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Thursday, 16 May 1968


Mr BOWEN (Parramatta) (AttorneyGeneral) - I move:

That the Bill be now read a second time.

Honourable members will recall that in May last year I introduced the Copyright Bill 1967.I said then that I intended that the Bill should be allowed to stand over until the Budget session of the Parliament in order to give interested parties an opportunity to examine it. Some of the provisions of the Bill caused a good deal of controversy and it was not possible to deal with all of the issues in time for it to be debated further last year. The 1967 Bill lapsed when the Parliament was prorogued. The Bill which is now before the House differs from the 1967 measure in a number of respects. I have circulated to honourable members a memorandum which will enable them, by looking at the 1967 Bill, to see the alterations that have been made to that Bill and that are incorporated in the present measure.I will come presently to an explanation of the more important of these changes.

Before explaining the substance of the Bill I should like to say a word or two about the general importance of copyright law. Honourable members will be aware that it is a prime purpose of copyright law to protect creative works so that authors, composers, artists and sculptors may, during the continuance of copyright protection, control the uses to which their works are put and get some return for the exploitation of their works. But it is not only creative works, as that term might commonly be understood, that are protected by copyright law. Any literary, dramatic, musical or artistic work which has some slight degree of originality is protected, no matter how prosaic that work might be. For the purposes of the copyright law, a road map or a collection of classified advertisements in a newspaper receives the same protection in copyright as a great novel. Furthermore, the existing law extends copyright protection to records. A record is protected as if it were a musical work. Copyright also provides the basis for the publishing industries. Without this protection, it would not be likely that large sums would be invested in the production of books and magazines or the publishing of music.

But it is also necessary to have regard to those who use copyright material. The broadcasting and television industry, the record industry and much of the entertainment industry depend on being able to use copyright material on reasonable terms. Especially in the musical field, owners of copyright have so organised, through licensing organisations, that they are in a strong bargaining position. For example, the Australasian Performing Right Association Ltd claims to control the performing right in virtually all copyright music in Australia. It is thus in a position to dictate the terms on which music may be performed in public. Honourable members will therefore appreciate that any alteration in the existing copyright law will affect substantial economic interests which have been built up on the basis of that law. The interests affected will be the interests of both producers and users of material protected by copyright. The present Bill recognises that there are changes in the use of copyright material which have been brought about by changes in technology and the Government has been concerned to see that authors receive due payment for the use of their material. At the same time the Government recognises that existing practices and existing relationships in industries which depend upon copyright material cannot be ignored. la framing this Bill, the Government has had due regard to interests which are often conflicting interests. In many cases, it has not been possible to satisfy completely all parties. Nevertheless, I hope that this Bill will be widely accepted as a reasonable compromise in cases where there are conflicting interests. Earlier this year I circulated to interested parties a memorandum of proposed alterations to the Copyright Bill 1967. This memorandum proposed those alterations which the Government thought to be necessary to meet the representations that had been made to me following the introduction of the 1967 Bill. I am pleased to be able to say that, although the proposed alterations did not satisfy all parties, the proposals have been given a generally favourable reception.

The present copyright law in Australia dates from 1911. It is contained in the British Copyright Act 1911, which was applied in Australia by the Copyright Act 1912. This is, therefore, the first complete revision of copyright law in Australia for 56 years. The British Act of 1911 was replaced in the United Kingdom by the Copyright Act 1956. I do not think I need do more than mention again the work performed by the Copyright Law Review Committee under Sir John Spicer, on whose report this Bill is largely based, and the considerable task of examining that report and the many representations which resulted. This Bill is the result of an exhaustive review and careful assessment of all of the interests affected by copyright law. I need hardly remind honourable members of the substantial changes which have occurred since 1911, when our present copyright law was enacted. Radio, television, the cinema, the modern record industry, the tape recorder,- new methods of printing, photographic methods of copying cheaply and in large quantities, and satellite transmission of radio and television programmes have all made significant changes in the exploitation of copyright material. In revising the copyright law, all of these changes have had to be taken into account.

