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Wednesday, 12 April 1989
Page: 1468


Senator MACKLIN(6.58) —When I was dealing with this matter before lunch I had got up to clauses 9 and 10 of the Copyright Amendment Bill with regard to the relationship between the artistic and industrial design problems. I indicated at that point that we previously had some intention, in terms of our ongoing discussions, to look at what might be able to be done with those. At the end of the day, we decided not to push ahead in that area, for a number of reasons that I will go into in the committee stage.

I foreshadow the following second reading amendment in respect of the Copyright Amendment Bill:

At end of motion, add ``, but the Senate is of the opinion that, as a matter of urgency, the Attorney-General's Department should examine and report upon:

(a) the implications for industrial designs of the provisions of the Copyright Amendment Bill 1988;

(b) the desirability of protection for industrial designs and the form such protection should take under either the Designs Act or the Patents Act;

(c) the adequacy and appropriateness of the present design registration system and the need for changes under that system to complement changes made to the copyright law; and

(d) the need for, and form of, any transitional provisions in the designs system following changes to copyright law which affect industrial designs''.

I now turn to another topic-that is, performers' protection. Performers have been granted rights over the recording of live performances, either directly or off-air, and over certain uses of such recordings made without their consent. Before now, with one limited exception, performers have had no rights over recordings to which they have consented. Performances are defined as live performances given in Australia by one or more `qualified persons'-meaning Australian citizens and residents. These include dramatic works, musical works, literary works given by way of reading, recitation or delivery, circus or variety acts, and dances. Reading the news and performing a sporting activity are included among the exemptions. I am not quite sure whether unsporting activity is able to be covered.

Unauthorised uses give rise to a claim by the performer, who can bring an action in relation to them. The performer's consent is not required to make an exempt recording, although the recording ceases to be exempt if it is used for purposes other than those which are defined. There is also an ephemeral reproduction exemption in favour of broadcasters, whereby a recording or copy may be made if it is solely for the purpose of making a broadcast where the broadcast itself is authorised by the performer. Copies must be destroyed within 12 months.

These provisions reflect very clearly the recommendations of the majority of the Copyright Law Review Committee in its 1987 report and will certainly enable Australia to meet the minimum requirements of the Rome Convention for the protection of Performers, Producers of Phonograms and Broadcasting organisations. The Attorney-General (Mr Lionel Bowen) has stated that it is the Government's intention to take steps towards accession to the Rome Convention in the near future. Various concerns have been raised with regard to this clause, probably the most significant of which is the retrospective effect of the clause. It goes back 20 years. The Government, by way of an amendment that it has circulated, will remove that effect.

Article 15 (b) of the Rome convention refers to `current events' rather than to the narrow term `news'. The Government argues that the change will create other inconsistencies in the legislation. Its backstop is that it is unnecessary because there is no evidence that `news' would be interpreted narrowly. I doubt very much whether there is an accepted definition that could be interpreted so narrowly, particularly because, in the industry itself, there is a very well-defined context for `news' and an equally well-defined context for `current affairs'. I indicate that we will support the Opposition's amendment in this regard.

The ephemeral recordings issue is interesting. I will raise some questions about it during the committee stage. There could be certain problems with regard to exemptions for public events. I hope the Minister for Justice (Senator Tate) will be able to respond to my comments at the end of the second reading debate. I refer, for example, to application of authorisation requirements to parades or events which require audience participation-events such as the Gay Mardi Gras or, to use a more mainstream event, Carols by Candlelight. In any event, one can imagine that a very broad range of activities may be covered by this aspect. Many of the performances during, for example, Carols by Candlelight, if not during the other example that I gave, are often by notable artists. I think that this aspect should not be put aside. We should be clear about what is covered and how the broadcasting legislation is expected to deal with it.

I turn to the area of educational copying-one which is particularly difficult to deal with. Copying will be permitted provided that the institutions comply with a number of requirements, including payment of equitable remuneration to copyright owners. Alternatives are available as to how this is to be assessed. The provisions largely reflect the recommendations of the former Senate Standing Committee on Education and the Arts, which were made about three years ago. There has been a significant amount of lobbying on this matter. In particular, the Australian Vice-Chancellors Committee has raised a number of concerns. It would like to see the provisions extended to cover radio programs-which the Bill permits only by domestic users-and the copying of published audiovisual materials other than off-air. The off-air ones, of course, are catered for. It is also concerned about the need for fair dealing provisions in relation to audiovisual material, copying by libraries for users and for other libraries and copying for preservation.

The Opposition will move a number of amendments in this regard. Having regard to the spirit in which Senator Hill made his comments it may be better not to deliberate on this matter at this point, but I would certainly be interested in having discussions.

The external students problem is a difficult one. It probably ought to be resolved by the position adopted in the legislation rather than by the Australian Vice-Chancellors Committee's position. Essentially, the Australian Vice-Chancellors Committee has raised the problem that external students are disadvantaged by way of distance in terms of getting hold of materials. I, for one, have always fought strong and hard on their behalf. However, they must be compensated for the disadvantage that they suffer. I think that can be accepted. We are interested in who is to compensate them. It does not seem to me to be fair to say that they should be compensated by the author. The author is in the business of trying to earn a living. Our poor writers have a bad enough time as it is, without their having to compensate external students. Many of them have great difficulty in compensating themselves, just in order to feed themselves.

