Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Copyright Amendment Bill 1997
Schedule 4 Copying for the services of the Commonwealth, State and Territory Governments

   

Copyright Act 1968

1  At the beginning of Division 3 of Part VI

Insert:

148   Interpretation

                   In this Division:

copyright material , government and government copy have the same meanings as in Division 2 of Part VII.

2  After section 153D

Insert:

153E   Applications to Tribunal under subsection 183(5)

             (1)  The parties to an application to the Tribunal under subsection 183(5) for the fixing of the terms for the doing of an act comprised in a copyright where the act is done for the services of the Commonwealth or a State are:

                     (a)  the Commonwealth or the State, as the case may be; and

                     (b)  the owner of the copyright.

             (2)  If an application is made to the Tribunal under subsection 183(5), the Tribunal is to consider the application and, after giving the parties to the application an opportunity of presenting their cases, is to make an order fixing the terms for the doing of the act.

153F   Applications to Tribunal to declare collecting society for government copies

             (1)  A company limited by guarantee may apply to the Tribunal for a declaration that the company be a collecting society for the purposes of Division 2 of Part VII.

             (2)  The parties to the application are the applicant and any person made a party by the Tribunal.

             (3)  The Tribunal may make a person a party if:

                     (a)  the person asks to be made a party; and

                     (b)  the Tribunal thinks that the person has a sufficient interest in either or both of the following questions:

                              (i)  whether the applicant should be declared to be a collecting society;

                             (ii)  whether any current declaration of a company as a collecting society should be revoked.

             (4)  After giving each party an opportunity of presenting its case, the Tribunal must:

                     (a)  declare the applicant to be a collecting society for the purposes of Division 2 of Part VII; or

                     (b)  reject the application.

             (5)  A declaration of a company as a collecting society for the purposes of Division 2 of Part VII may be a declaration in relation to:

                     (a)  all government copies; or

                     (b)  a specified class of government copies.

             (6)  The Tribunal may only declare the applicant to be a collecting society if the Tribunal is satisfied:

                     (a)  that the applicant is a company limited by guarantee incorporated under a law in force in a State or Territory relating to companies; and

                     (b)  in the case of an application for a declaration in relation to all government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material to become a member; and

                     (c)  in the case of an application for a declaration in relation to a class of government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material a reproduction of which in accordance with section 183 would be within that class to become a member; and

                     (d)  that the applicant’s rules prohibit the payment of dividends to its members; and

                     (e)  that the applicant’s rules contain such provisions about all of the following matters as are adequate for the protection of its members:

                              (i)  the collection of remuneration payable under section 183A;

                             (ii)  the payment of administrative costs of the collecting society out of remuneration it collects;

                            (iii)  the distribution of remuneration the collecting society collects;

                            (iv)  the collecting society holding on trust remuneration for owners of copyright in copyright material who are not members of the society;

                             (v)  access to the collecting society’s records by its members; and

                      (f)  that the applicant’s rules contain such other provisions as are required by the regulations to be included for the protection of members of the society.

             (7)  A declaration must specify the day on which it takes effect.

             (8)  If the Tribunal makes a declaration under this section, the Secretary to the Tribunal must publish the declaration in the Gazette .

153G   Applications to Tribunal to revoke a declaration of a collecting society

             (1)  Any of the following persons may apply to the Tribunal for the revocation of a declaration under section 153F:

                     (a)  the collecting society;

                     (b)  a member of the collecting society;

                     (c)  a government.

             (2)  The parties to an application are:

                     (a)  the applicant for revocation of the declaration; and

                     (b)  if the collecting society is not the applicant for revocation of the declaration—the collecting society; and

                     (c)  any person made a party by the Tribunal.

             (3)  The Tribunal may make a person a party if:

                     (a)  the person asks to be made a party; and

                     (b)  the Tribunal thinks that the person has a sufficient interest in the question whether the declaration of the collecting society should be revoked.

             (4)  After giving each party an opportunity of presenting its case, the Tribunal must:

                     (a)  revoke the declaration of the collecting society; or

                     (b)  reject the application.

             (5)  The Tribunal may only revoke the declaration of a company as the collecting society if the Tribunal is satisfied that the company:

                     (a)  is not functioning adequately as the collecting society; or

                     (b)  is not acting in accordance with its rules or in the best interests of its members who own copyright in copyright material or who are agents of copyright owners; or

                     (c)  has altered its rules so that they no longer comply with any one or more of paragraphs 153F(6)(b) to (f); or

                     (d)  has contravened section 183D or 183E (dealing with reporting and accounting, and alteration of rules).

             (6)  A revocation must specify the day on which it takes effect.

