AUSFTA Free Trade Agreement
The AUSFTA came into force on 1 January 2005.
A number of amendments were made to Australia's copyright law in late 2004 to meet particular obligations under the AUSFTA. The main changes include the following:
- performers were given economic and moral rights in their sound recordings and moral rights in their live and recorded performances
- criminal offences were broadened to target copyright infringements undertaken for commercial advantage or financial gain and significant infringements on a commercial scale
- new provisions were introduced in relation to the unauthorised receipt and use or distribution of encoded broadcasts
- the term of protection for most copyright material was extended by 20 years
- a new scheme was introduced to limit remedies available against Carriage Service Providers who help copyright owners combat online piracy
- protection against a wider range of unauthorised reproductions was introduced
- protection for electronic rights management information was extended
Most of these changes came into effect on 1 January 2005.
- New performers’ rights in sound recordings
- Amendments to criminal law provisions
- Amendments to encoded broadcast provisions
- Extension of Copyright Term
- Limitations on remedies for copyright infringement against carriage service providers
- Exception for the normal use of copyright material
- Electronic rights management information
New performers’ rights in sound recordings
How has the Act been changed?
The Copyright Act (as amended by US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act)) establishes performers as makers of sound recordings of their performances. As such, they are first owners of the copyright in the recordings along with the owners of the master recording – usually the record company. Because this new performers’ interest is a share of the sound recording copyright, it is transferable like other interests in copyright. When this fact sheet talks about the performers’ share of the copyright in a recording it should be read as including reference to the holder of that share where the performer has transferred it.
Which recordings are subject to performers’ rights?
Recordings in which performers hold a share of the copyright are those directly made of the performers’ performances. The copyright in a recording comprising a mix of pre-existing recordings of performances will not be shared by the performers. However, through having a share of the copyright in the direct recording of their performance, the performers would be able to exercise control over use of the recording in the mix.
Who is a performer?
Performers who benefit from the new rights in a recording are those who can be heard in it. A participant in a performance who dances silently does not have a share of the copyright in the recording. However, the conductor of a musical performance is specifically treated as an entitled performer.
Who owns copyright in sound recordings of employed performers?
Where a recorded performance was given in the course of employment, the performer’s employer is the first holder of the performer’s share of the recording copyright. This is a default position in the absence of any agreement between the employer and employee to allocate copyright ownership to the performer or a third party. The existing rule that the copyright in a commissioned recording vests in the commissioning party continues to apply so that, in default of any agreement to the contrary, performers do not hold any share of the copyright in commissioned recordings.
How are pre-2005 recordings affected?
The copyright in recordings made before 1 January 2005, if it has not expired, will also be shared by the performers. However, the owner of the copyright immediately before that date will be able to go on exploiting the copyright as he or she expected to do when contracting the performers to make the recording. Nor will the performers, by virtue of their new rights, be entitled to stop the pre-2005 owner from licensing the use of the recording by third parties, nor will they be able to sue for damages or recover infringing copies or receive remuneration for use of the recording under statutory licences.
However, the pre-2005 copyright owner would have to comply with any restriction on exploitation in the recording contract or in a later agreement with the performers. Importantly for the performers, their new share of the copyright will enable them to stop third party infringements of the recording. For instance, the performer could take action to stop the making, distribution or importation of pirate copies of their recording where the original owner of the copyright was in no position to do so, eg, because of insolvency.
What happens if one copyright owner can’t find the other owners?
There are new rules covering the case where there two or more owners of a copyright in sound recording that has been published and one or some of them wish to further exploit it but cannot, after making reasonable efforts, find the other owner(s). They may now proceed to exploit the recording further without the permission of the untraceable owner(s). However, they must hold the relevant share of proceeds from the further exploitation on trust for the untraceable owner(s).
How have performers’ rights against bootleg recordings, broadcasts and other communications to the public changed?
A performer’s right to prevent use of their performance without their permission, ie, ‘bootlegging’, has been strengthened. A performer can now take action against an unauthorised non-broadcast transmission to the public of their performance, eg, Internet streaming of the performance.
