Welcome to the fourteenth copyright newsletter of the
Intellectual Property Branch of the Attorney-General's Department.
Copies of this newsletter are available on the e-News
on Copyright website at http://law.gov.au/copyright_enews. You may (and please do) forward this newsletter to friends
and colleagues.
Copyright Amendment (Digital Agenda) Bill 1999
The Copyright Amendment (Digital Agenda)
Bill 1999 passed through the House of Representatives on the evening
of 28 June 2000. The Government and Opposition moved amendments
to the Bill to implement a number of the recommendations of the
House of Representatives Standing Committee on Legal and Constitutional
Affairs (the Andrews Committee).
The Bill was introduced into the House
of Representatives on 2 September 1999 and referred to the Andrews
Committee for inquiry and report. The Andrews Committee received
some 100 written submissions on the Bill in addition to undertaking
a number of public hearings. Following the tabling of the Committee's
report in December 1999, the Government carefully considered the
recommendations and, in some instances, undertook further consultation
on certain aspects of the Bill.
The Bill as passed by the House, including
Government and Opposition amendments, implements 22
of the Committee's 38 recommendations.
The following recommendations were
accepted, either partially or in full:
Key amendments
The Government accepted in part the
Committee's recommendation that the Bill should
incorporate a right of first digitisation. This has been done
through a package of amendments that both specifically recognise
the right of first digitisation and address the Committee's concern
regarding the additional risk of infringement to copyright material
that has been converted into digital form. The amendments addressed
the Committee's first digitisation recommendation in a way that
protects legitimate access to information by students, researchers,
schools, universities, libraries, and people with print and intellectual
disabilities.
The Bill has been amended to explicitly recognise,
by way of a legislative note, that the right of first digitisation
is a sub-set of the right of reproduction. The enforcement provisions
have been amended to increase the criminal penalties for an infringement
which involves the first digitisation of copyright material.
The amendments also specifically provide that a court may take
into account the first digitisation of copyright material when
determining the award of additional damages in a civil action
for copyright infringement.
The Government also adopted the Andrews Committee's
recommendation that the definition of "library" be removed
from the Bill. Implementation
of this recommendation removes the revised definition which would
have excluded libraries owned by for-profit businesses from the
library exceptions. The Government has decided to consider further
the impact of a changed definition on the ability of private libraries
to participate in the inter-library loan system and to provide
material to public libraries. This issue will be dealt with as
part of the Government's response to the Copyright
Law Review Committee's Report on the Simplification of the Copyright
Act 1968.
The Government amended the provisions in the Bill
relating to the statutory licences for educational institutions.
As recommended by the Committee, amendments were made to extend
the Part VA statutory licence for educational institutions to
the communication of broadcasts. Other amendments fine-tune the
operation of the Part VB statutory licence for educational institutions
to reproduce and communicate works.
The Opposition moved a number of amendments in response
to the Andrews Committee's recommendations. The Government accepted
an amendment which limits the circumstances in which a preservation
reproduction of an original artistic work may be displayed on
the premises of a library or archives. The Government also accepted
the Opposition's proposals to introduce additional safeguards
into the permitted purposes exemption to the enforcement measures
against the manufacture and commercial dealing in circumvention
devices and services.
The Opposition proposed that the new scheme remunerating
all recognised copyright owners of underlying material included
in retransmitted free-to-air broadcasts should be extended to
include remuneration for directors. The Government rejected this
amendment on the basis that directors are not currently recognised
as the owners of copyright in films. The Government is of the
view that the issue of directors should be more fully considered
in the context of the Government's forthcoming consideration of
the Copyright Law Review Committee's Report on the Simplification
of the Copyright Act 1968.
Other amendments to Bill
The Government also moved amendments resulting from
further consultation on certain issues. Amendments were made
to exclude the retransmission of free-to-air broadcasts via the
Internet from the proposed Part VC statutory licence. This is
in response to concerns that Internet retransmissions will have
an adverse effect on existing program licensing arrangements.
