Welcome to the first copyright newsletter of the Intellectual Property Branch of the Attorney-General's Department.
The major reform in the Copyright Amendment Bill
1997 is the introduction of a comprehensive scheme of moral rights
for creators of works and films. The Bill also rearranges the
ownership of employed journalists' copyright and removes the controls
on the parallel importation of copyright packaging and labelling
of imported goods. Although these amendments have received the
most media attention, the Bill also contains other amendments.
They include changes to the Government copying provisions, improved
provisions for access to copyright materials for institutions
assisting persons with a disability, and provision for appointment
of more than one Deputy President to the Copyright Tribunal to
improve its resources.
The Copyright Amendment Bill 1997 was introduced
into the House of Representatives on 18 June 1997 and passed on
25 June 1997. The Bill was introduced into the Senate on 27 June
1997 and was referred to the Senate Legal and Constitutional Legislation
Committee. The Committee held three public hearings concerning
the Bill. It also received 118 submissions. The Committee's
report was tabled on 27 October 1997. The report generally supported
the reforms in the Bill.
The Senate Committee report made several recommendations
on the moral rights provisions of the Bill. The Committee recommended
that a screenwriter be included in the definition of "author"
and "maker" of a cinematograph film, and recommended
an extension to the waiver provision to allow for waiver of commissioned
works and films. With regard to the employed journalists' copyright
amendments, the Committee recommended that the Government further
consider the right of restraint provided to proprietors of newspapers
and magazines to block extensive photocopying of their publications.
Copies of the Senate Committee report and related
material can be found at the Australian Parliament House website
The Government is currently preparing its response
to these recommendations.
Contact officer for coordination of the Copyright
Amendment Bill; moral rights (Schedule 1 in the Bill); copying
for the services of the Commonwealth, State and Territory Governments
(Schedule 5 in the Bill); people with an intellectual disability
and people with a print disability (Schedule 6 in the Bill); copying
of works etc by institutions (Schedule 7 in the Bill); Copyright
Tribunal (Schedule 8 in the Bill); educational institutions (Schedule
10 in the Bill); and minor amendments (parts of Schedule 11 in
the Bill): Helen Daniels, Senior Government Lawyer, (tel: 02
6250 6325 or email: helen.daniels@ag.gov.au).
Contact officer for employed journalists' copyright
(Schedule 2 in the Bill) and changes to references to broadcasting
legislation (part of Schedule 11 in the Bill): Catherine Hawkins,
Senior Government Lawyer, (tel: 02 6250 6608 or email:
catherine.hawkins@ag.gov.au).
Contact officer for packaging and labelling of imported
goods (Schedule 3 in the Bill); conversion and detention (Schedule
4 in the Bill); and imported copies of copyright material (Schedule
9 in the Bill): Steve Fox, Senior Government Lawyer, (tel: 02
6250 6613 or email: stephen.fox@ag.gov.au).
On 30 April 1998, the Attorney-General, the Hon Daryl
Williams AM QC MP, and the Minister for Communications, the Information
Economy and the Arts, Senator the Hon Richard Alston, announced
the Government's decision on the "Digital Agenda" copyright
reforms.
The joint press release from the Ministers
noted that Australia will have some of the world's most advanced
Internet legislation as a result of reforms to improve protection
for copyright material.
The new right of communication to the public will
replace and extend the existing technology-specific transmission-type
rights; ie, the wireless broadcast right and the limited cable
diffusion right will be replaced by the new right. Because the
new communication right will be technology-neutral, it will apply
to future developments in technology and transmission methods,
such as web TV, without the need to amend the Copyright Act
1968.
The Digital Agenda copyright reforms will ensure
that libraries and educational institutions will have reasonable
access to copyright material available online.
Bearing in mind these concerns, the Government has
decided that the Copyright Act will be amended to make it clear
that carriers and ISPs will not be liable for copyright infringements
on their customers' web sites by reason only of the fact that
the infringements occurred on the facilities of the carrier or
ISP. This will provide greater legal certainty for carriers and
ISPs.
First, the Government has agreed to new sanctions
against the abuse of technological copyright protection measures
- including program locks and encryption of broadcasts. For example,
the Government's decision will mean that commercial dealings with
unauthorised decoders that enable the reception of a pay TV signal
without payment to the pay TV operator will be subject to both
criminal sanctions and civil remedies.
