July 1997
© Commonwealth of Australia 1997
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government Publishing Service. Requests and inquiries concerning reproduction rights should be directed to the Manager, Commonwealth Information Services, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601.
PART 2 - KEY ISSUES FOR INTERESTS
PART 3 - INTERNATIONAL DEVELOPMENTS: NEW WIPO TREATIES
PART 4 - PROPOSED SCHEME FOR TRANSMISSION AND MAKING
AVAILABLE RIGHTS
PART 5 - PROPOSED SCHEME FOR TECHNOLOGICAL
MEASURES AND RIGHTS MANAGEMENT INFORMATION (RMI)
Appendix 1 - Existing rights in the Copyright Act
Appendix 2 - Copyright Convergence Group report
Appendix 3 - Exposure Draft Copyright Amendment Bill 1996
Appendix 4 - Selected recent case law
Appendix 5 - Other developments
The Coalition Government is committed to reform of the Copyright Act 1968 to ensure that the effective protection of the rights of copyright owners in the new communications environment is balanced against the needs of users to have reasonable access to copyright materials.
Developments in technology, particularly in relation to digital technology and the advances in the networking of computers, have posed momentous challenges to copyright.
However, it should be remembered that technological challenges are not new in the history of copyright protection. Major revisions of the most important international copyright convention, the Berne Convention for the Protection of Literary and Artistic Works, have responded to technological developments every 20-25 years since the inception of the Berne Convention in 1886.
The conclusion of the World Intellectual Property Organization (WIPO) Copyright Treaty and Performances and Phonograms Treaty in December 1996 is the latest response by the international copyright community to the impact of new technologies on copyright.
This paper, prepared by the Attorney-General's Department and the Department of Communications and the Arts, is part of a package of three consultation papers seeking community comment on whether Australia should sign the new WIPO treaties. The other two consultation papers, namely, a paper on performers' rights and a paper on general issues concerning Australia's possible signature of the two new WIPO treaties, will be released shortly. The consultation on these new WIPO treaties demonstrates this Government's continuing commitment to improving treaty-making processes in Australia.
The Government invites comments from the community on the legislative scheme
proposed in this paper for a new package of rights - including a new transmission
right, right of making available and enforcement measures - to pave the way
for Australia to sign the new WIPO treaties and reform copyright law in this
digital age.
DARYL WILLIAMS
Attorney-General & Minister for Justice
RICHARD ALSTON
Minister for Communications & the Arts
This discussion paper has been prepared by the Attorney-General's Department and the Department of Communications and the Arts.
The purpose of this paper is to seek comments on the proposed scheme for the introduction of a new package of rights, including a proposed transmission right and right of making available to the public, to improve the protection for copyright creators in the new communications environment.
Submissions and comments on this paper need to be sent by 29 August 1997 to:
Ms Catherine Hawkins
Senior Government Lawyer
Intellectual Property Branch
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600
The Attorney-General's Department will copy all submissions received to the Department of Communications and the Arts.
Copies of this Discussion Paper are available on the Attorney-General's Department web site, Window on the Law, at http://law.gov.au and the web site of the Department of Communications and the Arts, at http://www.dca.gov.au. Copies 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).
In the near future, the Department of Communications and the Arts will organise joint consultations with key affected interests and the Attorney-General's Department on the proposed amendments to the Copyright Act outlined in this paper.
Copies of submissions received will be considered to be public submissions unless confidentiality is specifically requested.
WHY DO WE NEED COPYRIGHT REFORM IN THE DIGITAL AGE?
The issue of how to reform copyright legislation in light of the many developments in new technologies has been the subject of close consideration by governments, copyright owners and users of copyright around the world over the last decade.
Digital technology and the growth of computer networks, particularly, of course, the Internet, have posed many challenges to the protection and enforcement of copyright. These issues are of critical concern to creators and owners of copyright material. New technologies have also raised important issues in relation to ensuring that users of copyright material are able to obtain reasonable access to copyright material in the on-line environment. The Australian Copyright Council, in its recent publication, Copyright and the Internet, thoroughly sets out the many issues facing owners and users of copyright in the on-line environment.
The development of new technologies has meant that there are gaps in the protection afforded by the Copyright Act. Most notably, owners of copyright in sound recordings and broadcasts do not have a "cable" right, ie, a right to transmit copyright material by cable. The existing broadcast right in the Copyright Act is technology-specific and only extends to over-the-air "wireless" broadcasts. In addition to these gaps, the Copyright Act does not provide for copyright in cable television transmissions. Another major gap in existing copyright protection is the fact that owners of copyright in works do not have effective rights to control the making available on-line of their copyright material. This means that when copyright material is being used on-line it is difficult for copyright owners to obtain any redress or remuneration for such on-line use of their creations.
The compelling reasons for copyright reform in the on-line environment are thus clear. This paper proposes changes to copyright legislation to overcome the current gaps in copyright protection, while ensuring that users of copyright material have reasonable access to copyright material.
GOVERNMENT'S COMMITMENT TO MEET ON-LINE CHALLENGES TO COPYRIGHT
The Australian Government recognises the importance of the need to address these issues. The Coalition's election policy statements supported the need for new on-line and transmission rights in the Copyright Act. In the Government's 1996 election policy, Australia Online, the Coalition supported the key recommendation made by the Copyright Convergence Group (CCG) to introduce a broadly-based technology-neutral transmission right in to the Copyright Act. In the Government's 1996 election policy on the arts, For Art's Sake - A Fair Go!, the Coalition noted that "copyright remains the most pressing yet unresolved area of cultural micro-economic reform in this country", particularly in light of developments in new technologies.
