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Jurisdiction and Procedures of the Copyright Tribunal - Terms of Reference

The Copyright Act 1968 (the Copyright Act) confers a number of rights on copyright owners to encourage the creation of copyright material, and provides exceptions to those rights to maintain the public benefit in access to that material. The Act is silent as to whether private agreements can displace provisions of the Copyright Act which provide for reasonable access to copyright material (with the exception of s.47H which provides that an agreement which excludes or limits, or has the effect of excluding or limiting, the operation of sections providing for the reproduction of computer programs for decompilation, security testing and error correction has no effect).

1. The Government regards it as important that Australian copyright law maintain an appropriate balance between the rights of copyright owners and the rights of copyright users. Against that background, the Copyright Law Review Committee is to inquire into and report on:
   1. as far as is reasonably ascertainable, the extent to which electronic trade in copyright works and other subject matter is subject to agreements which exclude or modify exceptions to the exclusive rights of copyright owners provided under the Copyright Act;
   2. as far as is reasonably ascertainable, the extent to which trade in copyright works and other subject matter, otherwise than on-line, is subject to agreements which exclude or modify exceptions to the exclusive rights of copyright owners provided under the Copyright Act, and the nature of the difference, if any, with (a);
   3. the ability of owners or users of copyright to enforce agreements which exclude or modify exceptions to the exclusive rights of copyright owners;
   4. whether agreements which exclude or modify exceptions provided under the Copyright Act should be enforceable under the Act;
   5. the views of the owners and users of copyright material on (c) and (d);
   6. the possible relevance of the Committee's findings in response to (c) or (d) for exceptions provided under the Circuit Layouts Act 1989.
   7. a strategy to implement and review the preferred option(s), including whether the preferred options can be implemented by non-legislative change;
   8. incidental matters arising out of points (a) - (g) which are able to be addressed within the time frame for the reference.
2. In undertaking the inquiry, the CLRC will have regard to:
   1. any amendments to the Copyright Act that are introduced into Parliament, or which the Government announces are proposed to be introduced or are being considered;
   2. the recommendations and findings of relevant Government reviews or inquiries and any reports by or views of relevant expert or advisory bodies and other interests;
   3. Australia's relevant international obligations, including those in treaties to which Australia is considering becoming a party;
   4. the principle that legislation which restricts competition should be retained or new legislation should be made only if the benefits to the community as a whole outweigh the costs; and if the objectives of the legislation can be achieved only by restricting competition;
   5. the possible effect on the operation and complexity of any future copyright legislation as a result of the need to introduce transitional provisions and the desirability of introducing such provisions in relation to private agreements;
   6. the Government's policy that the compliance cost and paperwork burden on small business should be reduced where feasible.
3. In undertaking the review, the Committee is to advertise widely and consult with key interest groups and affected parties.
4. In undertaking the review and preparing its report and associated recommendations, the Committee is to report to the Attorney-General by 30 April 2002.