Secondly, the Government has agreed to new sanctions
against the intentional tampering with rights management information
(RMI) that is electronically attached to copyright material.
RMI can include details about the copyright owner and the terms
and conditions of use.
These Digital Agenda copyright reforms will further
increase the effectiveness of Australia's already strong anti-piracy
laws.
The Digital Agenda copyright reforms are consistent
with internationally accepted standards. The most recent obligations
are found in the World Intellectual Property Organisation (WIPO)
Copyright Treaty and the WIPO Performances and Phonograms Treaty
which were agreed to in December 1996 in Geneva. Many countries
have signed these two new WIPO treaties, including the USA, countries
in the European Union and Indonesia. However, the treaties have
not yet entered into force as WIPO has not yet received the 30
ratifications and accessions for each treaty that are necessary
for their entry into force.
The Digital Agenda copyright reforms will ensure
that Australia continues to take advantage of the opportunities
arising from the new information economy, which will have benefits
for all Australians.
These important copyright reforms will be included
in an exposure draft Copyright Amendment Bill that the Government
hopes to be able to release for public comment in the coming months.
The Attorney-General gave a speech at Murdoch University
on the Digital Agenda copyright reforms on 30 April 1998. The
full text of that speech can be accessed at the Attorney-General's
home page.
Contact officer for Digital Agenda reforms: Catherine
Hawkins, Senior Government Lawyer, (tel: 02 6250 6608 or email:
catherine.hawkins@ag.gov.au).
New right of communication to the public
The centrepiece of the Digital Agenda reforms is
a new, broadly-based technology-neutral right of communication
to the public. This new right will apply to works made available
on the Internet and other on-line services, as well as works transmitted
or broadcast to the public. The new right will apply to works
(including books, plays, software, art and music), sound recordings,
films and broadcasts.
Exceptions
The Government has agreed to exceptions to the new
right of communication to the public for fair dealing, libraries
and educational institutions. As far as possible, these new exceptions
will replicate the existing exceptions in the Copyright Act that
apply in the hard copy environment.
Liability of carriers and ISPs
In response to the proposals in the Discussion Paper,
Copyright Reform and the Digital Agenda (July 1997),
carriers and Internet service providers (ISPs) expressed considerable
concern about the uncertainty of the circumstances in which they
could be liable for copyright infringements by others.
Enforcement measures
The Government has also agreed to two new enforcement
measures in response to the problem of enforcement in cyberspace.
Consultation process
The Digital Agenda reforms announced by the Government
implement many of the proposals contained in the Discussion Paper,
Copyright Reform and the Digital Agenda. That Discussion
Paper received widespread industry support. Over 70 written submissions
were received on the paper and over 10 face-to-face consultation
forums were conducted jointly by the Attorney-General's Department
and the Department of Communications and the Arts. The views
expressed during the consultation phase were taken into account
in the development of the Government's decision on the Digital
Agenda copyright reforms.
CLRC software recommendations
The Government has also agreed to adopt many of the
recommendations in the Copyright Law Review Committee (CLRC) 1995
report, Computer Software Protection. The CLRC
report also received wide industry support. The CLRC recommendations
adopted by the Government largely relate to fine-tuning existing
copyright protection for computer software. Appropriate copyright
protection for software is important as software underpins the
information economy. The recommendations by the CLRC on decompilation
and parallel importation are under separate ongoing consideration
by the Government.
On 20 November 1997 the Attorney-General introduced the Copyright Amendment Bill (No 2) 1997 into the House of Representatives. The Bill provides that non-pirate CDs, ie, CDs made legitimately in other countries, can be imported into Australia without the consent of the Australian copyright owner. That is, the Bill effectively removes the copyright owner's control over "parallel importation" of CDs.
The Bill maintains the existing rights of copyright owners to stop commercial importation of pirate CDs. The Bill also provides for a range of measures to improve protection for owners of copyright in sound recordings. In civil proceedings for importation of infringing copies of CDs, the onus of establishing the defence that the imported CD was not a pirate copy is placed on the importer or distributor in Australia. The Government intends that the Bill also will increase the maximum monetary penalties for copyright offences by 10%.
The Bill was passed by the House on 26 November 1997 and subsequently referred to the Senate Legal and Constitutional Legislation Committee for report. During February and March 1998 the Senate Committee held seven public hearings on the Bill. On 1 April 1998 the Senate Committee tabled its report on the Bill.