Consistently with its election commitments, this paper on copyright reform in the on-line environment is one part of the Government's wide-ranging response to on-line issues. In addition to this copyright paper, other examples of the Government's commitment to addressing on-line issues include its establishment of the Information Policy Advisory Council (IPAC) and the Electronic Commerce Expert Group. The IPAC was established by the Minister for Communications and the Arts to advise the Government on a range of on-line issues. The Electronic Commerce Expert Group, chaired by the Attorney-General's Department, has been asked to report to the Government on possible legislation to support regulation of electronic commerce transactions.
PURPOSE OF THIS PAPER
The purpose of this paper is twofold. The first purpose of the paper is to seek the views of the community on the legislative scheme proposed in this paper to reform copyright law to respond to the challenges posed by new technologies and the on-line environment.
The second purpose of this paper is to seek comments from the community in relation to whether Australia should implement important obligations in, and thus sign, the new World Intellectual Property Organisation (WIPO) treaties, namely, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The proposed legislative scheme has been developed in accordance with the new international obligations in the new WIPO treaties concerning the transmission right and related issues.
OUTLINE OF THE DISCUSSION PAPER
Part 1 of this paper sets out a summary of the paper.
Part 2 of this paper is entitled Key issues for interests. This list of key issues for interests to comment on has been included in this paper in response to requests from interests for the Government to clearly identify what it considers to be the central issues under examination when the Government consults with the community on copyright law reform issues.
Part 3 of this paper sets out the major international developments in relation to the consideration of a new transmission right. The major development is, of course, the conclusion of the two new World Intellectual Property Organisation (WIPO) treaties, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
Parts 4 and 5 of this paper outline the proposed scheme for the introduction of the new package of standards to reform copyright law in this digital age. The scheme of new rights proposed in this paper would comply with the "digital agenda" obligations in the new WCT and the WPPT and therefore enable Australia to sign up to the new WIPO treaties in this regard.
Part 4 outlines the proposals for introducing a new transmission right and a new right of making available to the public into the Copyright Act.
Part 5 outlines the proposals for introducing new enforcement measures into the Copyright Act including technological measures provisions and provisions in relation to rights management information.
The Appendices provide details about the background to consideration of the introduction of a proposed new transmission right into the Copyright Act prior to the conclusion of the two new WIPO treaties. The Appendices summarise the existing transmission-type provisions in the Copyright Act. They also outline the key transmission right recommendations in the Copyright Convergence Group (CCG) report, Highways to Change, and the proposed transmission right provisions in the Exposure Draft Copyright Amendment Bill 1996, which was released by the previous Government but never introduced into Parliament. Finally, the Appendices discuss selected recent case law and briefly consider other relevant developments, including domestic reports and reports from other countries.
COMMENT INVITED FROM ALL INTERESTS
Many policy issues and technical legal issues are raised by the scheme proposed in this paper to reform the Copyright Act to introduce new rights and enforcement measures to meet the challenges of the digital age.
As noted above, Part 2 of this paper sets out a list of key issues for interests. Of course, the issues raised in Key issues for interests are not exhaustive - the list is simply a tool to assist interests to respond to the issues raised in this paper.
All affected interests are encouraged to provide their views on the proposed legislative scheme for the introduction of a new transmission right, a right of making available, and related enforcement measures. These views will be considered in the further development of the Government's policy on copyright reform and the digital agenda.
PURPOSE OF THIS PAPER
1.1 The purpose of this paper is twofold. First this paper seeks the views of the community on the legislative scheme proposed in this paper to reform copyright law to respond to the challenges posed by new technologies and the on-line environment. Secondly, this paper seeks comments from the community in relation to whether Australia should implement the relevant obligations in the new World Intellectual Property Organisation (WIPO) treaties, namely, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The proposed legislative scheme has been developed in accordance with the new international obligations in the new WIPO treaties concerning the transmission right and related issues.
PART 2 - KEY ISSUES FOR INTERESTS
1.2 Many policy issues and technical legal issues are raised by the scheme proposed in this paper to reform the Copyright Act to introduce new rights and enforcement measures to meet the challenges of the digital age.
1.3 Part 2 of this paper sets out a list of key issues for interests. This list of key issues for interests to comment on has been included in this paper in response to requests from interests for the Government to clearly identify what it considers to be the central issues under examination when the Government consults with the community on copyright law reform issues. Of course, the issues raised in the Key issues for interests are not exhaustive - the list is simply a tool to assist interests to respond to the issues raised in this paper and does not preclude interests from raising other issues.
1.4 All affected interests are encouraged to provide their views on the proposed legislative scheme for the introduction of a new transmission right, a right of making available, and related enforcement measures. These views will be considered in the further development of the Government's policy on copyright reform and the digital agenda.
PART 3 - NEW DEVELOPMENTS
New WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty
1.5 In December 1996, two new World Intellectual Property Organisation (WIPO) treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were concluded. The new WIPO treaties mark an important advance in improving international copyright standards to meet the challenges posed in this digital age.
1.6 In summary, the new package of digital standards in the WCT and the WPPT includes:
1.7 Parts 4 and 5 of this paper propose a range of amendments to the Copyright Act to implement these new international copyright standards. The aim of the proposed amendments to the Act that are outlined in Parts 4 and 5 is to reform copyright law in Australia to meet the challenges posed by the on-line environment, and also to enable Australia to sign these new WIPO treaties.