Generally speaking, the Bill confirms the rights given to authors by the existing law and specifically provides that these cover the methods of dissemination .of copyright material that have developed since 1911, such as broadcasting. In so doing, the Bill confirms in statutory form the decisions of the courts which have, over the years, extended the provisions of the 1911 Act to cover new situations. But the Bill confers a number of new rights, particularly in respect of broadcasts, cinematograph films and printed editions of books.

As I indicated in my second reading speech on the 1967 Bill, the changes proposed by the Bill will enable Australia to become a party to recent international agreements on copyright. I said then that the Bill would enable Australia to accede to the Brussels Revision in 1948 of the Berne Convention for the Protection of Literary and Artistic Works and to the Universal Copyright Convention. The Bill will also give effect in part to the Convention for the Protection of Producers of Phonograms, Broadcasters and Performers, commonly known as the Neighbouring Rights Convention. That Convention requires certain rights to be given to record manufacturers, to broadcasters and to performers of musical and dramatic works. The present Bill will give effect to that Convention in so far as it relates to records and to broadcasts, it being appropriate to deal with these matters in a Copyright Bill. The matter of performers is dealt with separately in the United Kingdom by legislation of a different character. It has not yet proved possible to devote attention to the task of examining what legislation should be enacted in Australia to give effect to those provisions of the Neighbouring Rights Convention relating to performers. I understand, however, that there is as yet no substantial problem caused by the broadcasting or recording of performances of musical and dramatic works in Australia without the prior approval of the performers themselves.

Since the 1967 Bill was introduced, the Berne Convention has been again revised at a conference in Stockholm at which Australia was represented. Those further changes in our copyright law which would be required to give effect to the Stockholm Revision have been incorporated in this Bill. The Government has not yet decided whether Australia will accede to the Stockholm Revision of the Convention. Some of the changes made in the Convention at Stockholm, which do not require legislation in Australia, but which give certain rights to developing countries to grant compulsory licences for the use in defined circumstances of copyright material, will need careful examination by the Government to see what effect they would have on Australian interests.

I turn now to an examination of the main features of the Bill and of the main differences between this Bill and the 1967 Bill. The Bill deals in the first place wilh copyright in literary, dramatic, musical and artistic works, which are the traditional subjects of copyright protection. Generally speaking, this part of the Bill would not make any fundamental changes in the existing law. Secondly, the Bill deals with copyright in sound recordings, cinematograph films, broadcasts and published editions. This part of the Bill is largely new. Thirdly, the Bill establishes a Copyright Tribunal with the function of arbitrating in disputes between copyright owners and users of copyright material.

The provisions relating to copyright in literary, dramatic, musical and artistic works are contained in clauses 3f to 83 of the Bill. Clause 32 of the Bill sets out the circumstances in which a work is protected by copyright. It must be an original work; that is to say, it must not simply be a work which is a replica of another. It it is an unpublished work, the author must have been a qualified person when the work was made. A qualified person is one who is an Australian citizen, an Australian protected person, or ordinarily resident in Australia. In addition, a work will qualify for copyright protection if it is first published in Australia, or if, at the time it is first published, the author is a qualified person. This differs from the existing law in a number of respects. At present, an unpublished work is protected if the author, at the time of making the work, was a British subject or was resident in a part of Her Majesty's dominions to which the 1911 Act extended. But a published work is protected only if it was first published in a part of Her Majesty's dominions to which the 1911 Act extended. Thus the work of a British subject may cease to be protected if it is first published outside the Imperial copyright area. Clause 32 (3.) of the Bill provides that copyright subsists in a building situated in Australia, or in artistic work that is attached to or forms part of such a building. This applies irrespective of the nationality or place of residence of the architect. This is a new provision, required by a change in the Berne Convention at Stockholm.

So far I have spoken only of copyright in relation to works by Australian authors or works first published in Australia or by Australians. It is intended that copyright protection in Australia will be extended, by regulations to be made under the power conferred by clauses 185 to 189 of the Bill, to works made by, or first published in or by, nationals of member countries of the Berne and Universal Copyright Conventions and persons who are resident or ordinarily resident in those countries.