The majority report of the Senate Committee recommended that the Bill be passed but also made some suggestions for consideration. For example, the Senate Committee recommended that the Government should seek advice from the Attorney-General's Department about the "potential indirect effects" of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on the Bill.
The Government is considering its response to the Senate Committee report.
Contact officer for CD prices: Steve Fox, Senior
Government Lawyer, (tel: 02 6250 6613 or email: stephen.fox@ag.gov.au).
On 20 March 1998 the Attorney-General, the Hon Daryl Williams AM QC MP and the Minister for Communications, the Information Economy and the Arts, Senator the Hon Richard Alston, announced the Government's decision on broadcasting and copyright issues arising from the retransmission by pay TV operators of free-to-air broadcasts.
In relation to copyright matters, the Ministers announced that the Government had made an in-principle decision to amend the Copyright Act to ensure that pay TV operators are required to pay underlying rights holders in free-to-air broadcasts for the retransmission of those broadcasts.
Currently under the Copyright Act, pay TV operators are not required to compensate underlying rights holders in broadcasts for the cable retransmission of those broadcasts.
On 30 April 1998, as part of the Digital Agenda reforms, the Government announced that it had decided to provide pay TV operators with a statutory licence to retransmit free-to-air broadcasts subject to the payment of royalties to the underlying rights holders.
Contact officer for retransmission: Catherine Hawkins,
Senior Government Lawyer, (tel: 02 6250 6608 or email:
catherine.hawkins@ag.gov.au).
On 24 March 1998 the Attorney-General announced three new appointments to the Copyright Tribunal. The Honourable Justice Raymond Finkelstein has been appointed as Deputy President. Justice Finkelstein is a judge of the Federal Court of Australia in Victoria.
Professor Dennis Pearce and Ms Angela Bowne were also appointed as members of the Tribunal. Professor Pearce is the Chairman of the Copyright Law Review Committee and, among other things, is Emeritus Professor at the Australian National University and Chairman of the Australian Press Council. Ms Bowne is a barrister practising in Sydney and has substantial experience in intellectual property law.
The Copyright Tribunal has a range of arbitral functions. These include fixing the amount of royalties payable under the statutory licences for photocopying and off-air copying of broadcasts by schools, universities and colleges and under the statutory licence for the use of copyright material by governments. The Tribunal also fixes the amount of royalties payable for playing music in public.
The appointments to the Tribunal are for three years.
Contact officer for appointments to the Copyright
Tribunal: Helen Daniels, Senior Government Lawyer, (tel: 02 6250
6325, email: helen.daniels@ag.gov.au).
On 23 December 1997, the Attorney-General, the Hon Daryl Williams AM QC MP, and the Minister for Communications, the Information Economy and the Arts, Senator the Hon Richard Alston, announced the publication of a Discussion Paper jointly prepared by the Attorney-General's Department and the Department of Communications and the Arts entitled Performers' Intellectual Property Rights. The paper invited comments on proposed amendments to the Act to improve the protection for performers.
The paper is the second in a series of three papers seeking input from the community on whether Australia should become a party to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, that were adopted at the WIPO Diplomatic Conference in December 1996. The first paper, Copyright Reform and the Digital Agenda, was released in July 1997. The final paper, to be published shortly, will deal with general issues in relation to Australia's possible accession to the new treaties.
Currently, performers have limited rights to prevent the unauthorised (or bootleg) recording or broadcasting of their live performances.
The Discussion Paper uses the new performers' rights standards in the WPPT as the basis for a proposed new scheme for performers' rights in Australia.
Essentially the Discussion Paper proposes a number of new economic rights which would give performers copyright-style rights in sound recordings of their performances. These are rights to authorise reproduction, distribution, rental and making available online to the public of sound recordings of performances. The Discussion Paper also invites comment on whether performers should have the right to share with producers of sound recordings the remuneration payable for broadcasting and playing in public of sound recordings of their performances.
The Discussion Paper invites comments on whether the scheme of moral rights for authors of works and directors and producers of films in the Copyright Amendment Bill 1997 is an appropriate model on which to base a scheme of moral rights for performers.
The Attorney-General's Department and the Department of Communications and the Arts will jointly conduct consultations with key interests on the proposals in the Discussion Paper.