PART 4 - PROPOSED NEW TRANSMISSION RIGHT AND MAKING AVAILABLE RIGHT
1.8 Parts 4 and 5 of this paper outline the proposed scheme for the introduction of a new package of standards to reform copyright law in this digital age. The scheme of new rights proposed in this paper would comply with the "digital agenda" obligations in the new WCT and the WPPT and therefore enable Australia to sign the new WIPO treaties in this regard.
1.9 Part 4 outlines the proposals for introducing a new transmission right and right of making available to the public.
Proposed new exclusive transmission right: works, films and broadcasts
1.10 The paper proposes that the Copyright Act should be amended to include a new broadly-based technology-neutral transmission right. The new transmission right would replace the existing diffusion and wireless broadcasting rights in the Copyright Act. The new transmission right would also extend to cover broadcasts by wired means, consistently with the definition of "broadcast" in broadcasting legislation. The proposed transmission right would apply to transmissions to the public in the traditional non-interactive sense of "broadcasting", that is, the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission.
1.11 The proposed new right of transmission for owners of copyright in works, films and broadcasts would be an exclusive right as are the broadcasting and cable diffusion rights for those copyright materials under the Act now.
Proposed new exclusive right of making available: works, films, fixed performances and sound recordings
1.12 The paper also proposes that the Copyright Act should be amended to include a new right of making available to the public. This new right is designed to cover certain uses of copyright material in interactive on-demand on-line services.
1.13 The proposed new right of making available on-line for owners of copyright in works, films and sound recordings would be an exclusive right. The right proposed for performers will be discussed in the forthcoming issues paper on proposed new performers' rights.
Right of remuneration for broadcasting of fixed performances and sound recordings
1.14 It is proposed that producers of sound recordings should be able to claim remuneration for the broadcasting of sound recordings (in the expanded sense of "broadcasting" as proposed above). The right proposed for performers will be discussed in the forthcoming issues paper on proposed new performers' rights.
No statutory definition of "to the public"
1.15 On the basis of the strong body of case law on the interpretation of the expression "to the public", this paper does not consider there to be a need to provide for a comprehensive definition of "to the public", which is not defined at all in the Act, to give statutory force to the courts' approach to the term as meaning "the copyright owner's public".
Protection of transnational transmissions
1.16 The proposed scheme in this paper recommends extending broadcasts (including both over-the-air broadcasts and cable transmissions) in which copyright subsists to transnational transmissions.
Exceptions
Fair dealing exceptions
1.17 The important issue of the exceptions to the new rights in the proposed scheme is also discussed in this paper. The paper invites comment on whether the fair dealing provisions in the Copyright Act should apply to the new rights proposed in this paper.
Proposed new exception for certain temporary reproductions
1.18 The paper proposes that the Copyright Act be amended to provide for exceptions in relation to temporary and incidental copies made in the course of the technical process of transmitting and on-line "browsing" of copyright material.
Exceptions for libraries and archives
1.19 The paper queries whether the Copyright Act should be amended to provide for certain exceptions for libraries and archives in relation to the exercise of the proposed new transmission and making available rights.
Liability of carriers, carriage service providers (including ISPs) and content service providers
1.20 The issue of whether carriers, carriage service providers (including Internet service providers - ISPs) and content service providers should be exempted from liability for infringement of the new rights proposed in this paper is also discussed in this paper. The scheme makes no specific proposals in relation to the liability of carriers, carriage service providers and content service providers, which would therefore fall to be determined according to existing principles in the Act about authorisation of copyright infringement.
1.21 However, as with all the issues raised in this paper, comment is invited on this proposed approach and, in particular, the paper invites comment on whether the Copyright Act should be amended to provide that ISPs would be exempt from copyright liability in any circumstances in which they provide notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act.
Retransmission and ceilings on amounts payable for broadcasting sound recordings
1.22 No proposals are made in relation to either cable retransmission of free-to-air broadcasts or the ceilings in s.152 on the amounts payable for broadcasting sound recordings as both these issues are currently under separate consideration by the Government.
PART 5 - PROPOSED SCHEME FOR NEW TECHNOLOGICAL MEASURES AND RIGHTS MANAGEMENT INFORMATION PROVISIONS
1.23 Part 5 outlines the proposals for introducing new enforcement measures into the Copyright Act. These enforcement provisions would outlaw the unauthorised circumvention of technological copyright protection measures, such as computer program locks, and outlaw abuse of rights management information electronically attached to copyright material.
APPENDICES
Appendix 1 - Existing rights in the Copyright Act
1.24 Currently, the Copyright Act provides limited protection for works and other copyright subject-matter when used in transmissions to the public, ie, when used in over-the-air broadcasts and transmissions to subscribers to a diffusion service. These limited exclusive transmission-type rights do not extend to all categories of copyright material. Most notably, owners of copyright in sound recordings and broadcasts do not have a cable diffusion right.
1.25 In the same way that the existing exclusive transmission rights are limited in the Copyright Act, the Act does not afford comprehensive copyright protection to all transmissions. That is, copyright only subsists in wireless broadcasts. Currently, for example, copyright does not subsist in cable television transmissions.
Appendix 2 - Copyright Convergence Group (CCG) report
1.26 In August 1994, the Copyright Convergence Group (CCG) released its report, Highways to Change: Copyright in the New Communications Environment. The cornerstone of the CCG report was the recommendation to introduce into the Copyright Act a broadly-based technology-neutral transmission right to authorise transmissions to the public. The CCG recommended that the new transmission right should replace the diffusion right and encompass an expanded broadcast right. The CCG recommended that the broadcast right should be expanded to include wire and wireless broadcasts, consistently with the definition of "broadcast" in broadcasting legislation.