The scope of exceptions to the performer’s right against bootlegging has been reduced. Notably, the exception allowing the making of an unauthorised sound recording from a live broadcast for private and domestic use has been narrowed, so that the recording must be a ‘fair dealing’ for the purpose of research or study. Other exceptions that have been narrowed concern unauthorised recording for educational use and use for news reporting.
Amendments to criminal law provisions
Background
The US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act) made a series of amendments to criminal offence provisions of the Copyright Act 1968 (the Act). The amendments implement general criminal law obligations under the Australia-United States Free Trade Agreement (AUSFTA). Both the AUSFTA and the criminal law offence amendments in the USFTAI Act and the CLA Act came into force on 1 January 2005.
The key criminal offence obligation under the AUSFTA is to provide for criminal procedures and penalties to be applied at least in cases of wilful copyright piracy on a commercial scale.
Under the AUSFTA, this includes two specific types of conduct:
(1) where a person has committed significant wilful infringements of copyright with no direct or indirect motivation of financial gain.
(2) where a person has committed wilful infringements of copyright for the purposes of commercial advantage or financial gain.
Implementation of this obligation has been achieved by a series of amendments to the criminal law provisions in sections 132 (general offences) and 135AS (broadcast decoding devices) of the Act.
Broadening the scope of existing offences
The amendments made by the USFTAI Act and the CLA Act will broaden the scope of offences in sections 132 and 135AS of the Act to criminalise certain activity involving infringing copies and broadcast decoding devices where that activity is committed ‘with the intention of obtaining a commercial advantage or profit’. For example, the distribution from an internet site of infringing copies of movies or computer software not for profit but for some other commercial advantage (eg, attracting commercial sponsorship) may come within the scope of the offence.
The amendments will also broaden the scope of the offence in paragraph 132(1)(a) of the Act so that it applies to the making of infringing copies with the intention of obtaining a commercial advantage or profit (thereby strengthening the current offences regime that targets activity such as ‘business end user piracy’). For example, this will ensure that the offence is wide enough in scope to criminalise the making of infringing copies of computer software in a business for internal commercial use.
Importantly, the amendments include a definition of ‘profit’ which excludes ‘any advantage, benefit or gain resulting from or associated with private or domestic use of any copyright material in the work or other subject-matter’. This ensures that the scope of the offences does not extend beyond commercial uses of copyright material in a work or other subject-matter.
New offence relating to significant infringement of copyright
The amendments also inserted new subsection 132(5DB) into the Act which makes it an offence where:
- a person has committed one or more infringements of the copyright in a work or other subject-matter,
- the infringement or infringements occur on a commercial scale, and
- the infringement or infringements have a substantial prejudicial impact on the owner of the copyright.
The offence is intended to implement the obligation under the AUSFTA that criminal procedures and remedies apply to a person who has engaged in significant infringing activity on a commercial scale but where they have no direct or indirect motivation of financial gain. For example, this offence may be committed by a person who creates a web site that allows infringing copies of movies or computer software to be downloaded to internet users for free.
Under new subsection 132(5DC) of the Act, certain matters are to be taken into account in determining whether one or more infringements on a commercial scale under subsection 132(5DB) occurs. These include the volume and value of any articles that are infringing copies.
Other fact sheets outline specific criminal law changes to other areas of the Act, including further changes to provisions dealing with broadcast decoding devices.
Amendments to encoded broadcast provisions
Background
The US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act) made a series of amendments to the encoded broadcast provisions in Part VAA of the Copyright Act 1968 (the Act). The amendments implement obligations under Article 17.7 of the Australia-United States Free Trade Agreement (AUSFTA). Both the AUSFTA and the encoded broadcast amendments in the USFTAI Act and the CLA Act came into force on 1 January 2005.