The Discussion Paper is accessible online at the Attorney-General's Department's web site, Window on the Law and the Department of Communications and the Arts website. Hard copies of the Discussion Paper are also available from the Attorney-General's Department (tel: (02) 6250 6655) and the Department of Communications and the Arts (tel: (02) 6279 1574).
The deadline for comments on the Discussion Paper has been extended to Friday 29 May 1998.
Contact officer for performers' rights: Steve Fox,
Senior Government Lawyer, (tel: 02 6250 6613 or email:
stephen.fox@ag.gov.au).
The APEC Intellectual Property Experts Group met in Canberra on 5-6 March 1998. About 30 officials, including Australian officials, attended the meeting. Officials from all APEC member economies, except Malaysia, attended the meeting.
The focus of the meeting was the ongoing APEC intellectual property work program. This program includes the creation and maintenance of intellectual property contact lists, surveys on the way in which APEC member countries are implementing obligations in the TRIPS Agreement, and enforcement of intellectual property rights.
The lists for both Government and private sector contacts on intellectual property can be accessed at the APEC website. Other information, such as the survey on the ways in which APEC countries are implementing TRIPS obligations, is likely to be available on the APEC website shortly.
Contact officer for APEC IP Expert Group: Steve
Fox, Senior Government Lawyer, (tel: 02 6250 6613 or email:
stephen.fox@ag.gov.au).
The Attorney-General gave the opening speech at the Workshop on the TRIPS Agreement for LDCs on 27 April 1998. The TRIPS Workshop was held in Sydney and was attended by government officials from a range of countries including Bangladesh, Nepal, Mongolia, Vietnam, Fiji, Samoa, Solomon Islands, Papua New Guinea and Tonga. The TRIPS workshop was organised by the WTO TRIPS secretariat in conjunction with the Australian and New Zealand Governments. The Australian Department of Foreign Affairs and Trade, which administers Australia's relationship with the WTO, took the lead role in organising the workshop.
The key message of the speech by the Attorney-General was the need for effective enforcement of intellectual property rights, namely appropriate laws and procedures.
The Attorney stated that the protection of intellectual property rights, as provided for in the TRIPS Agreement, is of vital and urgent concern to all countries in the present global trading environment. Australia is pressing ahead with reforms on a range of intellectual property matters, for which TRIPS provides the foundation, and which promise great benefits. TRIPS provides sufficient flexibility to appropriately balance the needs of creators and users.
In his speech, the Attorney-General noted that Australia's system of enforcement may offer some lessons to LDCs which are in the process of working out how to implement the enforcement obligations in the TRIPS Agreement. The laws and legal system in Australia are well equipped to deter and respond to counterfeiting and piracy of intellectual property - including if parallel importation of sound recordings is permitted.
A copy of the speech by the Attorney-General is available on request from the Intellectual Property Branch.
Contact officer for WTO TRIPS Workshop for LDCs:
Steve Fox, Senior Government Lawyer, (tel: 02 6250 6613 or email:
stephen.fox@ag.gov.au).
The purpose of this newsletter is to keep you up-to-date with copyright developments in the Australian Government.
The Government's recent announcement of major reforms
to bring copyright law in Australia into the digital age is an
opportune time for the Attorney-General's Department to come online
and use email to inform the community about copyright reforms
and other Government developments in copyright.
We intend to publish an online newsletter like this
one several times a year.
As this is the first copyright newsletter from the Attorney-General's Department, we have provided some background information about the role of the Intellectual Property Branch in the Department. We hope that this information will clarify for you who does what on copyright in the Australian Government.
Under the Administrative Arrangements Order (AAO)
the Attorney-General is responsible for the Copyright Act 1968.
The AAO sets out which Ministers are responsible for each of
the Acts of the Australian Parliament. Since 1993, the Department
of Communications and the Arts has had joint responsibility with
Attorney-General's Department for most copyright policy matters.
The Intellectual Property Branches in the Attorney-General's
Department and the Department of Communications and the Arts have
monthly cooperation meetings to monitor progress of the Government's
copyright reform agenda.
The Attorney-General's Department Intellectual Property Branch has extensive expertise on all aspects of copyright law and policy. We give legal and legal policy advice to the Attorney-General and Commonwealth Government agencies on a range of copyright and related issues including:
Chris Creswell is the Assistant Secretary heading the Intellectual Property Branch. Chris has many years of experience in copyright law matters in the Attorney-General's Department. Chris can be contacted on tel: (02) 6250 6313, fax: (02) 6250 5929 or email: chris.creswell@ag.gov.au.