1.27 In addition to the major transmission right recommendation, the CCG made a number of other recommendations. The CCG report recommended that copyright should subsist in all broadcasts made lawfully in Australia and also made recommendations in relation to the protection of transnational transmissions. The CCG report recommended that the operation of s.199(4) allowing free cable retransmission of wireless broadcasts should be limited to "retransmission by genuine self-help broadcasters only". In light of the inadequate legislation to address the problems of "signal theft", the CCG recommended that two new offences in relation to the unauthorised reception of subscription transmissions should be enacted.
1.28 The CCG report also made recommendations in relation to other issues including incidental cable services where persons reside or sleep, ephemeral copying, the statutory licence for the use of sound recordings in broadcasts, and s.212 of the Broadcasting Services Act 1992. Currently, s.212 of the Broadcasting Services Act 1992 allows (cable and free-to-air) retransmission of national, commercial and community broadcasting services, although retransmission outside of the licence area of the primary broadcast is only allowed with the approval of the Australian Broadcasting Authority. Unless the person involved in the authorised retransmission is a licensee, s.212 also provides immunity from legal action in relation to the content of the material broadcast (eg, action for copyright infringement, defamation or contempt of court).
1.29 In its 1996 election policy, Australia Online, the Coalition supported the key recommendation made by the Copyright Convergence Group (CCG).
Appendix 3 - Exposure Draft Copyright Amendment Bill 1996
1.30 In February 1996, the previous Government released an Exposure Draft Copyright Amendment Bill 1996 which included proposed amendments to the Copyright Act in relation to the electronic transmission of works and other subject matter. The then Government's decision to amend the Act flowed from the recommendations made in the CCG report. The proposed new transmission right would have applied to current copyright owners including broadcasters, producers of films and sound recordings and the owners of copyright in literary, dramatic, musical and artistic works.
1.31 The Exposure Draft provided for a new broadly-based, technology-neutral right of transmission to the public. This right would have fundamentally changed the existing "communication rights" that are currently limited to broadcasting (by wireless means) and transmission to subscribers to a diffusion service (the cable right). An essential element was that the reception of the transmission required the use of receiving apparatus.
1.32 The term "to the public" was defined in the Exposure Draft to mean "the public within or outside Australia". Also, transmissions made for a fee were deemed to be made to the public in the Exposure Draft.
1.33 The Exposure Draft proposed amending the Copyright Act to provide that copyright should subsist in all broadcasts "lawfully made in Australia" and that the owner of copyright in such broadcasts should be the person who made the broadcast, ie, the person responsible for determining the content of the broadcast.
Appendix 4 - Selected recent case law
1.34 The Full Federal Court decision on appeal in the APRA v Telstra case is a significant one for its examination of the case law on the interpretation of the phrase "to the public" and the conclusions it reached. This issue is discussed in Part 4 in the context of whether it is necessary to define "to the public" in the Copyright Act or leave the phrase to judicial interpretation.
Appendix 5 - Other developments
1.35 In addition to the CCG report, several other papers have been released in Australia in relation to the consideration of copyright issues in the on-line environment. The CLRC report Computer Software Protection, released in 1995, made recommendations and comments in relation to the liability of database providers, exceptions for libraries, screen displays and program locks. The CLRC has released several issues papers this year as part of its simplification reference. Several of these papers, particularly Simplification of the Fair Dealing Provisions in the Copyright Act 1968 and Copying by Libraries and Archives under the Copyright Act 1968, raise issues for consideration in relation to copyright in the on-line environment.
1.36 Other countries, notably the USA and the European Commission, have also released major reports on the need to reform copyright law in the face of the developments in technology and several jurisdictions, including Japan and Hong Kong, have introduced legislation implementing the international copyright standards in the new WIPO treaties.
PART 2 - KEY ISSUES FOR INTERESTS
2.1 Many policy issues and technical legal issues are raised by the scheme proposed in this paper to reform the Copyright Act to introduce new rights and enforcement measures to meet the challenges of the digital age.
2.2 This part sets out a list of key issues for interests. This list of key issues for interests to comment on has been included in this paper in response to requests from interests for the Government to clearly identify what it considers to be the central issues under examination when the Government consults with the community on copyright law reform issues. Of course, the issues raised are not exhaustive - the list is simply a tool to assist interests to respond to the issues raised in this paper, and does not preclude the raising of other questions by interests.
2.3 All affected interests are encouraged to provide views on the proposals in this paper for the introduction of a new transmission right, right of making available and related enforcement measures. These views will be considered in the development of the Government's policy on copyright reform and the digital agenda.
ISSUES CONCERNING THE NATURE OF THE NEW "DIGITAL AGENDA" RIGHTS
2.4 A new right of transmission to the public and a new right of making available to the public are proposed to be established in the Copyright Act as separate rights.
2.5 A definition of "broadcast" encompassing both wireless and cable transmissions is proposed to be retained in the Copyright Act, although the broadly-based transmission right replaces and encompasses the existing broadcasting and cable diffusion rights.
2.6 Should the Copyright Act be amended to provide for a definition of "to the public"? Alternatively, as proposed in this paper, should the meaning of "to the public" be left to judicial interpretation?
2.7 If such a definition should be included in the Copyright Act, should it reflect the judicial interpretation of the expression "to the public" as meaning to "the copyright owner's public"?