The rights which are conferred upon the owner of the copyright in an original, literary, dramatic, musical or artistic work are set out in clause 31 of the Bill. The owner of the copyright in a literary, dramatic and musical work is given exclusive rights of reproduction, publication, public performance, broadcasting and communication of the work to subscribers to a diffusion service. A diffusion service is one in which transmission is effected by landline and not by broadcasting. Apart from the right of public performance, which is not applicable in the case of an artistic work, the rights I have mentioned are also given in relation to artistic works. The owner of the copyright in a literary or dramatic work also has exclusive rights in respect of translations into other languages, and of the conversion of the work into another form as, for example, the conversion of a novel into a stage play. Generally speaking, the effect of the clause is to spell out rather more fully than does the present law what these rights are. As I have already indicated, the Bill incorporates the effect of judicial decisions on the relevant provisions of the 1911 Act and, in particular, those decisions in which it has been held by the courts that the right of public performance given by the 1911 Act includes the right to authorise the broadcasting of a work.

The duration of copyright in original works will remain, with two exceptions, substantially the same as under the existing law. In general, the term of copyright in an original work will be the life of the author and 50 years thereafter. Where a literary, dramatic or musical work is first published posthumously, copyright will continue to subsist for 50 years after first publication. The same applies to copyright in an engraving. Copyright in a photograph will continue for 50 years after first publication of the photograph.

These provisions involve only two changes in the existing law. In the first place, the term of 50 years is to be computed not, as at present, from the date of the relevant event, whether it be the death of the author or the publication of the work, but from the end of the year in which that event occurred. It is usually much easier to remember or to find out the year in which a particular event occurred than the actual date on which it happened. Secondly, the term of copyright in a photograph which, under the existing law, continues only for 50 years from the making of the original negative, will continue for 50 years from first publication. In other words, there will now be a perpetual copyright in an unpublished photograph.

The Bill generally follows the existing law in providing that the author is the owner of the copyright in a work. There are two exceptions to this rule. The first is that copyright in a photograph, portrait or engraving made under commission from another person vests in the person commissioning. If the photograph, portrait or engraving is commissioned for a particular purpose, however, the author is entitled to restrain its use for any other purpose. The second exception is that copyright in a work made by an employee other than a journalist in the course of his employment vests in his employer. In the case of a journalist, the proprietor of the newspaper or magazine by whom he is employed owns the copyright in his work for the purposes of newspaper publication or of broadcasting. The provisions relating to commissioned works and to works made in the course of employment are subject to any special agreement between the parties.

Clauses 36 to 39 of the Bill specify what acts constitute infringement of copyright in original works. These differ only in minor respects from the existing law. In the matter of infringement by importation, the Bill differs substantially from the 1967 Bill. Under that Bill, a person would have infringed copyright if he imported an article into Australia, otherwise than for his private and domestic use, if, to his knowledge, he would have infringed copyright by making it in Australia. This would have changed the existing law, under which importation is only an infringement if the articles concerned are imported for sale or hire. It was explained to me that it is the practice of many libraries to import books directly from abroad and of broadcasting stations and, in particular, the Australian Broadcasting Commission, to import records of musical works from abroad for the purpose of broadcasting. There seemed to me to be no good reason to disturb these existing practices. Accordingly, with one small modification, the present Bill would substantially continue the existing law.

The Bill provides certain exceptions from the rights given to the copyright owner. It permits what is called fair dealing with copyright works for the purposes of research or private study, criticism or review and news reporting, lt permits librarians to use modern photocopying techniques for legitimate library purposes. Copyright material may be used in the course of classroom instruction. Short extracts from copyright works may be included in anthologies for use in schools. It is not an infringement of copyright to use a radio or television receiver or a record player in the lounge of a guest house or the like. None of these uses of copyright material really affects the interests of the copyright owner.

