that the Australian Attorney-General—not the United States Attorney-General—can declare a collecting agency specifically to collect these payments and not leave it to the PPCA, which is controlled by the record companies.

It is shameful that this government and indeed the ALP—who have been missing in action on this question—will not be supporting performers' rights through supporting this amendment. It is vitally important that we understand that this issue has been around for quite some time. We put forward these amendments as serious ones that do need to be taken into account, but again this highlights the fundamental flaws in the free trade agreement. It is a debate we should have been having over the previous eight years, not one that has come about just because the free trade agreement has landed on the shores of Australia. Effectively, we are now being told that, because of the free trade agreement, we will get performers' rights in name only but nothing beyond that. I wonder whether the minister might want to respond to those particular issues.