ISSUES CONCERNING EXCEPTIONS
2.8 Should the Copyright Act be amended to exclude from the right of reproduction certain temporary and incidental copies made in the course of the technical process of transmission? What should be the scope of such an exception for temporary copies? In particular, what kinds of safeguards could be included in such an exception to protect the rights of copyright owners?
2.9 Should the fair dealing provisions in the Copyright Act apply to the proposed new transmission right and right of making available to the public?
2.10 Should the exceptions provisions for libraries and educational institutions apply to exempt them, in some circumstances, from liability for the exercise of the proposed new transmission right and right of making available to the public?
ISSUES CONCERNING LIABILITY OF ISPS AND OTHERS
2.11 Should the Copyright Act be amended to exempt Internet service providers (ISPs) and others from liability for the exercise of the proposed new transmission right and right of making available?
2.12 In particular, should the Copyright Act be amended to provide that ISPs would be exempt from copyright liability in any circumstances in which they provide notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act?
2.13 Should the Copyright Act be amended to provide that the person responsible for the content of the copyright material included in a transmission should be liable for the exercise of the proposed new transmission right?
2.14 Should the Copyright Act be amended to provide that the person responsible for the content of the copyright material that is made available on-line to the public should be liable for the exercise of the proposed new right of making available?
ISSUES CONCERNING THE TECHNOLOGICAL MEASURES PROPOSAL
2.15 The technological measures provisions proposed in this paper are designed to ensure, amongst other things, that the operation of existing fair dealing and other exceptions provisions is not reduced.
2.16 Should owners of copyright material who use technological copyright protection measures be compelled to give access to, or be denied the power to prevent access by, users of copyright material "locked up" by technological measures if users of copyright material are to be able to use that copyright material pursuant to the fair dealing and other exceptions in the Copyright Act?
ISSUES CONCERNING THE RIGHTS MANAGEMENT INFORMATION PROPOSAL
2.17 Provisions relating to the outlawing of the removal of electronic rights management information (RMI) are proposed.
2.18 Will these provisions unreasonably restrict some uses of new technology, eg, for broadcasting, which have the incidental effect of stripping some RMI from copyright material in the course of its use in an activity authorised by the copyright owner or by law?
Part 3 - International developments: new WIPO treaties
3.1 Part 3 of this paper discusses the international developments in relation to the consideration of copyright reform in the on-line environment.
3.2 In December 1996, there was a major development in international copyright. Two new intellectual property treaties were agreed to by delegates from over 100 countries at a three week World Intellectual Property Organization (WIPO) Diplomatic Conference.
3.3 The two new treaties are the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
3.4 The WCT deals with the rights of authors of literary and artistic works (including films and videos). Thus it deals with the "traditional" subject matter of copyright. On the other hand, the WPPT deals with the rights of performers and producers of sound recordings, known as "neighbouring rights". The fact that these two treaties are separate reflects the strict division in the laws of continental countries between "copyright" and "neighbouring rights".
3.5 This paper (in conjunction with the other two forthcoming issues papers referred to in the Foreword, ie, the general paper on signature of the WIPO treaties and the paper on performers' rights) is a key part of the Government's consultation process with affected interests to decide whether Australia should accede to the two new WIPO treaties.
3.6 The centrepiece of these two new treaties is the provision for improved protection for copyright material when made available to the public on computer networks, including the Internet. These new standards are discussed in this part.
BACKGROUND TO THE NEGOTIATIONS
3.7 Starting in the late 1980s, a combination of developments highlighted the need for WIPO to initiate a revision of international copyright standards. These developments included the time lag of 25 years since the last substantive revision of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in Stockholm in 1967 and the nature of the technological developments that had occurred since then. There had also been the arrival on the scene of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) bringing with it a new institutional player in international copyright, the TRIPS Council. At the same time the European Community (EC) adopted a number of Directives introducing new intellectual property standards.
3.8 The combination of these developments, but particularly the major advances in technological developments such as the Internet, led to the establishment of the WIPO Committee of Experts on a Possible Protocol to the Berne Convention in 1991 and the Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms in 1992.
3.9 The work of the Committees of Experts, in which Australia actively participated, led to the preparation of the Basic Proposal for the Substantive Provisions of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works to be considered by the Diplomatic Conference and the Basic Proposal for the Substantial Provisions of the Treaty for the Protection of the Rights of Performers and Producers of Phonograms to be considered by the Diplomatic Conference. These "Basic Proposals", which were essentially draft treaties, were prepared by the Chairman of the two Committees of Experts, Mr Jukka Liedes. Consideration of the Basic Proposals led to the adoption of the new WCT and the new WPPT at the Diplomatic Conference in December 1996.
RELATIONSHIP OF THE NEW WIPO TREATIES TO EXISTING TREATIES
3.10 The combined effect of the new WIPO treaties is to update the Berne Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention) and the TRIPS Agreement, although the two new WIPO treaties have different relationships with existing international copyright conventions.
3.11 The WCT supplements, and applies to the same copyright material as, the Berne Convention. The WCT is a protocol to the Berne Convention as between Berne Union members that ratify it and a free-standing treaty as between non-Berne Union members. The WCT uses the TRIPS technique of requiring Contracting Parties that are not already members of the Berne Convention to comply with the substantive provisions of the Berne Convention (ie, Arts.1-21 and the Appendix) but does not require Contracting Parties to become members of Berne.
3.12 In contrast, the WPPT is a free-standing treaty and does not supplement the standards in the Rome Convention in the same way as the WCT supplements the standards in the Berne Convention. Although the WPPT does re-enact and expand standards in the Rome Convention, it does not completely overlap that Convention. Unlike the Rome Convention, the WPPT does not afford protection to broadcasting organisations and does not afford rights to performers in audiovisual productions. Accordingly, the Rome Convention will continue to be the key international treaty in this regard.