My Hanh Rusk (tel: 02 6250 6655 or email: myhanh.rusk@ag.gov.au) and Angela Tsongas (tel: 02 6250 6875 or email: angela.tsongas@ag.gov.au) provide the Intellectual Property Branch with administrative support.
The Intellectual Property Branch is divided into four Sections: click below for more information.
We have expertise on the Government provisions of the Copyright Act. We advise the Government on:
The people to contact in this area are Helen Daniels
(tel: 02 6250 6325 or email: helen.daniels@ag.gov.au)
and Jacqueline Barrett (tel: 02 6250 6326 or email: jacqueline.barrett@ag.gov.au).
We advise on the copyright implications of new technologies, both within Australia and in international forums.
We are playing a key role in the top-level moves within Government to develop a whole of government approach to facilitating the growth of the information economy. We advise on:
The people to contact in this area are Catherine
Hawkins (tel: 02 6250 6608 or email:
catherine.hawkins@ag.gov.au) and David Rees (tel: 02 6250 6324
or email: david.rees@ag.gov.au) .
We have expertise in a range of multilateral copyright and related conventions. We advise on:
We also advise on copyright and designs, copyright and importation, enforcement of copyright, performers' rights, and regional and bilateral IP cooperation.
The people to contact in this area are Steve Fox
(tel: 02 6250 6613 or email: stephen.fox@ag.gov.au) and
James Barker (tel: 02 6250 6658 or email: james.barker@ag.gov.au).
The Copyright Law Review Committee (CLRC) is an independent expert group that advises the Government on references given to it by the Attorney-General.
The CLRC is chaired by Professor Dennis Pearce. The members of the CLRC are Dr Andrew Christie, Mr Malcolm Colless, Ms Victoria Rubensohn, Ms Rhonda Smith and a representative from the Attorney-General's Department, Chris Creswell. The Committee is also able to test its ideas with a panel of experts who represent the interests of the creators and users of copyright material. The members of the Expert Advisory Group (EAG) are Ms Libby Baulch, Ms Anne Fitzgerald, and Mr Tom Cochrane.
The Attorney-General's Department Intellectual Property Branch provides the Secretariat for the Copyright Law Review Committee (CLRC).
The CLRC secretariat can advise you on progress with the CLRC's current reference and how its work relates to the policy development being handled by the rest of the Branch. We can help with your queries about reports on past references to the CLRC.
For further information, please see the CLRC's website .
The people to contact are Peter Treyde (tel: 02
6250 6323 or email: peter.treyde@ag.gov.au), Simon Cordina
(tel: 02 6250 6713 or email: simon.cordina@ag.gov.au)
and Angela Damis (tel: 02 6250 5786 or email: angela.damis@ag.gov.au).
Caroline Goldstein (tel: 02 6250 6076 or email: caroline.goldstein@ag.gov.au)
provides the CLRC with administrative assistance.
The Attorney-General's Department has produced a booklet on copyright law entitled Copyright Law in Australia: A Short Guide. For copies please phone (02) 6250 6875.
For information on press releases, speeches by the Attorney-General, an e-version of Copyright Law in Australia: A Short Guide and much more, please visit the Attorney-General's Department website, Window on the Law.
Please note that the Attorney-General's Department is not able to give legal advice on specific copyright matters. Such enquiries can be made to the Australian Copyright Council (tel: 02 9318 1788).
The newly named IP Australia (formerly the Australian
Industrial Property Organisation) is responsible for the legislation
and administration covering patents, trade marks and designs.
Please call IP Australia (tel: 1300 651 010) if you would like
information about these areas of intellectual property.
If you have any questions or comments about the AGD
e-News on Copyright please send an email to IP_Branch@ag.gov.au.
This is also the contact if you would like other
people to receive this newsletter or if you would like to be removed
from this email list.
If you would like to discuss any administrative matters
arising from this newsletter, please contact Angela Tsongas (tel:
02 6250 6875 or email: angela.tsongas@ag.gov.au).
If you would like to discuss any other matters arising
from this newsletter, please contact Catherine Hawkins (tel:
02 6250 6608 or email: catherine.hawkins@ag.gov.au).
Attorney-General's Department. Intellectual Property Branch.
e-News on Copyright May 1998.
© Commonwealth of Australia 1998.