             (7)  If the Tribunal revokes the declaration of the collecting society, the Secretary to the Tribunal must publish notice of the revocation in the Gazette .

153H   Time limit for deciding applications under section 153F or 153G

             (1)  The Tribunal must make its decision on an application under section 153F or 153G within 6 months after the conclusion of the hearing of the application.

             (2)  The 6 months time limit in subsection (1) does not apply if the Tribunal thinks that the matter cannot be dealt with properly within that period of 6 months, whether because of its complexity or because of other special circumstances.

             (3)  If subsection (2) applies, the Tribunal must tell the applicant before the end of the 6 months period that the matter cannot be dealt with properly within that period.

153J   Amendment and revocation of a declaration on the declaration of another collecting society

             (1)  If:

                     (a)  a declaration (the previous declaration ) is in force under section 153F; and

                     (b)  the Tribunal, under that section, declares another company to be the collecting society for the purposes of Division 2 of Part VII in relation to a class of government copies that includes some of the government copies to which the previous declaration relates;

the Tribunal must amend the previous declaration so as to exclude from the government copies to which it relates all government copies to which the declaration of the company referred to in paragraph (b) relates.

             (2)  An amendment of a declaration under subsection (1) takes effect when the declaration of the company referred to in paragraph (1)(b) takes effect.

             (3)  If:

                     (a)  a declaration (the previous declaration ) is in force under section 153F; and

                     (b)  the Tribunal makes another declaration under that section in relation to:

                              (i)  all government copies; or

                             (ii)  a class of government copies that includes all government copies to which the previous declaration relates;

the Tribunal must revoke the previous declaration.

             (4)  The revocation of a declaration under subsection (3) takes effect when the declaration referred to in paragraph (3)(b) takes effect.

             (5)  The Secretary to the Tribunal must publish in the Gazette notice of an amendment or revocation made under this section.

153K   Applications to Tribunal for method of working out payment for government copies

             (1)  A collecting society or a government may apply to the Tribunal for an order determining the method for working out remuneration payable under subsection 183A(2) for government copies made for the services of the government in a particular period.

             (2)  The parties to an application are the collecting society and the government.

             (3)  After giving each party an opportunity of presenting its case, the Tribunal must make an order determining the method.

Note:          Subsection 183A(3) sets out matters that the method must provide for. Subsection 183A(4) sets out matters that the method may provide for.

             (4)  An order may also specify how and when payments of the amount worked out using the method determined are to be made.

3  After the heading to Part VII

Insert:

Division 1 Crown copyright

4  After section 182A

Insert:

Division 2 Use of copyright material for the Crown

182B   Definitions

             (1)  Subject to subsection (2), in this Division:

collecting society means a company in respect of which a declaration is in force under section 153F.

copyright material means:

                     (a)  a work; or

                     (b)  a published edition of a work; or

                     (c)  a sound recording; or

                     (d)  a cinematograph film; or

                     (e)  a television or sound broadcast; or

                      (f)  a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.

government means the Commonwealth or a State.

Note:          State includes the Australian Capital Territory, the Northern Territory and Norfolk Island: see paragraph 10(3)(n), as modified by the A.C.T. Self-Government (Consequential Provisions) Regulations (Amendment) (Statutory Rules 1989 No. 392).

government copy means a reproduction in a material form of copyright material made under subsection 183(1).

             (2)  A reference in subsection (1) to a work does not include a reference to a literary work that consists of a computer program or a compilation of computer programs.

182C   Relevant collecting society

                   A company is the relevant collecting society in relation to a government copy if there is in force, under Division 3 of Part VI, a declaration of the company as the collecting society for the purposes of this Division in relation to:

                     (a)  all government copies; or

                     (b)  a class of government copies that includes the first-mentioned government copy.

5  At the end of Part VII

Add:

183A   Special arrangements for copying for services of government

             (1)  Subsections 183(4) and (5) do not apply in relation to a government copy (whenever it was made) if a company is the relevant collecting society for the purposes of this Division in relation to the copy and the company has not ceased operating as that collecting society.

             (2)  If subsection 183(5) does not apply to government copies made in a particular period for the services of a government, the government must pay the relevant collecting society in relation to those copies (other than excluded copies) equitable remuneration worked out for that period using a method:

                     (a)  agreed on by the collecting society and the government; or

                     (b)  if there is no agreement—determined by the Tribunal under section 153K.

             (3)  The method of working out equitable remuneration payable to a collecting society in respect of government copies (other than excluded copies) for a period must:

                     (a)  take into account the estimated number of those copies made for the services of the government during the period, being copies in relation to which the society is the relevant collecting society; and

                     (b)  specify the sampling system to be used for estimating the number of copies for the purposes of paragraph (a).