I come now to the making of records of musical works. Prior to the 1911 Act, a person who made a record of a musical work did not infringe the copyright in that work. The 1911 Act gave, for the first time, the copyright owner the right to authorise the recording of his music. Fears were expressed that this could result in the development of a monopoly in the record industry if one or two companies, by employing the best artists and entering into contracts with the leading composers, gained control of the record market. To avoid this, the 1911 Act provided a statutory licence to record a musical work once the work had been recorded with the consent of the copyright owner. The record industry has developed on the foundation of this statutory licensing system.

The 1967 Bill proposed to continue this system, but with some significant changes. It followed what had been done in England in the 1956 United Kingdom Act and, with one significant exception, what was recommended by the Spicer Committee. The record manufacturers complained that provisions of the 1967 Bill would narrow the scope of the system to the point where it would cease to apply to the greater part of their business. The owners of musical copyright sought an increase in the royalty required to be paid on records made under the compulsory licence, and opposed any change in the scope of the licence.

After full consideration of the arguments that were put by both sides I came to the conclusion that some changes should be made. The most important changes relate to the conditions precedent to the operation of the statutory licence and to control by the copyright owners of the release of records made under the licence. There is to be no change in the royalty payable.

In the 1967 Bill, the statutory licence did not apply until records of a work had, with the consent of the copyright owner, been made in or imported into Australia for the purpose of retail sale. Now it will be sufficient if records of a work have, with the consent of the copyright owner in the country concerned, been made in. or imported into, Australia or a member country of the Berne or Universal Copyright Convention for the purpose of retail sale. The statutory licence will also apply if a record of a work has been made, again with consent, in Australia or a Convention country for the purpose of making records for retail sale.

But a new provision has been introduced, under which the consent of the owner of the copyright in the musical work involved is necessary for the release of records made under the compulsory licence. The right to withhold consent to release will, with some exceptions, operate only for a limited period from the date on which records of the work were first released in Australia or, in the case of records first released overseas, from first release overseas. The exceptions relate to the case of musical works embodied in musical stage shows or musical films. The copyright owner is given an unlimited right to withhold consent to the marketing of records of these works. This would enable the owner of the copyright in a musical comedy work to prevent release on the Australian market of records of that work before the stage show comes to Australia and so prevent the music from becoming stale.

The royalty payable in respect of records made under the compulsory licence remains at 5% of the retail selling price of the record. The Spicer Committee had recommended that the royalty should be increased to 6i%. The royalty payable in the United Kingdom has been fixed at 6i% since 1928 but this royalty is calculated on a different base to the royalty in Australia. The English royalty is calculated on the retail price of the record excluding purchase tax. The Australian royalty is calculated on the retail price of the record including sales tax. The copyright owners have argued that the royalty should be increased, having regard to changes in the value of money, the introduction of longplaying records and pre-recorded tapes, and changes in the marketing of records.

The extent to which these factors justify an increase in the rate of royalty is a matter which, in my opinion, could only be determined after a proper examination of all of the relevant factors by a tribunal competent to take evidence on oath and to have that evidence tested by crossexamination. I have, therefore, come to the conclusion that there should be no increase in the rate of royalty until there has been a full investigation by the proposed Copyright Tribunal. The Bill provides the machinery for that investigation.

While the provision in clause 58 of the Bill for review of the royalty by the Copyright Tribunal is much the same as the equivalent provision in the 1967 Bill, there is one significant change which has been made at the request of the copyright owners. Under the relevant clause in the 1967 Bill it was necessary, before a review of the royalty could be instituted, for a prima facie case to be made out that the existing rate of royalty had ceased to be equitable. This would have required those seeking a review of the royalty to show that there had been some change in circumstances since the new law came into force. What is required to be shown by clause 58 of this Bill in order to institute a review of the royalty is a prima facie case that the statutory royalty is not equitable. Thus it will not be necesary for those seeking a review of the royalty to show any change in circumstances between the date of operation of the new law and the date on which the review of the royalty is sought.