This amendment will not prevent retransmission over the Internet.
However, retransmitters will be required to negotiate on a voluntary
basis with all relevant underlying rights holders when retransmitting
a broadcast via the Internet.
The Government further made amendments to overcome
problems posed by the recent High Court decision in Data Access
Corporation v Powerflex Services Pty Ltd (1999). The amendments
provide, for the purposes of Division 4A of Part III of the Copyright
Act, that data incorporated in, or associated with a computer
program (such as a compression or look-up table) which is essential
to the effective operation of the program, can be reproduced without
infringement. This amendment will ensure that the exceptions
introduced by the Copyright Amendment (Computer Programs) Act
1999 remain of practical use.
It is likely that the Bill will be
considered by the Senate in the Spring sittings which commence
on 14 August and, with various breaks, are scheduled to conclude
on 7 December 2000.
Further detailed information about
the contents of the Digital Agenda Bill as introduced can be found
in Issue 9 of e-news at http://law.gov.au/publications/copyright_enews/issue9.html
. The Bill (as amended) and the Explanatory Memorandum (as amended)
are available on the Parliament House website at http://www.aph.gov.au/legis.htm
. Copies of the Parliamentary debates, including the Attorney-General's
second and third reading speeches can be found at http://www.aph.gov.au/hansard/index.htm
. Copies of the Andrews Committee's report are available at http://www.aph.gov.au/house/committee/laca/digitalagenda/contents.htm
.
Government announces freeing of parallel importation
restrictions
The Government announced on 27 June 2000 that it
will amend the Copyright Act 1968 to allow for parallel
importation of legitimately produced books, periodicals, printed
music, and software products including computer-based games.
When implemented, this decision will remove the legal impediment
imposed by the Copyright Act on Australian importers obtaining
these products and making them available to consumers as soon
as they are released anywhere in the world. They will not be
obliged to wait for the Australian copyright owners to release
them in Australia.
Software products affected by the changes include
popular computer games, video arcade games, and popular applications
for word processing, database management and graphical analysis.
The current anti-piracy measures covering sound recordings,
requiring the importer or seller to prove the legitimacy of the
imported product in any civil cases for infringement, will be
extended to apply to all these parallel imported products.
Early last year, the Australian Competition and Consumer
Commission (ACCC) conducted an analysis of the potential consumer
benefits of the repeal of the importation provisions in the Copyright
Act in relation to parallel importation of books and software
early last year. The report indicated that consumers would indeed
benefit from their removal. The ACCC noted the prospect of improved
choice, removal of price discrimination and speedier access.
The amendments will eliminate the control over imported books
and software which has enabled significant price differentials
over the past decade. The Commission's findings indicated that
the price differentials are sensitive to relative movements in
the Australian currency. Declines in recent times have reduced
the differential but the longer term data suggests that large
differentials have been the norm. In a closed market, there is
no guarantee that the differentials will not rise again in future,
when the Australian dollar appreciates.
The introduction of parallel importation for books,
periodicals and printed music will be implemented 12 months after
the passage of amending legislation. This timeframe aims to assist
the publishing industry in the transition to the new legal regime.
The Government will introduce the relevant amendments as soon
as possible.
A copy of the press release: 'Consumers the winners
from reforms to import laws' is at http://law.gov.au/aghome/agnews/2000newsag/joint5_00.htm
or http://www.dcita.gov.au/nsapi-graphics/?MIval=dca_dispdoc&ID=5084&template=Newsroom
.
"Homestyle" decision handed down
On 15 June 2000 a WTO panel report was handed down
on the EC-US copyright dispute known as the "homestyle case".
This dispute concerned an amendment to the US Copyright Act,
passed in 1998, which exempts approximately 70% of all US restaurants
and bars and 45% of US retail stores from paying royalties for
the use of television and radio broadcasts of music to entertain
their customers.