ENTRY INTO FORCE OF THE TREATIES
3.13 The treaties have no immediate effect because they do not enter into force until three months after 30 ratifications of or accessions to each treaty have been deposited with WIPO. As at 3 July 1997, WIPO had received 26 signatures and one ratification of the WCT and 26 signatures of the WPPT. Of particular interest is the fact that Indonesia is the first country to have deposited an instrument of ratification of the WCT with WIPO and will be one of the foundation members of that treaty when it enters into force. This is worthy of note as Indonesia had not been a member of the key international copyright convention, the Berne Convention, prior to ratification of the WCT.
THE "DIGITAL AGENDA" IN THE NEW WIPO TREATIES
3.14 The major achievement of the new WIPO treaties is to bring international copyright standards into the digital age.
3.15 The new package of digital standards in the WIPO treaties includes:
Communication to the public right in the WCT
3.16 The Berne Convention already provides for a range of rights of communication to the public. However, the glaring gap in international standards was that the suite of communication to the public rights in Berne did not apply to the cable transmission of text and images. This gap is filled by the extension, in Art.8 in the WCT, of the right of communication to the public to all wired and wireless communications to the public.
Existing communication to the public rights in Berne Convention
3.17 The extended communication to the public right in the WCT provides that it is without prejudice to the existing communication to the public rights in Berne. These existing communication to the public rights in Berne are the right to authorise:
3.18 As noted above, the communication to the public right in the WCT goes beyond these existing communication to the public rights and extends to the transmission of text and images of, respectively, literary and artistic works. This is a major advance. As noted in the Basic Proposal, literary works, including computer programs, are one of the main categories of material transmitted over networks.
Right of making available in the WCT
3.19 In addition to extending the existing Berne communication to the public rights, as noted above, the communication to the public right in Art.8 of the WCT also includes a new right of making available to the public. This part of the right provides for:
the making available to the public [by wire or wireless means] of ... works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
3.20 This new standard is designed to extend copyright protection to on-demand, interactive services on the Internet and other public access networks. For example, the connecting of a server containing a copy of an article to the Internet, ie, a publicly accessible network, is the kind of action that the new right of making available is designed to cover.
3.21 Even if a person merely linked an article to a part of the Internet which was accessible to the public but was not actually accessed by anyone and no member of the public downloaded a copy of the copyright material thus made available on the Internet, the right of making available would still be exercised.
Liability for the exercise of the communication to the public right
3.22 There was considerable concern expressed in the lead-up to the Diplomatic Conference and during the Conference by the providers of telecommunications infrastructure and Internet service providers (ISPs) about their potential liability for the exercise of the new communication to the public right. Telecommunications companies sought express exemption from liability on the basis that it is impossible for them to know of or prevent users of their networks from making infringing copyright transmissions on their networks. Telecommunications companies and ISPs argued that they should be no more liable for copyright infringement on their networks than they are for defamation published on their networks.
3.23 In contrast, copyright owners opposed a broad exception for both telecommunications companies and ISPs on the basis that copyright owners foresaw that they would wish to be able to pursue ISPs for copyright infringement on the Internet.
3.24 A number of "Agreed Statements" were adopted by the Diplomatic Conference in relation to the two new WIPO treaties. These statements included a statement on the liability of telecommunications carriers in relation to the extended communication to the public right in Art.8 of the WCT. The Agreed Statement in relation to Art.8 is as follows:
It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.
3.25 The breadth of this Agreed Statement seems, for example, to permit Australia in implementing the new treaties to exclude Telstra and Optus from liability for unauthorised transmissions of copyright material on their networks in cases in which the provision of the "physical facilities" is all that they provide. However, the Agreed Statement does not provide a blanket exclusion from all liability for carriers or carriage service providers. For example, if a company is engaged in the provision of Internet services, it may also be liable for unauthorised transmissions in the same way as other ISPs, are according to the relevant provisions in the implementing legislation in the relevant jurisdiction.
Broadcasting right in the WCT
3.26 The Berne Convention provides that Contracting Parties may reduce the exclusive right to broadcast works and films and retransmit broadcasts to a right to remuneration (Art.11bis(2)). The preparatory documents for the Diplomatic Conference, ie, the Basic Proposal, included a proposal to phase out the provision for compulsory broadcasting licences in Art.11bis(2) in the Berne Convention. However, this proposal failed at the Conference, leaving the broadcasting and retransmission rights in Berne as less than exclusive rights.
Communication to the public and broadcasting in the WPPT
3.27 The right of communication to the public and the right of making available are also provided for in the WPPT. However, whereas the communication to the public right is an exclusive right in the WCT, in the WPPT the communication to the public right (and the broadcasting right) are limited to a right to equitable remuneration (Art.15) and the making available right is a separate exclusive right (Arts.10 and 14).
3.28 The right to remuneration for broadcasting and communication to the public in the WPPT is consistent with the approach taken to the secondary uses of sound recordings in the Rome Convention. In the Rome Convention, Art.12 provides for the payment of a "single equitable remuneration" to producers of sound recordings or performers for the broadcasting or communication to the public of their sound recordings. However, Art.16(1)(a) in the Rome Convention provides that Contracting Parties may make a reservation to this right in Art.12.
3.29 The WPPT also provides that Contracting Parties may make a reservation (Art.15(3)) to the right to remuneration for communication to the public and broadcasting in the WPPT.