Apart from some re-drafting to take account of procedural difficulties which were found to exist in. the compulsory licensing provisions of the 1967 Bill, two other changes of some substance have been made. Clause 60 of the Bill will enable a record manufacturer to make, under the compulsory licence, a batch of records some of which he does not intend to sell but intends to give away for review or for promotional purposes. He must pay the full royalty on the records which he gives away. The second change is contained in clause 63 of the Bill. This clause deals with the recording of musical works which were published before the date on which the Copyright Act 1911 came into operation. In order to make records of these works under the compulsory licence, it is not necessary, under the existing law, to show that a record of the work had previously been made. The Berne Convention was amended at Stockholm to remove the special provisions which related to these old musical works. The Convention provides that these special provisions should cease to apply in respect of a country two years after the date of its accession to the Stockholm Revision of the Convention. Accordingly, to give effect to that change in the Convention, sub-clause (3.) of clause 63 of the Bill provides that the special exception relating to old musical work ceases two years after the commencement of the new Act.

The Bill gives a statutory right to broadcasting stations to record copyright works or to make films including copyright works for the purpose of broadcasting those works under certain defined conditions. Modern broadcasting practice often requires the prerecording of a programme for subsequent broadcasting. Clause 47 of the Bill gives a statutory right to a broadcasting station to record or to include in a film a copyright work which it is authorised to broadcast and to use that record or film for the purposes of its own broadcasts without payment to the copyright owner. Such a record or film may be used for the purposes of broadcasting the work by any other broadcasting organisation which is authorised to broadcast the work provided that a royalty is paid to the copyright owner in respect of the making of the record or film. The amount of the royalty is to be determined by agreement or, in default of agreement, by the Copyright Tribunal. A record or film which is made in pursuance of these provisions may be retained for 12 months, when it must be destroyed or transferred to the archives of the National Library.

Both the Australian Broadcasting Commission and the commercial broadcasting and television organisations had asked for a more extensive right of making what are known as 'ephemera? records than is given by clause 47 of the Bill. In my opinion, however, the Berne Convention permits only the making of ephemeral records by a broadcaster for the purpose of his own transmissions without any obligation to the copyright owner. But since the Convention also permits the recording of musical works under compulsory licence, on payment of compensation to the copyright owner, it has been thought reasonable to include in the Bill what is in effect a statutory licence for the making of ephemeral records by a broadcasting organisation for use by other broadcasting organisations.

Clause 107 of the Bill permits commercial records of copyright works to be included in an ephemeral record made by a broadcasting organisation subject, to the same conditions as apply in the case of the original work. The relevant clause in the 1967 Bill would have permitted a broadcaster to make . a copy of a single record and to use that copy for broadcasting for 12 months. This was not intended. What was intended to be given was the right to copy commercial records for the purpose of making up programmes. Consequently, clause 107 now provides that the right to include an existing record in an ephemeral record is limited to a right to include that record in association with other matter. The jurisdiction of the Copyright Tribunal has now been extended so that it may arbitrate where the owner of the copyright in a work and a broadcasting organisation wanting to record that work for broadcasting purposes in circumstances where the ephemeral recording provisions do not apply cannot agree on the royalty to be paid.

Clauses 74 to 77 of the Bill deal with the relationship between copyright in artistic works and registered designs. They should be read in conjunction with amendments to be made to the Designs Act by a Designs Bill which I shall be presenting to the House. Apart from some drafting changes to take account of criticisms which have been made of the relevant provisions in the 1956 Act, these clauses follow the scheme of the 1956 Act. Adoption of that scheme was recommended by the Spicer committee. There would be a substantial change in the existing law. At present, an artistic work which is produced for the purpose of being applied as an industrial design, or which is so applied at the time it is made, is not protected under the copyright law. Nevertheless, subsequent use as an industrial design of an artistic work which is not produced for that purpose will not deprive that work of copyright protection. Thus the public may not know whether an artistic work which has been applied as an industrial design may be freely used as such. It is desirable that there should be a reasonable degree of certainty in this respect. There are many circumstances in which an artistic work may find, or may be created especially for, industrial application. For example, a statuette, which is an artistic work within the meaning of that term in the copyright law, may be reproduced in quantity for use as a lamp base. Similarly, the drawing of a Donald Duck or a Mickey Mouse cartoon character may be reproduced as a children's toy. Insofar as an artistic work may be applied as an industrial design it can be, if it qualifies for registration, registered under the Designs Act as a registered design. If it is so registered, then the proprietor of the design obtains a monopoly for a maximum period of 15 years in that design. Protection under the Copyright Act exists, however, for a much longer period.