The WTO panel held that this amendment, known as
the "business exemption", violates the WTO Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The pre-existing exemption for "homestyle" music systems,
as narrowed by the 1998 amendment, was found to be TRIPS consistent.
Australia played an active role in this dispute by
putting forward a third party submission which was aimed at protecting
Australia's trade interest - at stake was the right of Australian
composers and songwriters to receive royalties for the public
performance of broadcasts of their music in the important US market.
The Government also wanted to ensure that trade rules relating
to intellectual property were applied in a balanced and fair way.
The panel report is an important milestone in international
copyright law as it is the first WTO panel to consider substantive
TRIPS provisions relating to copyright. Copies of the report
are available from http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm
.
Canadian Copyright Board official
visits AGD
On 14-15 June, the Intellectual Property
Branch hosted a visit by Mr Mario Bouchard, General Counsel of
the Canadian Copyright Board. As well as discussions with members
of the Branch, Mr Bouchard took part in a round table with representatives
of the Australian Government Solicitor, the Department of Communications,
Information, Technology & the Arts and the Department of Foreign
Affairs and Trade.
Mr Bouchard provided valuable insights
into the Canadian approach to regulating the licensing of copyright
and the role of the Copyright Board. Of particular interest to
those present was a comparative analysis of the roles of the Canadian
Copyright Board and the Australian Copyright Tribunal. Mr Bouchard
had fully familiarised himself with the report of the Copyright
Law Review Committee on the Tribunal, and probed officers about
aspects of the report.
While at the Attorney-General's Department,
Mr Bouchard also discussed the latest Australian developments
in administrative law, in which Mr Bouchard has a strong interest.
In a busy fortnight spent in Melbourne and Sydney, Mr Bouchard
met with prominent intellectual property academics, the Copyright
Tribunal and copyright collecting societies.
Copyright Amendment (Moral Rights) Bill 1999
The Copyright Amendment (Moral Rights)
Bill 1999 is currently awaiting debate in the House Representatives
where it was introduced on 8 December 1999. The Government has
received submissions from a range of interested groups, and has
held discussions with representatives of some of those groups.
The Government hopes to bring on debate on the Bill during the
Spring sittings of the Parliament.
The Bill and the Explanatory Memorandum
are available on the Parliament House website at http://www.aph.gov.au/legis.htm
. The Attorney-General's second reading speech when introducing
the Bill is also available at http://www.aph.gov.au/hansard/index.htm
.
WHO DO I CONTACT IN THE INTELLECTUAL PROPERTY BRANCH?
1. Copyright Amendment (Digital Agenda) Bill 1999
and related matters (eg. retransmission of copyright, Information
Economy matters)
(Contact officer: Carolyn Hough, Senior Legal
Officer, tel: 02 6250 6326; fax 02 6250 5929; email carolyn.hough@ag.gov.au or Simon Cordina, Principal Legal
Officer, tel: 02 6250 6608; fax: 02 62505929; email: simon.cordina@ag.gov.au
2. Copyright Amendment (Computer Programs) Act
1999 and related matters
(Contact officer: Simon Cordina, Principal Legal
Officer, tel: 02 6250 6608; fax: 02 62505929; email: simon.cordina@ag.gov.au
3. Moral rights issues
(Contact officer: Chris Creswell, Consultant, tel.
02 6250 6318, fax 02 6250 5929 - email: chris.creswell@ag.gov.au)
4. Performers' rights issues
(Contact officer: Chris Creswell, Consultant, tel.
