he headline copyright news for July 1998 is that
the two copyright Bills, the Copyright Amendment Bill 1997 and
the Copyright Amendment Bill (No 2) 1997, have been passed by
the Senate and the House of Representatives.
The Copyright Amendment Bill 1997 was passed by the
Senate late on Saturday, 11 July 1998. The Copyright Amendment
Bill (No 2) 1997 was passed in the early hours of Sunday, 12 July
1998. The Senate passed 28 Government amendments to the Copyright
Amendment Bill 1997 and 8 Government amendments to the Copyright
Amendment Bill (No 2) 1997. The Bills, as amended by the Senate,
were both passed by the House of Representatives on Wednesday,
15 July 1998, at a special sitting of the House.
The Bills will become "Acts" when the Governor-General
gives them the Royal Assent. Royal Assent usually occurs 7-10
working days after passage of the legislation.
With the exception of the operative provisions of
the amendments concerning the parallel importation of packaging
and labelling, both the Copyright Amendment Bill 1997 and the
Copyright Amendment Bill (No 2) 1997 will commence on the date
of Royal Assent.
The Copyright Amendment Bill 1997 contained 11 schedules
providing for wide-ranging copyright reforms in a number of areas,
as listed below:
The Government promised to implement long overdue
copyright reform to provide fair and adequate protection of rights
at the 1996 election. The passage of the Copyright Amendment
Bill 1997 and the Copyright Amendment Bill (No 2) 1997, discussed further below, are important first steps in implementing that
agenda.
In addition to the 28 Government amendments to the
Copyright Amendment Bill 1997 that were passed in both Houses,
other amendments to the Bill were circulated by the Opposition
and the Democrats although they were ultimately unsuccessful or
withdrawn.
In October 1997 the Senate Legal and Constitutional
Legislation Committee reported on the Copyright Amendment Bill
1997. As noted in the first AGD e-News on Copyright
(Issue 1, May 1998), the Senate Committee recommended that
the Bill be passed, subject to a number of amendments. Many of
the 28 Government amendments to the Bill passed by Parliament
represent in part the Government's acceptance of the recommendations
of the Senate Committee.
There has been much debate in recent years about the division of rights between employed journalists and their employers. In 1994 the Copyright Law Review Committee inquired into the matter and the majority report recommended that the existing provision should be repealed. Implementation of this recommendation would have put newspaper publishers in the same position as other employers who own the copyright in the works created by their employees (s.35(6) in the Copyright Act).
The journalists' copyright amendments in the Copyright Amendment Bill 1997 amend s.35(4) of the Copyright Act. These amendments will ensure that newspaper proprietors are free to develop new modes of distribution, such as the Internet, for their publications while leaving employed journalists with the rights to reproduce their articles in book form, and to benefit from the photocopying of their articles. These amendments reflect agreements between major publishers and the Media Entertainment and Arts Alliance.
Self-employed or freelance journalists will continue, as currently, to retain all rights to their copyright works.
When originally introduced, the Copyright Amendment Bill 1997 provided newspaper proprietors with a "right of restraint". The right of restraint would have enabled newspaper proprietors to block the photocopying of more than 15% of a newspaper or magazine, despite the fact that employed journalists owned the copyright in photocopying of their works. The right of restraint was criticised by the Senate Legal and Constitutional Legislation Committee in its report on the Bill. The Government accepted the Senate Committee's recommendation to reconsider the right of restraint. As a result the Government moved an amendment to omit the right of restraint which was passed by both Houses of Parliament.
The contact officer for this matter is Catherine Hawkins, Senior Government Lawyer, (tel: 02 6250 6608 or email: catherine.hawkins@ag.gov.au).
The amendments in Schedule 3 of the Copyright Amendment
Bill 1997 will remove copyright control over parallel importation
of packaging and labelling. The amendments will stop the practice
of using copyright in artistic works on packages and labels to
prevent other businesses and individuals from importing and reselling
legitimate products. The Government's position is that consumers
do not buy toys, shoes, fishing reels or any other goods so that
they can have the packaging or labelling. Yet copyright in the
packaging and labelling, including copyright over well known brands
already protected by trade marks law, is being used to control
exclusive distribution of these and many other imported goods.