Wider criminal and civil liability
The amendments to Part VAA of the Act have strengthened the protection of encoded broadcasts by widening the scope of both criminal and civil liability. In summary, criminal liability will now extend to:
- any use of a broadcast decoding device to gain access to an encoded broadcast without authorisation of the broadcaster where the person uses, or authorises the use of, the device by way of trade or with the intention of obtaining commercial advantage or profit (sub-s 135AS(1A)),
- the distribution of a decoded broadcast without authorisation irrespective of whether the distribution is for commercial advantage or profit (sub-s 135AS(1B)), and
- the use of a broadcast by way of trade or with the intention of obtaining a commercial advantage where the initial decoding of the encoded broadcast was done by another person without authorisation of the broadcaster (sub-s 135AS(1C)).
Activity for which civil actions may be brought has also been widened to include:
- use of a broadcast decoding device to gain unauthorised access to an encoded broadcast where the person knew or ought reasonably to have known that the decoding was unauthorised (sub-s 135ANA(1)),
- distribution of a decoded signal where there is a prejudicial impact on a person with an interest in the signal and the person distributing the signal knew that it had been accessed without the broadcaster’s authorisation (sub-s 135ANA(1A)), and
- reception of an encoded broadcast that has been accessed through a broadcast decoding device (regardless of whether the person receiving the broadcast used a decoding device themselves), where the person knew that the broadcaster had not authorised access to the broadcast (sub-s 135ANA(1B)).
The amendments to the civil remedy provisions extend the scope of those provisions under the Act which previously applied only to the use of a broadcast decoding device for the purpose of, or in connection with, a trade or business.
Standing to seek civil remedies has also been extended to channel providers and any other person with an interest in the copyright in the content of the encoded broadcast. Previously, standing to initiate civil proceedings under Part VAA of the Act was available only to broadcasters.
Mode of delivery
The amendments to Part VAA apply to encoded broadcasts regardless of the mode of delivery. In doing so, Australia has gone further than is required by its obligations under Article 17.7 of the AUSFTA by capturing cable signals in addition to satellite signals.
Extension of Copyright Term
What has changed?
Amendments to the Copyright Act made by the US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act) extended the copyright term of works, films and sound recordings from 1 January 2005. The term is now 20 years longer for works, other than photographs, and for films and sound recordings. The term for photographs has been made the same as that for other artistic works.
What materials are affected?
The term extension applies to all materials still in copyright at 1 January 2005 and made after then. Materials in which the copyright expired before 1 January 2005 under the law before it changed are not affected, and stay in the public domain.
What has not changed?
There has been no change to the copyright term for broadcasts or published editions. The term for works, films and sound recordings made by or commissioned by governments has not changed.
What is the new term of copyright protection?
1. Literary works (excluding computer programs), musical and dramatic works and engravings
- If published or made public in author’s lifetime – life of the author plus 70 years
- If not published or made public at the death of the author – 70 years after publication or being made public
2. Computer programs and artistic works (including photographs, but excluding engravings – see 1 above)
- Life of the author plus 70 years
3. Anonymously and pseudonymously published works
- 70 years from publication, if author’s identity not generally known or reasonably ascertainable before then
4. Sound recordings
- 70 years from first publication
5. Films made after 1 May 1969
- 70 years from first publication
6. Broadcasts (television and sound) made after 1 May 1969
- 50 years from making of the broadcast (unchanged)
7. Published editions of works
- 25 years from first publication (unchanged)
The information in the above table is general. Advice should be sought in a particular case if the re is doubt, eg, whether a work has been made public (see category 1 above), whether the identity of the author of an anonymously or pseudonymously published work has become known (category 3) or what the term is for a pre-1969 film (see category 5) or a joint work of two or more authors.
What if before 1 January 2005 somebody had arranged to use a work and now can’t as a result of the change?
Where an agreement was made before 16 August 2004 to use material at a future time when the copyright was then expected to have expired, the intending user may now find that the change in the term has prevented the use without the copyright owner’s permission. The law that extended the copyright term included a transitional scheme under which that intending user may be able to obtain relief. Advice should be sought on the applicability of the scheme to any particular case.
Limitations on remedies for copyright infringement against carriage service providers
Amendments to the Copyright Act 1968 (the Act) in the US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act) commenced on 1 January 2005. The USFTAI Act inserted a new scheme into the Act that limits the remedies available against carriage service providers (CSPs) for certain activities where the CSP complies with relevant conditions. Amendments to the Copyright Regulations 1969 (the Regulations) which also commenced on 1 January 2005, prescribe procedural obligations in relation to some of the conditions.