The Bill adopts the approach that the use of a work as an industrial design should disqualify it from copyright protection in respect of its use as an industrial design after the expiration of 15 years from the time the articles incorporating that design first come on the market. But outside the field of application of an artistic work as an industrial design, copyright in that artistic work will still continue. Thus, if a cartoon character is used to decorate children's plates, so to use it after the expiration of 15 years from the time those plates came on the market will not infringe any rights in respect of the artistic copyright in the drawing of the character, but to reproduce it in a magazine would be an infringement of copyright. I shall explain these provisions more fully when I come to the Designs Bill. I said in my second reading speech on the 1967 Bill that these provisions would be reviewed when the Designs Act is next revised. Although it has not yet been possible to institute this revision, I hope to put this in hand as soon as the work on the introduction of the new copyright law is completed.

I turn now to those provisions of the Bill which provide for copyright to subsist in broadcasts, cinematograh films, sound recordings and published editions. These provisions are to be found in clauses 84 to 113 of the Bill. These clauses involve substantial changes in the existing law and, in respect of the rights given in sound recordings, substantial differences from the provisions of the 1967 Bill. Broadcasts are not protected at all under the existing copyright law. Some protection against the use of broadcast material is given by the Broadcasting and Television Act. Sub-clause (2.) of clause 9 of this Bill specifically preserves the operation of the relevant provisions of that Act. Under the Bill the owner of the copyright in a radio or television broadcast is given the right to control rebroadcasting of that broadcast. In the case of a television broadcast he is given the exclusive right to make a cinematograh film of the broadcast or a copy of such a film. In the case of a sound broadcast, or the sounds accompanying a television broadcast, the rights include the exclusive right to make a record of that broadcast or reproductions of that record. These provisions are contained in clause 87 of the Bill.

A cinematograph film is protected under the existing law in two ways. Inasmuch as an ordinary cinematograph film consists of a series of individual photographs, each frame is protected as an artistic work. But if the arrangement or acting form or the combination of incidents represented in a cinematograph film give the work an original character, the film is protected as a dramatic work. The present Bill establishes a separate protection for cinematograph films. The rights given to the owner of the copyright in a cinematograph film are set out in clause 86 of the Bill. The copyright in a cinematograph film continues until the expiration of 50 years from the end of the calendar year in which the film was first published. For many purposes, ordinary cinematograph film and videotape are interchangeable. Thus, a scene may be recorded by a television camera on videotape and the videotape later copied on to and ordinary cinematograph film. The incidents recorded may be seen either by viewing the videotape on a television screen or by viewing the cinematograph film on a cinema screen. The Bill therefore assimilates videotape to ordinary cinematograph film for the purposes of copyright protection and- -the - term cinematograph - film'appearing in the Bill is defined as including videotape.

Honourable members will1 be aware that the provisions of the 1967 Bill relating to copyright in sound recordings were, in some respects, the subject of much controversy. The provisions in the present Bill represent an attempt to reach a reasonable compromise between the conflicting claims of record manufacturers and of broadcasting organisations While neither party would, 1 think, regard the present provisions as entirely satisfactory from its point of view, my understanding is that each is prepared to accept these provisions as a workable corncompromise. In the circumstances I do not therefore think it necessary to traverse the whole of the controversy that centred on the provisions of the 1967 Bill relating to broadcasting rights in records. Under the present law, a record is protected as if it were a musical work. The present Bill creates a separate species of copyright in sound recordings. I should like to make it clear that the term 'sound recording' as used in the Bill does not denote the physical object, whether it be disc or tape, but the aggregate of the sounds which are embodied in that physical object. The importance of this distinction is that copyright depends on the making of the sound recording, that is, the making of the original master or tape. The making of records from that original has no significance in determining whether copyright exists.