02 6250 6318, fax: 02 6250 5929 - email: chris.creswell@ag.gov.au)
5. Competition Review of Intellectual Property
legislation
(For the secretariat contact Kay Collins,
Director IPCR Secretariat, Tel: 02 6250 6875 Fax: 02 6250
5929 Email: ipcr.secretariat@ag.gov.au)
6. Protection of arts and cultural expression
of Indigenous People
(Contact officer: Maureen Grant-Thomson, Senior
Legal Officer, tel. 02 6250 6658, fax: 02 6250 5929 - email: maureen.grant-thomson@ag.gov.au)
7. Copyright Law Review Committee (CLRC)
(Contact officer: James Barker, Principal Legal
Officer, tel. 02 6250 6323, fax: 02 6250 5989 email: james.barker@ag.gov.au)
8. Enforcement issues
(Contact officer: Stephen Fox, Principal Legal
Officer, tel. 02 6250 6613, fax. 02 6250 5929 - email: stephen.fox@ag.gov.au)
9. Copyright Importation issues
(Contact officer: Stephen Fox, Principal Legal
Officer, tel. 02 6250 6613, fax. 02 6250 5929 - email: stephen.fox@ag.gov.au)
10. WTO, bilateral and regional intellectual property
liaison and cooperation including APEC
(Contact officer: Stephen Fox, Principal Legal
Officer, tel. 02 6250 6613, fax. 02 6250 5929 - email: stephen.fox@ag.gov.au)
11. Government use and ownership of copyright
(Contact officer: Chris Creswell, Consultant, tel.
02 6250 6318, fax: 02 6250 5929 - email: chris.creswell@ag.gov.au)
12. Copyright Tribunal
(Contact officer: James Barker, Principal Legal
Officer, tel. 02 6250 6323, fax: 02 6250 5989 - email: james.barker@ag.gov.au)
13. Collecting Societies and
related issues
(Contact officer: Chris Creswell, Consultant, tel.
02 6250 6318, fax: 02 6250 5929 - email: chris.creswell@ag.gov.au)
14. Circuit Layouts Act
(Contact officer: Simon Cordina, Principal Legal
Officer, tel: 02 6250 6608, fax: 02 6250 5929 - email: simon.cordina@ag.gov.au)
15. WIPO Standing Committee on Copyright and Related
Rights and other WIPO matters
(Contact officer: Chris Creswell, Consultant, tel.
02 6250 6318, fax: 02 6250 5929 - email: chris.creswell@ag.gov.au)
If you wish to contact the Intellectual Property
Branch on another matter, please contact: Joan Sheedy, Assistant
Secretary, Intellectual Property Branch, (tel: (02)
6250 6313; fax: (02) 6250 5929; email: joan.sheedy@ag.gov.au
If you wish to contact the Attorney-General's Office,
the Departmental Liaison Officer responsible for copyright matters
is Mr Michael Argy (tel: 02 62777300)
For administrative matters, please contact: Kelli Marchant (tel: 02 6250 6655; Fax: 02 62505929 email: kelli.marchant@ag.gov.au)
All past issues of the AGD e-News on Copyright newsletter
are available online permanently at the AGD e-News on Copyright
website at http://law.gov.au/copyright_enews/pastissues.html.
The Intellectual Property Branch in 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 or access the booklet online at the Attorney-General's
Department website, Window on the Law: http://law.gov.au/publications/copyrightaus99.htm.
The Intellectual Property Branch does not give legal
advice on specific copyright matters to members of the public.
Of course, the Branch does provide Government departments and
agencies with legal advice on copyright law matters.
If you have a specific copyright inquiry please contact
the Australian Copyright Council tel: 02 9318 1788 or visit them
at http://www.copyright.org.au
For information on patents, trade marks and designs
contact IP Australia (formerly the Australian Industrial Property
Organisation) tel: 1300 651 010 or access information at http://www.ipaustralia.gov.au
Please email ip_branch@ag.gov.au to subscribe to this newsletter or if you would like to be removed
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If you have a specific inquiry about the particular
matters raised in this newsletter please contact the person listed
as the contact officer.
Attorney-General's Department. Intellectual Property Branch.
e-News on Copyright June 2000.
© Commonwealth of Australia 2000.