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Thursday, 2 September 1999
Page: 9748


Mr WILLIAMS (Attorney-General) (9:40 AM) —I move:

That the bill be now read a second time.

The Copyright Amendment (Digital Agenda) Bill 1999 implements the most comprehensive package of reforms to Australian copyright law since the enactment of the Copyright Act 1968. The reforms will update Australia's copyright standards to meet the challenges posed by rapid developments in communications technology, in particular the huge expansion of the Internet. This extraordinary pace of development threatens the delicate balance which has existed between the rights of copyright owners and the rights of copyright users. The central aim of the bill, therefore, is to ensure that copyright law continues to promote creative endeavour and, at the same time, allows reasonable access to copyright material in the digital environment.

This bill and the recently passed Copyright Amendment (Computer Programs) Act 1999 are integral components in the government's strategy to develop a legal framework that encourages online activity and promotes the growth of the information economy. The information economy is developing from the revolutionary new opportunities for the use, storage and transmission of information being made possible by digital technology.

Importantly, the reforms in the bill are consistent with new international standards to improve copyright protection in the online environment adopted in the 1996 World Intellectual Property Organisation (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty. Australia was an active participant in the Diplomatic Conference in December 1996 that agreed to the WIPO treaties, and the enactment of this bill will be a major step towards aligning our copyright laws with the obligations imposed by the treaties.

The bill has been extensively revised since it was released for public comment as an exposure draft in February this year. The policy in the bill reflects a wide ranging and valuable consultation process with affected interests in relation to the exposure draft. The reforms in this bill are based largely on the proposals in the discussion paper entitled Copyright Reform and the Digital Agenda, which I released in conjunction with the Minister for Communications, Information Technology and the Arts, Senator Alston, in July 1997. That discussion paper was also the subject of extensive consultation. The government has closely considered the outcomes of both consultation processes in formulating the Copyright Amendment (Digital Agenda) Bill 1999, which I am introducing today.

Turning then to the major reforms proposed in the bill, the centrepiece is a new broadly based technology-neutral right of communication to the public. The new right will subsist as an exclusive right in literary, dramatic, musical and artistic works, and in sound recordings, films and broadcasts.

The new right of communication to the public will replace and extend the existing technology-specific broadcasting right which applies only to `wireless' broadcasts. It will also replace the limited cable diffusion right. The right of communication will encompass the making available of copyright material online, so as to provide protection to material made available through on-demand, interactive transmissions. An example of the exercise of this right would be the uploading of copyright material onto a server which was connected to the Internet.

The new right will substantially improve protection for many important industries that publish or distribute copyright material on the Internet and will also protect copyright material included in cable pay TV broadcasts. Being a technology-neutral right, it will also mean that the development of new technologies such as `Internet broadcasting' will not require repeated technology-specific changes to the Copyright Act.

To complement the introduction of the new right of communication to the public, the bill will introduce an important package of exceptions to that right. As far as possible, the proposed exceptions replicate the balance that has been struck in the print environment between the rights of owners of copyright and the rights of users. The extension of this balance into the digital environment was one of the fundamental principles underlying the 1996 WIPO treaties.

The existing exceptions for fair dealing will apply to the new right of communication to the public. The fair dealing exceptions permit the use of copyright material for purposes including research or study, criticism or review, and reporting news.

The new legislation also extends the existing exceptions for libraries and archives to the reproduction and communication of copyright material in electronic form. The library and archives provisions have been carefully reviewed to ensure that an appropriate balance is achieved between the rights of copyright owners and users. The definition of `archives' has been clarified to include museums and galleries which satisfy certain requirements currently specified in the act. This will allow such bodies to take advantage of the exceptions applying to archives. The extended exceptions in the bill will enable libraries and archives to undertake a vital role in providing reasonable access to copyright material in electronic form, whilst at the same time protecting new commercial markets for such material online.

The reforms also extend the existing statutory licences in the Copyright Act for copying by educational institutions to the reproduction and communication of copyright material in electronic form. The new statutory scheme for the electronic use of copyright material by such institutions has been drafted in broad terms to enable it to adapt to future technological developments. The key to the new scheme is flexibility based on agreement between educational institutions, such as universities and schools, and the relevant collecting societies. I strongly urge, in the interests of both copyright owners and users, that the parties work together to reach agreement on issues such as process and the rate of equitable remuneration under the new scheme. However, the bill provides that, where agreement is not possible, the Copyright Tribunal has new jurisdiction to determine these matters.

The bill establishes a similar statutory licence for the electronic use of copyright material by institutions assisting persons with print and intellectual disabilities.

One of the government's central aims in introducing this legislation has been to ensure that the technical processes which form the basis of the operation of new technologies, such as the Internet, are not jeopardised. With this in mind, the new legislation includes exceptions for temporary copies made in the course of the technical processes of making or receiving a communication. Many temporary or incidental copies of copyright material are made in the course of making available and electronically transmitting copyright material on communication networks, including the Internet. The exception for temporary copies is intended to include the browsing of copyright material online.