The purpose of the scheme
The purpose of the scheme is to provide:
- legal incentives for CSPs to cooperate with copyright owners in deterring the infringement of copyright, and
- limitations on the scope of remedies available against CSPs for copyright infringements that they do not control, initiate, or direct, and that take place through their systems or networks.
Who can take advantage of the scheme?
A person seeking to limit remedies for copyright infringement under the scheme must fall within the definition of ‘carriage service provider’ in the Telecommunications Act 1997.
What activities are covered by the scheme?
There are four separate types of activities undertaken by CSPs that are covered by the scheme:
Category A:
Where the CSP acts as a conduit for internet activities through the provision of facilities for transmitting, routing or providing connections for copyright material.
Category B:
Where the CSP caches copyright material through an automatic process.
Category C:
Where the CSP stores copyright material on their systems or networks.
Category D:
Where the CSP refers users to an online location using online information location tools or technology.
Conditions
For each activity there are both general conditions applicable to all four activities and activity specific conditions that a CSP must comply with in order to take advantage of the limitations on remedies.
General conditions
1. Adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of users who are repeat copyright infringers.
2. Accommodate and not interfere with standard technical measures used to protect and identify copyright material in accordance with a relevant industry code.
If an industry code is not in force, this condition does not apply.
Category A Conditions
1. Any transmission, routing or provision of connections for copyright material must be initiated by or at the direction of another person.
2. The copyright material must be transmitted without any substantive modifications to its content. This condition does not apply to modifications made as part of a technical process, for example where ‘format shifting’ is necessary to provide access to copyright material via different technologies.
Category B Conditions
1. If the copyright material that is cached is subject to conditions on user access at the originating site the CSP must ensure that access to significant parts of the cached material is permitted only to users who have met those conditions.
Examples of relevant conditions that may apply at the originating site include requiring registration or subscription in order to access the copyright material.
2. If a relevant industry code is in force, the CSP must comply with relevant provisions of the code relating to updating the cached copyright material. It must also comply with any relevant industry code relating to not interfering with technology used at the originating site to obtain information about the use of the material.
3. Any copyright material must be removed or access to the material blocked if the CSP receives a notice in the prescribed form that the material has been removed or blocked at the originating site. This action must occur expeditiously from the receipt of the notice.
The Regulations prescribe the form to be used by copyright owners in relation to this condition.
4. The copyright material must be transmitted without any substantive modifications to its content. This condition does not apply to modifications made as part of a technical process, for example where ‘format shifting’ is necessary to provide access to copyright material via different technologies.
Category C Conditions
1. The CSP must not receive a financial benefit that is directly attributable to the infringing activity if the CSP has the right and ability to control the activity.
In deciding whether a financial benefit is directly attributable to the infringing activity a court must have regard to whether the benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice. The court may also have regard to any other matters it considers relevant.
2. The CSP must expeditiously remove or disable access to material residing on its system or network upon receipt of a notice in the prescribed form that the copyright material has been found to be infringing by a court.
The Regulations prescribe the form to be used by copyright owners in relation to this condition.
2A. The CSP must act expeditiously to remove or disable access to copyright material residing on its system or network if the CSP:
(a) becomes aware that the material is infringing; or
(b) becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing.
3. The CSP must comply with a prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network.
Prescribed procedure
Notice and takedown
This procedure applies where the CSP becomes aware of a matter in condition 2A as a result of receiving a notice of claimed infringement from the copyright owner.
- Where a copyright owner or the owner’s agent believes on reasonable grounds that their copyright material is being stored on a system or network controlled or operated by a CSP without their authority, they may forward a notice of claimed infringement to the CSP.
The Regulations prescribe a form for notices of claimed infringement. - On receipt of the notice of claimed infringement, the CSP must expeditiously remove or disable access to the material referred to in the notice.
- The CSP must then take reasonable steps to expeditiously forward the notice of claimed infringement to any user/s responsible for the material, and inform the user/s that the material has been removed or access to it has been disabled.