3.30 Although the right to remuneration for broadcasting and communication to the public and the provisions for Contracting Parties to make a reservation to it in the WPPT are consistent with the approach in the Rome Convention, the wording of Art.15 in the WPPT is clearer than the comparable provision (Art.12) in the Rome Convention. Article 15 of the WPPT provides that:
Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.
Right of making sound recordings available in the WPPT
3.31 The WPPT provides that performers (Art.10) and producers of sound recordings (Art.14) both have the making available right. The wording of the right in these provisions is similar to the wording of the making available part of the communication to the public right in Art.8 of the WCT. Article 10 of the WPPT provides that:
Performers shall enjoy the exclusive right of authorising the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.
3.32 This is a major advance on the level of rights for performers in their performances fixed in sound recordings and for producers of sound recordings. The right of making available in the WPPT gives performers and producers of sound recordings the right to control the making available of their sound recordings on on-line public access networks, such as the Internet.
Definitions in the WPPT
3.33 The definitions in the WPPT of the terms "phonogram", "fixation", "broadcasting" and "communication to the public" are worded in such a way as to ensure that these terms apply to digital fixations and transmissions of sounds. For example, Art.2(b) in the WPPT defines "phonogram" as "the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work". "Fixation" is defined in Art.2(c) of the WPPT to mean "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device".
3.34 The definition of "broadcasting" in Art.2(f), among other things, provides that "transmission of encrypted signals is 'broadcasting' where the means for decrypting are provided to the public by the broadcasting organisation or with its consent". The extension of the definition of "broadcasts" is critical as encryption tools are expected to be increasingly used by copyright owners to protect their rights in broadcasts.
Reproduction right
3.35 The Basic Proposal considered by the Diplomatic Conference included a provision in relation to the scope of the reproduction right. This proposal was a particularly contentious and highly technical issue at the Conference and was not resolved at the Conference.
3.36 The scope of the right of reproduction is an important issue to be considered in this paper. In the course of digital transmissions, countless temporary or incidental reproductions are made of the material being transmitted. The intersection of the reproduction right in the Berne Convention with the new communication to the public and making available rights in the new treaties is an important consideration for the implementation of these new rights. Accordingly, despite the fact that the reproduction right proposals were ultimately unsuccessful at the Conference, it is of assistance to canvass the debate on the failed proposal as it raises a number of policy issues for consideration in the context of the implementation of a new transmission right.
3.37 The Berne Convention provides that authors of works have the exclusive right to authorise the reproduction of their works "in any manner of form" (Art.9). Article 7(1) in the Basic Proposal for the Conference provided that the scope of the right of reproduction included "direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form". If adopted, this article would have meant, for example, that temporary copies made in the random access memory (RAM) of a computer linked to the Internet would come within the realm of a copyright owner's exclusive reproduction right.
3.38 The Basic Proposal (Art.7(2)) provided that Contracting Parties could make exceptions to this right of reproduction in relation to temporary or incidental reproductions made in the course of a technological process. Article 7(2) in the Basic Proposal provided that:
Subject to the provisions of Article 9(2) of the Berne Convention, it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of the use of the work that is authorised by the author or permitted by law.
3.39 Some countries supported the inclusion of Arts.7(1) and (2) in the Basic Proposal without amendment in the WCT. However, many other delegations opposed this provision for a range of reasons. There was concern that the extension of the right of reproduction to control the myriad of temporary and incidental copies made in the course of electronic transmissions could increase copyright owners' rights too much at the expense of the effective use and continuing growth of the new communications environment, including, particularly, the Internet. The providers of telecommunications infrastructure were also concerned about the impact of the extension of the reproduction right to all ephemeral copies on their capacity to continue normal existing operations.
3.40 Despite extensive debate on Art.7 in the Basic Proposal, there was no agreement at the Diplomatic Conference on whether the proposal relating to the scope of the right of reproduction amounted to a clarification of the existing reproduction right in Berne or an extension of it. Ultimately, the Conference adopted by a majority the following Agreed Statement on the scope of the reproduction right:
The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.
3.41 However, it should be noted that this statement does not assist countries in determining the scope of the reproduction right as it does not explicitly clarify the critical issue of whether temporary reproductions are caught by the reproduction right.
3.42 The Agreed Statement on the reproduction right in the Berne Convention has a different status in international law to all the other statements adopted at the Diplomatic Conference. All the other Agreed Statements were agreed to by consensus. However, the statement on the reproduction right was put to a vote and was not approved unanimously. Accordingly, it is of less persuasive force as an interpretive statement than if it had been adopted unanimously or by consensus.
"Browsing" on computer networks
3.43 There was also debate at the Diplomatic Conference about whether "browsing" on computer networks could amount to the exercise by the browser of the right of reproduction. This issues is discussed in more detail under the heading "browsing" in Part 4.
Electronic publication
3.44 The Basic Proposal for the Diplomatic Conference included a provision that was designed to clarify the place of publication in circumstances in which copyright material is published on-line. Article 3(1) in the Basic Proposal provided that:
When literary or artistic works are made available to the public by wire or wireless means in such a way that a member of the public may access these works from a place and at a time individually chosen by them, so that copies of these works are available, Contracting Parties shall, under the conditions specified in Article 3(3) of the Berne Convention, consider such works to be published works.
3.45 This proposal was dropped from the agenda of the Conference as there was concern that it was inconsistent with Art.3(3) in the Berne Convention which provides that "communication by wire or the broadcasting of literary or artistic works ... shall not constitute publication".