The Copyright Law Review Committee recommended the
removal of the copyright controls over packaging and labelling
in 1988. The Government's packaging and labelling amendments
to the Copyright Act implement that recommendation.
The change does not affect trade mark law which will
continue to operate, as now, to protect brands and, under some
circumstances, to permit action against parallel importation.
The desired practical outcome of these amendments
is increased competition in respect of branded goods, leading
to benefits for consumers in the form of one or more of improved
service, reduced prices and increased choice.
The Government introduced amendments to delay the
commencement of Schedule 3 in relation to importation of goods
with copyright packaging and labelling for 18 months after the
Bill receives Royal Assent. The 18 month delay will ensure that
businesses legally using this means of controlling their exclusive
distribution arrangements can have sufficient time to adapt their
business operations.
However, the amendments to delay the operative provisions
of Schedule 3 will not affect the amendments regarding parallel
importation of CDs contained in Copyright Amendment Bill (No 2)
1997.
One of the Government amendments to the Bill excludes
the Olympic rings symbol from the effect of the packaging and
labelling amendments. This symbol is specially protected under
the Olympic Insignia Protection Act 1987 which accords
it perpetual copyright and it thereby stands in a unique position
vis-a-vis other copyright material.
The contact officer for this matter is Steve Fox,
Senior Government Lawyer,(tel: 02 6250 6613 or email:
stephen.fox@ag.gov.au).
The original Copyright Amendment Bill 1997 did not deal with the issue of ownership of copyright in commissioned photographs. The minority report of the Senate Legal and Constitutional Legislation Committee recommended that s.35(5) of the Copyright Act be amended to give commercial photographers first ownership of copyright. The Government accepted that change to s.35(5) was desirable for commercial photographers who have been seeking this reform to the law for a number of years. Accordingly, the Government moved an amendment to reform s.35(5) which was passed by both Houses of Parliament.
Currently, the effect of s.35(5) of the Copyright Act is that when a photograph is commissioned, the commissioner is the first owner of copyright, subject to any agreement to the contrary. This is unusual as the author of a work is normally the owner of the copyright rather than the commissioning party.
The amendments in the Copyright Amendment Bill 1997 will transfer copyright ownership to the photographer, except for photographs taken for private or domestic purposes, eg weddings and family portraits. In these instances the commissioner will retain ownership of copyright.
The amendments to s.35(5) will enable commercial photographers to licence future uses of their photographs, which they have sought for a number of years.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email: helen.daniels@ag.gov.au).
The amendments in Schedule 4 of the Copyright Amendment Bill 1997 give effect to recommendations of the Copyright Law Review Committee in its 1990 Report on Conversion Damages. Amendments to the Copyright Act make the availability and extent of the two remedies of conversion damages and the delivery up of infringing goods (detention) subject to the discretion of the court, rather than being an automatic right.
Presently, under the remedies of conversion and detention even where an infringing copy is an insubstantial part of an article, eg, a badge on a soccer ball, or a few pages of a book, but is not severable from it, the whole article must be either delivered to the copyright owner or the value of the goods paid by way of damages. The amendments to the Copyright Act are intended to avoid possible abuse by copyright owners and unfairness to defendants.
The contact officer for this matter is Steve Fox, Senior Government Lawyer, (tel: 02 6250 6613 or email: stephen.fox@ag.gov.au).
Schedule 5 of the Copyright Amendment Bill 1997 amends the Copyright Act to streamline the system for owners of copyright in works and other subject matter to be paid when their materials are copied by Commonwealth, State and Territory governments under s.183 of the Act.
The amendments will vary the operation of ss.183(4) and 183(5) of the Copyright Act to permit payments for the reproduction of copyright materials by a government to be made on the basis of sampling, rather than the present method of full record-keeping, where there is a declared copyright collecting society.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email: helen.daniels@ag.gov.au).
The amendments in Schedule 6 of the Copyright Amendment Bill 1997 introduce more appropriate terminology into provisions in the Copyright Act that refer to people with a print or an intellectual disability.
Currently, the Copyright Act contains a number of provisions in which the terms, "intellectually handicapped persons" and "handicapped readers" are used. These terms are to be replaced to reflect current disability policy so, for example, "handicapped readers" is replaced by "persons with a print disability" and "intellectually handicapped persons" by "persons with an intellectual disability".