The bill introduces three new enforcement measures in response to the problems posed for copyright owners by new technologies. The first is the provision of criminal sanctions and civil remedies against persons who manufacture, deal in, import, distribute or make available online devices, or provide services, for the circumvention of technological protection measures designed to inhibit the infringement of copyright. Examples of such measures include password protection or computer program locks. The new enforcement measures are subject to important exemptions which will allow a person to undertake the proscribed activities for specific `permitted purposes'. These exemptions will facilitate the operation of specific exceptions to the rights of copyright owners and are vital for ensuring reasonable access to copyright material in electronic form. The `permitted purposes' relate to the operation of the exceptions for libraries and archives, educational institutions and government users. They also relate to the exceptions for the decompilation of computer software for the purposes of interoperability, error correction and security testing. A further exception to the enforcement measure provisions exists in relation to activities carried out for the purposes of national security and law enforcement.

The second new enforcement regime is the provision of criminal sanctions and civil remedies against the intentional tampering or removal of electronic rights management information, or RMI. RMI typically includes details about the copyright owner and the terms and conditions on which the use of the material is or will be permitted. It is intended to include, for example, `digital watermarks' which are attached to or embodied in copyright material in electronic form. Certain activities in relation to copyright material from which the attached RMI has been removed or altered have also been proscribed.

The use of technological protection measures and RMI by copyright owners is likely to increase in the near future as systems for the online trading of copyright material are adopted. The government wants to ensure that such systems are protected by the law. The two enforcement schemes described will provide copyright owners and licensees with a powerful weapon against the piracy of copyright material online. The schemes will allow copyright owners to confidently establish new commercial markets for copyright material in the knowledge that this legislation will offer them the tools to protect that material.

The third enforcement regime will provide criminal sanctions and civil remedies against persons who manufacture, deal in, import, distribute, or make available online, devices for the unauthorised reception of encoded subscription broadcasts. Such devices include decoders which allow the unauthorised reception of pay TV signals. These provisions will enable subscription broadcasters to control the reception of their encoded broadcasts.

The amendments in the bill also respond to the concerns of carriers and carriage service providers, such as Internet service providers, about the uncertainty of the circumstances in which they could be liable for copyright infringements by their customers. The provisions in the bill limit and clarify the liability of carriers and Internet service providers in relation to both direct and authorisation liability. The amendments also overcome the 1997 High Court decision of APRA v. Telstra in which Telstra, as a carrier, was held to be liable for the playing of music-on-hold by its subscribers to their clients, even though Telstra exercised no control in determining the content of the music played.

Typically, the person responsible for determining the content of copyright material online would be a web site proprietor, not a carrier or Internet service provider. Under the amendments, therefore, carriers and Internet service providers will not be directly liable for communicating material to the public if they are not responsible for determining the content of the material. The reforms provide that a carrier or Internet service provider will not be taken to have authorised an infringement of copyright merely through the provision of facilities on which the infringement occurs. Further, the bill provides an inclusive list of factors to assist in determining whether the authorisation of an infringement has occurred.

Finally, the reforms provide a statutory licence scheme for the payment of equitable remuneration to underlying rights holders whose works are used in retransmitted broadcasts. Currently, retransmitters, such as cable pay TV operators, are able to retransmit free-to-air broadcasts without having to pay remuneration to the owner of the copyright in the broadcast or the owners of copyright in the underlying works contained in the broadcast, such as any music, written material or film. The Copyright Amendment (Digital Agenda) Bill will address this situation. The owners of copyright in a broadcast will be able to take advantage of the new right of communication to the public, which will allow them to control the retransmission of their broadcasts irrespective of the means of delivery of the service.

In relation to the underlying rights holders, the bill provides a statutory licence scheme for such retransmissions. One or more collecting societies, to be approved by me, will collect and distribute payments under the scheme. In default of an agreement between the collecting society and the retransmitter, the rate of equitable remuneration will be determined by the Copyright Tribunal.

In this regard, the scheme provided by the bill is consistent with the related amendments to the Broadcasting Services Act 1992 proposed in the Broadcasting Services Amendment Bill (No. 1) 1999 . That bill is currently before the House. Those amendments will require retransmitters, subject to certain exceptions, to seek the consent of the owners of the copyright in the broadcast signal before retransmitting the broadcast. The enforcement provisions in the Broadcasting Services Amendment Bill (No. 1) 1999 are intended to operate on an interim basis until the amendments contained in this bill commence.

These are the major reforms proposed in the bill. It is intended that the bill commence six months after it receives royal assent. This period will allow affected parties to renegotiate, where appropriate, current arrangements in light of the comprehensive amendments provided by the bill.

The amendments provided by this bill are at the cutting edge of online copyright reform and clearly place Australia among the leaders in international developments in this area. As a result, in certain areas of the bill we are entering uncharted waters. New technologies are changing rapidly and we wish to ensure that an appropriate balance is maintained between the rights of copyright owners and the rights of copyright users under the Copyright Act. I therefore propose that the operation of the legislation, particularly the extended statutory licence scheme for educational institutions and the new enforcement measure provisions, should be reviewed within three years of the commencement of the legislation. This bill will update Australian copyright law for the 21st century and its passage will be a key milestone in the successful development of our information economy. I present the explanatory memorandum to the bill.

Debate (on motion by Mr Martyn Evans) adjourned.