I think the community has a reponsibility for external students and it ought to exercise that responsibility by way of government funding. In other words, the onus would have to lie with the Government to fund the institutions. The alternative argument, of course, relates to the fair dealings question. When we debate that aspect I wish to see whether it is possible to cover it within the scope of the legislation. There may need to be an amendment to the clause. I will seek to question Senator Hill about whether a `fair dealing' by external students may allow them to appoint a librarian to undertake a copy on their behalf. I think this is another avenue to pursue.

The legislation as it currently stands was the result of some fairly tortuous and protracted negotiations between a number of parties. It is useful that we have got rid of the extremely cumbersome reporting mechanisms that are in the current Act and which will not be contained in the new Act. The external students problem still needs to be addressed. I will be interested to hear how the Government views the problem of disadvantage faced by external students vis-a-vis internal students, and how it intends to deal with that matter before I make a final deliberation on that part of the legislation and the removal of the exemption clause.

The next aspect to which I refer relates to media monitors. The people who have been monitoring the electronic media have recognised that they have been operating in a no-man's land. No-one is quite certain whether he is permitted to do what he is doing. Then again, no-one is quite certain that he is not permitted to do it, either. It is an area which, one has to admit, is legitimate. I admit its legitimacy, particularly as the clipping services with regard to newspapers are accepted. Citizens have a right to know what has been said about them by way of radio or television broadcasts. If they were not listening to or watching the particular program they still have that right. This could be dealt with in a number of ways. For example, we could require an individual radio or television station to provide any member of the public who comes through the door with the ability to peruse the programs. That would be a massively expensive mechanism.

There is, in terms of the media monitors, a very easy and simple way of handling this problem. Media monitors already cover radio and television stations for clients. We propose to move an amendment in regard to this to enable that particular area to be clearly dealt with in such a way that the media monitors are able to provide to an individual a copy of the particular part of the tape or topic that that person is dealing with.

I will give a couple of examples to honourable senators who may not be familiar with the services that are currently provided. One example involves a teachers union in Queensland which is seeking to cover an interesting debate over class sizes. That is legitimate. No way in the world could the teachers union cover that. But since teachers invariably are included in the debates-they were the ones who were leading it and trying to get a reduction in class sizes-they feel the need to be able to respond to comments made by Ministers or other people on talk-back programs. They are attempting to engage in a debate in the society. This material has been broadcast to all and sundry. I find it very difficult to understand why a commercial operation cannot exist so that people can pick that up.

We should not operate on a wait and see mechanism, which I understand is what the Government is suggesting. That seems to me to be a silly exercise now that we are here, because our proposed amendments include a simple mechanism to deal with this matter. It can be reviewed at a later stage, but it should be put on a firm footing now. Some of the opposition to this comes from people who have made statements on radio or television which they do not want to fall into the hands of other people, having libelled or defamed them. That is an area which the two companies that currently operate do not wish to deal with. Very sensibly they do not want to draw on the wrath of the law. They just want to go about a legitimate business exercise, hence they try to stay away from defamation cases. I still believe that if those statements had been made on radio or television, it is the same as if they were printed in the newspaper. One has a legal right to take action if one feels one is defamed. I do not think this right should be obstructed by it being so difficult to get hold of the tape. On a number of occasions I have heard of, the tape has inadvertently been destroyed. I do not think that is a reasonable exercise for public broadcasters. If they are willing to broadcast material, they should be willing to re-broadcast it through that very simple mechanism.

With regard to the blank tape levy-and I understand all honourable senators managed to get themselves a tape today as a result of some lobbying on this matter-under the present law, home taping of published records and cassettes, either directly or off-air, is an infringement of copyright. That infringement is completely unenforceable. There is no way in the world that anybody in their right mind would try to enforce this law because the cost would be astronomical. Under the new proposals, copyright owners-that is composers, authors, publishers and record companies-will be compensated for this use by the payment of a royalty on blank tapes. This was a lateral thinking way of dealing with the problem. Unfortunately, we are still only dealing with radio cassettes and not other tapes. Considering the penetration of videos in the Australian community, which is the highest in the world-in fact, most homes would not do very much audio cassette taping, but almost every home would be recording television programs-it is interesting why we are going down one avenue and not down the other. Perhaps the Government can explain this. Perhaps we have not got around to admitting the level of penetration of video machines in this community. I would like to know why we are not dealing with that matter.

I also laud the Government for the exemptions it has made, for example, for schools and institutes for the blind, and so on. At long last the people who are drafting these pieces of legislation are taking notice of the interminable debates that we have in this place, that when legislation is drawn up somebody should always look over it to see whether these provisions can apply across the board to all Australians, particularly those Australians who suffer some disadvantage.


The ACTING DEPUTY PRESIDENT (Senator Bjelke-Petersen) —Order! The honourable senator's time has expired.