I- should also explain that the complete scheme of protection of sound recordings which is intended does not appear from the provisions of the Bill. Some of it appears in the Bill; other parts of the scheme will be contained in regulations to be made under the Bill. It is intended that there shall be copyright in all sound recordings made in Australia or in a member country of the Berne Convention or the Universal Copyright Convention, or made by a national of, a resident in, or a company incorporated in Australia or a Convention country. There will also be copyright in a sound recording first published in Australia or in a Convention country. For this purpose 'first published' has the extended meaning given to it by clause 29.(5.) of the Bill; that is, a work is regarded as being first published in- one-country notwithstanding that it- was~ previously published not more than 30 days before in another country.

Generally speaking, copyright in a sound recording comprises the rights set out in clause 85 of the Bill. These are the right to authorise the making of records embodying the recording, the right to cause the recording to be heard in public and the right to broadcast the recording. But if a sound recording is protected by virtue only of the fact that it has been first published in Australia or in a Convention country, the copyright in that recording is not infringed by causing it to be heard in public or by broadcasting it. Furthermore, the broadcasting right in a sound recording made in a country which does not itself give a broadcasting right in sound recordings will cease to exist in Australia at the expiration of a period to be prescribed from the date when the recording was first published overseas or, if the recording is first published in Australia, from the date of its publication in Australia. The effect of this provision will be that a sound recording first made in a country such as the United States of America, which does not give a broadcasting right in sound recordings, may be freely broadcast after records have been released in Australia or after the expiration of a limited period from the time those records are released overseas. The particular period has yet to be worked out; it is contemplated that it will be of the order of 6 to 8 weeks. This will be sufficient. I believe, for a record company to decide whether it wishes to put a particular record on the market in Australia. This limited period will protect the record manufacturer and the owner of the copyright in the musical work involved from any overexposure of the record to the public by excessive broadcasting of the work before it is on the market in Australia.

The scheme will also provide that, in the case of a sound recording in which the broadcasting right continues, permission from the owner of the right to broadcast the recording will not be necessary after records embodying the recording have been released in Australia, or after the expiration of the prescribed period from the release of records overseas, whichever is the earlier. Nevertheless, a royalty must be paid by the broadcaster to the owner of the copyright in the sound recording. The royalty will be such as is determined by agreement or, in the absence of agreement, by the Copyright Tribunal. In the case of a commercial radio station, the Tribunal may not fix an amount payable in respect of the broadcasting of records by that station which exceeds 1% of the gross annual revenue of that station. In the case of the broadcasting of records by the Australian Broadcasting Commission by means of its radio broadcasts, the Tribunal may not fix an annual royalty which exceeds one-half cent per head of population.

These limits have been set to allay fears expressed by both the commercial broadcasting stations and the Austraiian Broadcasting Commission that the payment of royalties for the broadcasting of records could impose a substantial financial burden on them. The limits have been fixed in the light of the special circumstances now existing in Australia in relation to the broadcasting of records and are not intended to imply that any particular royalty or rate of royalty is appropriate for the broadcasting of musical copyright .works.

Clause 153 of the Bill provides a procedure for the revision of these maximum royalty limits. No review of the maximum royalty can be instituted until the new Act has been in operation for 5 years. If a prima facie case is made out to the Attorney-General that, by reason of a change in circumstances, the maximum royalty should be varied, he may request the Copyright Tribunal to hold an inquiry and to report to him. Following the report of the Tribunal, the maximum royalty may be varied by regulation.

The Bill establishes a completely new category of protection for published editions. Modern printing processes have made it easy for a printer to copy, by photographic means, a published edition of a work. A publisher who goes to trouble and expense to produce an edition of a work which is itself out of copyright has no protection under the existing law against a printer who photographically reproduces his edition. What is proposed in clause 88 of the Bill is to give a publisher the exclusive right to make, by means including a photographic process, a reproduction of a published edition of a literary, dramatic, musical or artistic work.