             (4)  The method of working out the equitable remuneration payable may provide for different treatment of different kinds or classes of government copies.

             (5)  Subsections (3) and (4) apply whether the method is agreed on by the collecting society and the government or is determined by the Tribunal.

             (6)  In this section:

excluded copies means government copies in respect of which it appears to the government concerned that it would be contrary to the public interest to disclose information about the making of the copies.

183B   Payment and recovery of equitable remuneration payable for government copies

             (1)  Equitable remuneration payable to a collecting society under subsection 183A(2) must be paid:

                     (a)  in the manner, and at the times, agreed on by the collecting society and the government; or

                     (b)  if the Tribunal has made an order under subsection 153K(3) specifying how and when payments are to be made—in the manner, and at the times, specified in the order.

             (2)  If equitable remuneration is not paid in accordance with the agreement or the Tribunal’s order, the collecting society may recover the remuneration as a debt due to the society in a court of competent jurisdiction.

183C   Powers of collecting society to carry out sampling

             (1)  This section applies if the method of working out equitable remuneration payable under subsection 183A(2) for government copies made for the services of a government has been agreed on by the government and the relevant collecting society or has been determined by the Tribunal.

             (2)  The collecting society may give written notice to the government that the society wishes to carry out sampling in accordance with the method during a specified period at specified premises occupied by the government. The period specified must not start earlier than 7 days after the day on which the notice is given.

             (3)  The government may give the collecting society a written objection, based on reasonable grounds, to the proposal to carry out sampling during the period, or at the premises, specified in the notice. However, if it does so, the notice of objection must propose an alternative period during which, or alternative premises at which, as the case may be, sampling may be carried out.

             (4)  If the government gives the collecting society an objection, sampling may not be carried out during the period, or at the premises, to which the objection relates unless the objection is withdrawn.

             (5)  If the government has not objected, or has withdrawn any objection it made, before or during the specified period, a person authorised in writing by the society may, during that period, enter the premises specified in the notice and carry out sampling in accordance with the method on any ordinary working day for government staff who work in the premises.

             (6)  The government must take reasonable steps to ensure that the person who attends at the premises is given all reasonable and necessary facilities and assistance for carrying out the sampling.

183D   Annual report and accounts of collecting society

             (1)  As soon as practicable after the end of each financial year, a company that was a collecting society during any part of the year must prepare a report of its operations as a collecting society during the year and send a copy of the report to the Attorney-General.

             (2)  A collecting society must keep accounting records correctly recording and explaining the transactions of the society (including any transactions as trustee) and the financial position of the society.

             (3)  Accounting records must be kept in a manner that will enable true and fair accounts of the society to be prepared from time to time and to be conveniently and properly audited.

             (4)  As soon as practicable after the end of each financial year, a company that was a collecting society during any part of the year must:

                     (a)  have its accounts audited by an auditor who is not a member of the society; and

                     (b)  give a copy of the audited accounts and the auditor’s report on the audit to the Attorney-General.

             (5)  The Attorney-General must cause a copy of a document given to the Attorney-General under subsection (1) or paragraph (4)(b) to be laid before each House of the Parliament within 15 sitting days of that House after the Attorney-General received the document.

             (6)  A collecting society must give its members reasonable access to copies of:

                     (a)  all reports and audited accounts prepared by it under this section; and

                     (b)  all auditors’ reports on the audit of the accounts.

             (7)  This section does not affect any obligations of a collecting society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated.

183E   Alteration of rules of collecting society

                   If a collecting society alters its rules, it must give a copy of the altered rules, together with a statement of the effects of, and reasons for, the alteration, to the Attorney-General and the Tribunal within 21 days after the day on which the alteration was made.

6  Application

(1)        If:

                     (a)  a government copy was made before the first declaration of a collecting society in relation to a government copy of the same kind was made under section 153F of the Copyright Act 1968 ; and

                     (b)  apart from this item, the owner of the relevant copyright would have been entitled to the benefit of terms agreed on, or fixed, under subsection 183(5) of that Act; and

                     (c)  any payment due under terms referred to in paragraph (b) has not been made;

section 183A has effect as if:

                     (d)  section 153F of the Copyright Act 1968 and Division 2 of Part VII of that Act had been in force when the copy was made; and

                     (e)  the company the subject of the first declaration under section 153F of that Act in relation to a government copy of the same kind had been the relevant collecting society in relation to the copy when the copy was made; and

                      (f)  the company had not ceased operating as a collecting society when the copy was made.

(2)        Section 183A has effect in accordance with subsection (1) whether or not the company referred to in paragraph (1)(e) was the agent of the owner of the copyright involved.