- On receipt of notification from the CSP the user may issue a counter-notice stating that the user has a good faith belief that the notice of claimed infringement was issued as a result of mistake or misidentification, and providing the grounds for that belief.
- On receipt of a counter-notification the CSP must forward the relevant details of the counter-notice to the copyright owner or agent (complaining party), including any grounds upon which the user has contested the notice of claimed infringement.
- If the copyright owner or agent (complaining party) notifies the CSP within 10 working days that it has commenced proceedings seeking a court order to restrain the activity that is claimed to be infringing the CSP is not required to take any further action.
- If the copyright owner or agent (complaining party) does not notify the CSP that they have commenced proceedings seeking a court order to restrain the activity that is claimed to be infringing within 10 working days, or the CSP is notified that the legal proceedings have been discontinued or were unsuccessful, the CSP is required to restore the material that is the subject of the counter-notice.
Takedown other than following notice by the copyright owner
This procedure applies where the CSP becomes aware of a matter in condition 2A other than as a result of receiving a notice of claimed infringement from the copyright owner and has removed or disabled access to the copyright material residing on its system or network.
- As soon as practicable after removing, or disabling access to copyright material the CSP must notify the user in accordance with the Regulations.
- On receipt of notification by the CSP the user may issue a counter-notice disputing the grounds for removing or disabling access to the material and requesting that the material be restored.
If a CSP receives a counter-notice and the information in the counter-notice satisfies the CSP that the material is not infringing or is not likely to be infringing, the CSP must restore or enable access to the copyright material.
Category D Conditions
1. The CSP must not receive a financial benefit that is directly attributable to the infringing activity if the CSP has the right and ability to control the activity
In deciding whether a financial benefit is directly attributable to the infringing activity a court must have regard to whether the benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice. The court may also have regard to any other matters it considers relevant.
2. The CSP must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court.
The Regulations prescribe the form to be used by copyright owners in relation to this condition.
2A. The CSP must act expeditiously to remove or disable access to a reference residing on its system or network if the CSP:
(a) becomes aware that the material to which it refers is infringing; or
(b) becomes aware of facts or circumstances that make it apparent that the material to which it refers is likely to be infringing.
3. The CSP must comply with a prescribed procedure in relation to removing or disabling a reference residing on its system or network.
Prescribed Procedure
Notice and takedown system
This procedure applies where the CSP becomes aware of a matter in condition 2A as a result of receiving a notice of claimed infringement from the copyright owner.
- Where a copyright owner believes on reasonable grounds that a reference (eg a hyperlink) provided by a CSP refers to copyright material which has been made available online without their authority they may forward a notice of claimed infringement to the CSP.
On receipt of the notice of claimed infringement the CSP must expeditiously remove or disable access to the reference referred to in the notice.
Is compliance with the scheme by CSPs compulsory?
Compliance with the scheme is optional. While actions taken by a CSP in relation to the conditions of the scheme set out in the Act and Regulations may have some relevance to whether or not copyright infringement has occurred, the scheme does not affect the way provisions in the Act in relation to the determination of liability for copyright infringement should be interpreted or limit the application of the exceptions in the Act. Further, the failure of a CSP to qualify for any limitations on remedies in this scheme does not make the service provider liable for copyright infringement. A copyright owner must still establish that a CSP has infringed copyright under the Act.
Limitations on remedies
Where a CSP complies with the conditions relevant to a particular category of activity a court must not grant relief against a CSP for copyright infringement that consists of damages or an account of profits, additional damages or other monetary relief.
The scheme also provides for non-monetary orders that a court can make against a CSP in relation to the four categories of activity.
Are CSPs required to monitor their system or network?
A CSP is not required to monitor its service or to seek facts to indicate infringing activity in order to be eligible for any of the limitations on remedies associated with the four categories of online activity in the scheme. An exception occurs where the CSP is required to monitor its system or seek facts to indicate infringing activity in order to comply with an industry code in force, as set out by the general conditions in relation to accommodating and not interfering with standard technical measures used to protect and identify copyright material. At present there is no such industry code in force.