I come now to those provisions of the Bill which establish the Copyright Tribunal and define its functions. Briefly stated, the main functions of the Tribunal will be to arbitrate in disputes between owners of copyright and persons who wish to make public performances and broadcasts of copyright works. But, compared with the 1967 Bill, the jurisdiction of the Tribunal is now extended to arbitrating in disputes concerning the royalty to be paid in respect of the making of records or films of a work for the purpose of broadcasting it and concerning the royalty to be paid to the owner of the copyright in a sound recording for the broadcasting of that recording or for causing it to be heard in public. As I have already indicated, the Tribunal will also have the functions of conducting public inquiries into the statutory royalty payable in respect of records made under the compulsory licence and the maximum royalty payable by commercial broadcasting stations and by the Australian Broadcasting Commission in respect of the broadcasting of sound recordings.

Some changes have been made in the provisions relating to the Tribunal other than those I have already mentioned. The Bill now provides that the Tribunal shall be constituted by not less than two members when any party to an application before the

Tribunal requests that it should be so constituted. Under the 1967 Bill, the Tribunal was required to be constituted by two or more members only when all parties to an application so requested.

There have also been some changes in the provisions entitling copyright owners to sue for amounts payable under orders of the Tribunal. Broadly speaking, the effect of these changes is to put the copyright owner in the same position as if the user of copyright material covered by an order of the Tribunal were under a contractual liability to pay the amounts ordered to be paid by the Tribunal.

As 1 indicated in my second reading speech on the 1967 Bill, all parties have welcomed the proposed establishment of the Copyright Tribunal. It is intended that the Tribunal will have a sufficient status to ensure it the confidence of all parties. The qualifications required for appointment as a member of the Tribunal are substantially the same as those_required for appointment as a Judge" of the High Court or of the Commonwealth Industrial Court.

The position of the Crown is more clearly defined under the Bil1! than under the present law. The Crown will continue to have copyright in respect of works produced or published by it. The Bill puts beyond doubt that the Crown is bound by the copyright law. Provision is made, however, for the use of copyright material for the services of the Commonwealth or the States upon payment of compensation to the owner of the copyright.

The provisions of the Bill relating to what is commonly known as the 'droit moral' differ somewhat from those contained in the 1967 Bill. The change is intended to give effect to a change in the Berne Convention made at Stockholm last year. Under the 1967 Bill, the duty imposed on persons not to attribute to a person the work of another or to attribute an altered work as being the unaltered work of an author existed only during the lifetime of the author. The Convention was amended at Stockholm to require that these rights, or some of them, should extend during the term of the copyright in the work. This change has been incorporated in the present Bill. The Stockholm Revision also required member countries to recognise the appointment by a member country of a person to represent, or to act as, the owner of the copyright in a work of folklore. A provision to give effect to this obligation is contained in subclause (4.) of clause 185 of the Bill.

Except for some minor alterations on drafting matters, the transitional provisions in the Bill do not differ from the transitional provisions contained in the 1967 Bill. I think that all I need say about the transitional provisions is that they are based on the proposition that, unless specific provision is otherwise made, existing works are brought under the provisions of the proposed law. This is what was done in the 1911 Act and in the 1956 United Kingdom Act.

This Bill represents a significant milestone in Australian copyright law. It is the first major change in our copyright law that has been made for a long time. It contains a number of distinctive features dealing with copyright problems which are peculiarly Australian. I have already indicated my hope that the Government has, in this Bill, achieved a reasonably satisfactory compromise in areas where there are conflicting interests. If and when the Bill becomes law, the Government will carefully watch the effect of the Bill on the operations of those who are affected by it, so that if it appears that further changes need to be made to the law, those changes can be made.

I referred at the beginning of this speech to the changes in technology which have occurred since the 1911 Act came into operation. Significant changes in technology which affect the operation of the copyright law are still continuing. At the Stockholm Conference last year, Mr Kawminstein the Registrar of Copyrights in the United States of America, forecast that there might need to be another meeting of the member countries of the Berne Convention within the next 10 years to take account of the effect of copyright law on the widespread introduction of computers for data processing and information storage and retrieval. It is as yet too early to see in what ways changes will need to be made in the copyright law to accommodate these new developments or what other developments in communications will require other changes to be made. These are matters for the future. I commend the Bill to the House.

Debate (on motion by Mr Connor) adjourned.







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