The items in Schedule 6 also amend the Copyright Act so as to allow institutions assisting persons with a print disability who copy under the licence in s.135ZP to do so for the same purposes as provided for in the statutory licence for copying for persons with an intellectual disability.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email: helen.daniels@ag.gov.au).
Schedule 7 of the Copyright Amendment Bill 1997 makes a number of minor amendments to the statutory educational copying licences in Parts VA and VB of the Copyright Act to facilitate the effective operation of these licences for the benefit of not only the relevant collecting societies but also the educational institutions and bodies which use the licences. The licence in Part VA is for copying of broadcasts by or for educational institutions, and that under Part VB for copying of works by such institutions and also sound recordings and films by institutions assisting persons with print and intellectual disabilities.
Responding to recommendations made by the Senate Legal and Constitutional Legislation Committee and following consultations with VI$COPY, CAL and educational institutions, the Government decided to move an amendment to s.135ZM of the Copyright Act. The Copyright Amendment Bill 1997 as originally introduced did not include provisions to amend s.135ZM.
Visual artists have sought equitable remuneration for the copying of their works by educational institutions for some years and will benefit from this change.
The amendments to s.135ZM clarify that where an artistic work is copied along with text that accompanies the artistic work, then the remuneration now payable to the author of the text should be shared with the visual artists. This means that visual artists will receive copyright payments to the same extent as other creators. However, copyright payments by educational institutions will not increase because of the new arrangements.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email:helen.daniels@ag.gov.au).
Schedule 8 of the Copyright Amendment Bill 1997 makes a number of minor amendments to the provisions in the Copyright Act concerning the Copyright Tribunal. The amendments are intended to enhance access to the Tribunal by parties and to improve the effective operation of the Tribunal. In particular, provision is made for the appointment of one or more additional Deputy Presidents and to enable the appointment of former judges of a federal court or of a State or Territory Supreme Court.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email:helen.daniels@ag.gov.au).
In December 1994, the Copyright (World Trade Organization Amendments) Act 1994 amended the Copyright Act to enable Australia to comply with its copyright obligations under the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Schedule 9 in the Copyright Amendment Bill 1997 corrects minor errors in those amendments and makes other minor changes to border enforcement provisions of the Copyright Act. The amendments, amongst other things, provide a power to specify a fee for the lodging of a notice of objection and expressly provide authorisation for the Chief Executive Officer of Customs to provide certain information to objectors.
The contact officer for this matter is Steve Fox, Senior Government Lawyer, (tel: 02 6250 6613 or email: stephen.fox@ag.gov.au).
Currently, the definition of "educational institution" in s.10(1) of the Copyright Act determines those non-profit institutions which are able to reproduce copyright works under relevant statutory licences in the Act. There are some institutions which qualify automatically as educational institutions (eg, schools, universities), others which are able to declare themselves under s.10A(4) of the Copyright Act and others which the Attorney-General may declare.
The amendments in Schedule 10 of the Copyright Amendment Bill 1997 will facilitate the process of declarations of institutions by widening the scope for "self-declaration" by institutions. The amendments also widen the range of institutions which can use the statutory licences by removing the requirement of an institution being not for profit and by providing that pre-schools and kindergartens are educational institutions.
The contact officer for this matter is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email: helen.daniels@ag.gov.au).
The amendments in Schedule 11 in the Copyright Amendment Bill 1997 are consequential upon the amendments being made to other areas of the Copyright Act or to correct minor drafting inconsistencies or errors in the Act.
A number of Government amendments to Schedule 11 were passed by the Parliament. One of the Government amendments changed the definition of "transmission" inserted by Schedule 11 to ensure there is no distinction under the educational copying licence in Part VA of the Copyright Act between copying from pay television services and free to air services. The contact officer for this amendment is Helen Daniels, Senior Government Lawyer, (tel: 02 6250 6325 or email: helen.daniels@ag.gov.au).
Most of the minor amendments in Schedule 11 in the Copyright Amendment Bill 1997 were technical amendments to the Bill to update references in the Copyright Act to broadcasting legislation to ensure conformity with the Broadcasting Services Act 1992 (the BS Act) and to omit references to outdated broadcasting legislation. Most of the Government amendments to Schedule 11 of the Copyright Amendment Bill 1997 that were passed by the Parliament were technical amendments to the Bill to ensure that the provisions which updated references in the Copyright Act to the BS Act included references to class licensees under the BS Act. The contact officer for this matter is Catherine Hawkins, Senior Government Lawyer, (tel: 02 6250 6608 or email: catherine.hawkins@ag.gov.au).