Form of notices
The Regulations prescribe the information that must be included in a notice under the notice and takedown procedures set out above, as well as notices for the removal of cached material that has been removed from the originating site and removal of material that has been found to be infringing by a court of law. Notices must be in accordance with, or substantially in accordance with, the forms prescribed in the Regulations.
Publically designated representative
CSPs must publicly designate a representative to receive notifications under the CSP liability scheme.
In order to satisfy this requirement they must provide a position title and information that is reasonably sufficient to enable contact with the representative. This information must be made reasonably prominent on the CSP’s website.
Immunity from liability
The Regulations provide that a CSP is not liable for damages or any other civil remedy as a result of action taken in good faith to comply with the notice and takedown system.
If a CSP does not comply with a counter-notice (ie, chooses not restore material where the complaining party has not commenced legal proceedings within a reasonable period of time) they will retain immunity from actions by the copyright owner, but will not receive immunity from legal actions initiated by subscribers or third parties.
Knowing misrepresentations
Where a party makes a knowing misrepresentation in a notice (including failing to take reasonable steps to ensure the accuracy of the information contained in the notice) any person who suffers a loss as a result of the misrepresentation may bring a civil action.
Making a knowing misrepresentation in relation to statements included in notices under the CSP liability scheme will also be a criminal offence under s137.2 of the Criminal Code Act 1995. In this case, the offence extends only to circumstances in which the person knew that the statements are false or misleading (as opposed to failing to take reasonable steps to ensure their accuracy).
Industry code
The Regulations provide that an industry code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material must be developed through an open, voluntary process by a broad consensus of copyright owners and CSPs. The code must also provide that ‘standard technical measures’ are technical measures that:
- are used to protect or identify copyright material
- are accepted under the industry code or developed in accordance with the industry code
- are available on non-discriminatory terms, and
- do not impose substantial costs on CSPs or substantial burdens on their systems or networks.
At present there is no such industry code in force.
Exception for the normal use of copyright material
Amendments to the Copyright Act 1968 (the Act) in the US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004 (CLA Act) commenced on 1 January 2005. The USFTAI Act amended the right of reproduction to include all reproductions of works in any manner or form, permanent or temporary. The USFTAI Act also inserted a new exception to the amended reproduction right to accommodate the normal use of copyright material. Corresponding amendments were also made in relation to subject-matter other than works. Some amendments where made to the Act by the CLA Act to clarify the scope of the new exception.
The right to reproduce works and copy other subject-matter
The USFTAI Act amended the Act to ensure that all reproductions of works and copies of other subject-matter are covered by copyright in Australia.
The amendment to the reproduction right provides that authors, performers and producers of phonograms have the exclusive right ‘to authorise or prohibit all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form) of their works (including cinematograph films), performances fixed in a phonogram, and phonograms.
Definition of material form
The Act provides copyright owners with the exclusive right to reproduce their work or adaptation of a work in material form.
Prior to the amendment made by the USFTAI Act only reproductions that were capable of further reproduction were deemed to be in material form.
Following the amendments in the USFTAI Act, to be in material form the form of the work or adaptation no longer needs to be capable of reproduction. As a result copyright applies to all reproductions, in any manner or form, permanent or temporary.
Meaning of copy
The meaning of copy in the Act has been amended in relation to subject-matter other than works (in particular, sound recordings and cinematograph films). These amendments effectively ensure that all copies, permanent or temporary, of such subject-matter are covered by copyright.
Exception for the normal use of copyright material
As permitted by Australia’s international obligations, including the AUSFTA, exceptions to exclusive rights can be created providing the exception does not conflict with a normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the right holder. The USFTAI Act inserted a new exception into the Act (the exception was also amended by the CLA Act to clarify its scope). The exception ensures that certain reproductions and copies made incidentally as part of the normal use of works legitimately produced and acquired will not constitute an infringement of copyright.
For a particular reproduction to be covered by the new exception it must:
- be temporary, and
- be incidentally made as a necessary part of the technical process of using a copy of the work.
