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Tuesday, 30 November 2004
Page: 1


Senator ELLISON (Minister for Justice and Customs) (12:32 PM) —I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted

The speech read as follows—

Copyright Legislation Amendment Bill 2004

This Bill makes minor and technical amendments to the Copyright Act 1968 and the US Free Trade Agreement Implementation Act 2004 (`US FTA Implementation Act') to improve Australia's implementation of its copyright obligations under the Australia-United States Free Trade Agreement (`the Agreement').

It is worth recalling that the copyright provisions in the US FTA Implementation Act were very extensive and covered a number of important areas of reform.

For the first time, performers were given economic and moral rights in sound recordings.

A number of criminal offences were broadened to target copyright infringements undertaken for commercial advantage or financial gain and significant infringements on a commercial scale.

New provisions were introduced in relation to the unauthorised receipt and use or distribution of encoded broadcasts.

The term of protection for copyright material was extended by 20 years.

A new scheme was introduced to limit remedies available against Carriage Service Providers who help copyright owners combat online piracy.

Protection against a wider range of unauthorised reproductions was introduced.

And, protection for electronic rights management information was also extended.

These important reforms reinforced Australia's reputation as a country which responds to the challenges of the digital age with international best practice copyright laws.

However, there are some areas where the copyright amendments could be made clearer.

This clarity is important to both international and domestic stakeholders that need certainty about the operation of Australia's copyright laws when they are trading in Australia.

Over recent months there has been a series of fruitful discussions between the Government, domestic stakeholders and the US Government about the operation of certain amendments made to Australia's copyright laws in the US FTA Implementation Act.

I want to emphasise that the Government is very clear that it has implemented all its obligations under the Agreement.

And I also want to make it clear that the Agreement has not been changed.

However, I do see merit in making some minor and technical amendments to improve the operation and practical effect of the new copyright provisions.

Passage of the Bill will provide reassurance to the US Government and our own industry stakeholders that our copyright obligations are fully met and the provisions are unambiguous.

The amendments are largely of a technical nature.

First, Australia's commitment to criminalise copyright infringement by businesses, especially in relation to software, will be confirmed as a result of these amendments.

Let me reassure everyone that the Government is committed to targeting infringing activity where it occurs for a commercial purpose within a business.

Amendments in the Bill make it clear that this activity often referred to as `business end user piracy' is part of the criminal offence regime in the Copyright Act.

Further technical amendments will have the effect of widening the scope of some criminal offences for commercial piracy that do not occur in a trade context.

This rectifies the unintended consequence of amendments in the implementing legislation that had the effect of narrowing such offences.

Whether Australia's laws effectively criminalise commercial activity involving the use of a Pay TV signal decoded without authority has also been considered.

The Bill addresses a possible gap by the inclusion of an amendment to make it an offence to use a Pay TV signal for commercial purposes without the authority of the broadcaster, where the signal has been decoded by someone else.

This is an important measure to ensure that a person who derives a commercial advantage or profit by using an unauthorised Pay TV signal does not escape criminal liability.

The Bill also clarifies amendments made in the enabling legislation to the reproduction right and the scope of the exception to make incidental copies when legally using copyright material.

Further clarification is made to provisions affecting Carriage Service Providers (CSPs).

The amendments make it clear that knowledge of infringing activities by a CSP where the CSP fails to expeditiously remove or disable access to the infringing material disentitles the CSP from taking advantage of the `safe harbour' scheme which limits the remedies available against the CSP.

As is currently the case, CSPs will not be required to actively monitor their systems or networks for such material.

The Bill also amends the US FTA Implementation Act to place a time limit on the application of the transitional provisions relating to the extension of the term of copyright protection.

The Bill clarifies that the type of costs that may be recovered from a copyright owner are limited, and do not include expected profits.

These changes provide certainty to both copyright owners and users about how the transitional compensation scheme is intended to operate.

The Government has consulted domestic stakeholders on the draft Bill and has outlined the amendments to the US Government.

This consultation process involved a positive exchange of views.

The Government believes that these amendments in the Bill will clarify the practical effect of the copyright amendments made in the US FTA Implementation Act and continue the ongoing improvement of Australia's copyright laws.

I commend the Bill.

Ordered that further consideration of this bill be adjourned to the next day of sitting which is more than 14 days after today, in accordance with standing order 111(6).