Schedule 1 of the Copyright Amendment Bill 1997 as
introduced originally included amendments providing for comprehensive
protection for the moral rights of integrity and attribution of
authors of works and the makers of film.
The Government remains committed to introducing a
workable moral rights regime. It will be a regime that ensures
Australia meets its international obligations and importantly
one that is fair to creators, producers and users of copyright
material.
However, once the Bill was introduced the justification
for comprehensive moral rights protection became obscured by a
debate over a provision to allow upfront waiver for contracted
works and films.
Since the Senate Legal and Constitutional Legislation
Committee released its report in October 1997, where the majority
recommended the extension of waiver at the time of commissioning
a work or film, the Government has held lengthy discussions over
several months with participants in the film and television industry
to find an acceptable compromise on this issue that would satisfy
all interests and maintain certainty and confidence in the industry.
However, such a compromise was not possible by the time the Bill
was debated.
For these reasons, the Government withdrew the moral
rights provisions in Schedule 1 from the Bill. The Government
amendment to do this was passed by the Parliament.
The Government will continue to consult to develop
a consensus on a workable provision on waiver and then resubmit
the moral rights regime as a stand-alone Bill in three months
time or as soon as possible afterwards.
The contact officer for this matter is Helen Daniels,
Senior Government Lawyer, (tel: 02 6250 6325 or email:
helen.daniels@ag.gov.au).
The Copyright Amendment Bill (No 2) 1997 removes
the copyright owner's control over "parallel importation"
of music CDs.
Following referral of the Copyright Amendment Bill
(No 2) 1997 to the Senate Legal and Constitutional Legislation
Committee, the majority of the Senate Committee recommended that
the Bill be passed.
The effect of the removal of the controls on parallel
importation is that CDs made legitimately in other countries,
ie non-pirate CDs, can be imported into Australia without the
consent of the Australian copyright owner. To allay fears that
pirate CDs will flood the Australian market, the Copyright Amendment
Bill (No 2) 1997 includes a range of measures that 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 an infringing copy is
placed on the importer or distributor. The Bill also increases
the maximum monetary penalties for copyright offences. Persons
convicted face fines of over $60 000 per offence and/or 5 years
imprisonment. Corporations can be fined over $300 000 per offence.
The Government, through the Department of Communications
and the Arts, has also decided to allocate $10 million over three
years to an Australian music industry promotion package.
The contact officer for this matter is Steve Fox,
Senior Government Lawyer, (tel: 02 6250 6613 or email:
stephen.fox@ag.gov.au).
For information concerning the music industry promotion
package please contact the Intellectual Property Branch of the
Department of Communications and the Arts, (tel: 02 6271
1633).
Hard copies of the Government amendments to the Bills
will be available for purchase from Government Info Shops (formerly
Ausinfo). Additionally, the amendments will be available online
through Parliament House's BillsNet service on its website.
Sections 43(2), 104(b) and 104(c) of the Copyright
Act 1968 currently allow fair dealing with copyright material
if it is done for the purpose of the giving of professional advice
by a legal practitioner or patent attorney. The references to
patent attorneys were introduced by the Copyright Amendment Act
1980.
The Intellectual Property Laws Amendment Bill 1998
includes amendments to these sections by introducing the new profession
of "trade mark attorney" and updating existing references
to patent attorneys to "registered patent attorneys".
These amendments reflect the Government's decision to introduce
substantial changes to the patent attorney profession with the
aim of ensuring high quality intellectual property services are
available to business at cost effective levels.
The Intellectual Property Laws Amendment Bill 1998
was passed in the House of Representatives on 15 July 1998 and
will commence on Proclamation or 6 months after Royal Assent,
whichever is earlier.
IP Australia is responsible for the Bill and the
contact officer at IP Australia is Dr Vivienne Thom, (tel: 02
6283 2097).
Attorney-General's Department. Intellectual Property Branch.
e-News on Copyright July 1998.
© Commonwealth of Australia 1998.