The exception does not apply if:
- the reproduction was made from an infringing copy of the work or if the copy was made in another country would be an infringing copy had it been made in Australia, or
- the use of the work constitutes an infringement of the copyright in the work.
The exception does not apply to any subsequent use of a temporary reproduction of a work other than as a part of the technical process in which the reproduction was made.
A corresponding exception exists in relation to making copies of subject-matter other than works.
Electronic rights management information
Amendments to the Copyright Act 1968 (the Act) in the US Free Trade Agreement Implementation Act 2004 (USFTAI Act) commenced on 1 January 2005. The USFTAI Act included amendments to the Act to implement obligations under the Australia-United States Free Trade Agreement (AUSFTA) that relate to electronic rights management information (ERMI).
What is ERMI?
ERMI refers to specified information that relates to a copy of a work or other subject-matter, or any numbers or codes which represent such information electronically. This would include, for example, technology such as digital watermarks. ERMI typically includes details about the copyright owner, and terms and conditions of use of the copyright material.
Protection of ERMI prior to 1 January 2005
Prior to the commencement of the USFTAI Act, the Act already included provisions protecting ERMI and provided for civil remedies and criminal offences where ERMI was altered or removed. These provisions applied to ERMI that was attached to a copy of a work or other subject-matter.
Protection of ERMI from 1 January 2005
The USFTAI Act effectively broadened the protection afforded to ERMI in the Act. Protection of ERMI includes both civil remedies and criminal offences, and is extended to include ERMI that is separate from, but appears in connection with, or has at some point in time appeared in connection with, a copy of the work or other subject-matter.
Below is a summary of how the ERMI provisions of the Act operate.
ERMI Provisions
Definition of ERMI
The definition requires that the ERMI is information that:
- is electronic; and
either:
- is or was attached to, or is or was embodied in, a copy of the work or subject-matter; or
- appears or appeared in connection with a communication, or the making available, of the work or subject-matter; and
either:
- identifies the work or subject-matter, and its author or copyright owner (including such information represented as numbers or codes); or
- identifies or indicates some or all of the terms and conditions on which the work or subject-matter may be used, or indicates that the use of the work or subject-matter is subject to terms or conditions (including such information represented as numbers or codes).
Removal or alteration of ERMI
The Act provides the copyright owner or exclusive licensee with an action against a person where a person removes or alters ERMI without the permission of the owner or exclusive licensee. The person who removed or altered the ERMI must have known or ought reasonably to have known that the removal or alteration would induce, enable, facilitate or conceal an infringement of copyright.
Distribution to the public etc. of works whose ERMI has been removed or altered
The Act provides a copyright owner or exclusive licensee with an action against a person where any ERMI that relates to a work has been removed or altered and the person:
- distributes a copy of the work or other subject-matter to the public
- imports into Australia a copy of the work or other subject-matter for distribution to the public, or
- communicates a copy of the work or other subject-matter to the public.
The person must have known that the ERMI was removed or altered without the permission of the owner or exclusive licensee and know or ought reasonably to have known that the distribution, importation or communication that was done by the person would induce, enable, facilitate or conceal an infringement of copyright.
Distribution and importation of ERMI that has been removed or altered
The Act provides a copyright owner or exclusive licensee with an action against a person who distributes ERMI or imports into Australia ERMI for distribution without the permission of the owner or exclusive licensee where:
- the ERMI has been removed from a copy of a work or subject-matter without the permission of the owner or exclusive licensee, or
- the ERMI has been removed from a copy of a work or subject-matter with the permission of the owner or exclusive licensee but the ERMI has been altered without permission.
The person must have known that the ERMI has been removed or altered without the permission of the owner or exclusive licensee and the person must have known or ought reasonably have known that the distribution or importation of the ERMI that was done by the person would induce, enable, facilitate or conceal an infringement of the copyright.
Exception relating to national security and law enforcement
None of the causes of action in relation to ERMI apply when something is lawfully done for the purposes of law enforcement or national security by or on behalf of the Commonwealth or a State or Territory; or an authority of the Commonwealth, a State or Territory.
Remedies
The Act provides criminal offences and civil remedies in relation to the above mentioned causes of action.