3.46 The WIPO Guide to the Berne Convention notes that the reason that Art.3(3) provides that certain acts do not constitute publication is that these acts, including communication to the public, "produce only a fleeting impression of the work, whereas publication involves the distribution of material things (books, discs, films etc)" (WIPO Guide, p.28). The WIPO Guide goes on to note that:
For a work to be published there must exist something tangible embodying it, as is clear from the mention, in this paragraph [ie, Art.3(3) in Berne], of the means of manufacture of the copies, and these tangible things must, in principle, be something one can hold in one's hand. (WIPO Guide, p.28)
3.47 The Conference had difficulty reconciling the fact that Art.3(3) in the Berne Convention excludes communication by wire from the acts that constitute publication with the attempt in the Basic Proposal to clarify the place of on-line publication of a work. These concerns might have been overcome if the new right of making available had been provided for as a separate right in the WCT in the same way as it is in the WPPT. It seems that because the new making available right is part of the extended communication to the public right in the WCT, it was difficult to reconcile the failed attempt in the Basic Proposal to provide for the place of on-line publication of a work with the existing provision in the Berne Convention that provides for the definition of publication which, of course, predated the advent of on-line interactive services, to which the new making available right applies.
New enforcement standards
3.48 The enforcement of copyright in the digital environment is a major concern for copyright owners. It is now easy to transmit vast amounts of information all over the world on the Internet, including copyright material, and make endless perfect copies of that material. Technological advances continue to make it easier and quicker to transmit and copy data.
3.49 In response to these problems with the enforcement of rights in "cyberspace", the provisions in the new WIPO treaties on the technological measures and rights management information supplement the extended right of communication to the public and the right of making available to the public, as well as existing rights such as the reproduction right, by providing new remedies for the enforcement of the copyright.
Technological measures
3.50 The treaties provide for a general requirement to outlaw devices and activities designed to circumvent "technological" copyright protection. The general obligation to provide for sanctions against the abuse of technological measures in Art.11 of the WCT and Art.18 in the WPPT is as follows:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by [authors/performers/ phonogram producers] in connection with the exercise of their rights under this Treaty [or the Berne Convention] and that restrict acts, in respect of their [works/performances/phonograms], which are not authorised by the [authors/performers/phonogram producers] concerned or permitted by law.
3.51 Examples of technological copyright protection measures include computer program "locks" and subscription broadcast encryption.
3.52 In the lead-up to the Diplomatic Conference, there was a good deal of concern about the technological measures provisions in the Basic Proposal. There was concern that the technological measures provisions, as originally drafted, would have had the effect of limiting access to public domain material and limiting fair use or fair dealing access to copyright material. Hardware manufacturers were concerned that even personal computers could have infringed the detailed technological measures provisions in the Basic Proposal.
3.53 However, these concerns were overcome by a compromise proposal adopted at the Conference. The technological measures provisions adopted by the Conference are more flexible than the original proposal concerning technological measures in the Basic Proposal. The obligations for Contracting Parties to provide "adequate legal protection" and "effective legal remedies" against the abuse of technological copyright protection measures will be able to be implemented without the unintended consequence of locking up access to public domain materials or putting at risk the future manufacture of well established hardware devices.
Rights management information
3.54 Both the treaties also provide for detailed sanctions against the deliberate removal or tampering with copyright identification information electronically attached to copies of materials. This information is referred to as "rights management information" (RMI) in the treaties.
3.55 In contrast to the general obligation in the treaties to provide effective remedies against the abuse of technological copyright protection measures, the RMI provisions are quite detailed. The RMI obligations in the new treaties (WCT Art.12 and WPPT Art.19) are as follows:
Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty [or the Berne Convention]:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works [performances, copies of fixed performances or phonograms] knowing that electronic rights management information has been removed or altered without authority.
3.56 "Rights management information" is defined in Art.12(2) in the WCT and Art.19(2) in the WPPT to mean information identifying authorship and rights ownership details of the copyright materials, or the performer or performance, including the terms and conditions of use of the work, sound recording or performance, and any codes or numbers that represent this information.
Exceptions provisions in new treaties
3.57 Both the WCT and the WPPT provide for exceptions and limitations to the rights provided for in the treaties.
Exceptions provisions in the WCT
3.58 There was intense and prolonged debate at the Diplomatic Conference about the scope of the limitations and exceptions provision in the WCT.
3.59 Article 10(1) of the WCT provides that Contracting Parties may provide for exceptions and limitations to the rights provided for in the Treaty in the following circumstances:
in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
3.60 This test for permitted exceptions in Art.10(1) of the WCT is the same as the so-called "three-step test" in Art.9(2) of the Berne Convention for permitted exceptions to the right of reproduction in Art.9(1) of Berne.
3.61 The first paragraph of the Agreed Statement in relation to Art.10 in the WCT is as follows:
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
3.62 The exceptions and limitations provision in the WCT also extends beyond the rights provided for in the Treaty. Art.10 of the WCT also extends to the application of the exceptions provisions in the Berne Convention. Article 10(2) of the WCT provides that:
Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
3.63 There was concern at the Diplomatic Conference that this application in the WCT of the three-step test to all the exceptions in the Berne Convention would require countries to revisit exceptions in their domestic laws relying on those exceptions, eg, the exception for reporting current events in Art.10bis(2) in Berne, to ensure that those exceptions complied with the "three-step" test.
3.64 However, the Conference adopted an Agreed Statement on the operation of Art.10(2) in the WCT that "it is also understood that Article 10(2) neither reduces nor extends the scope of the applicability of the limitations and exceptions permitted by the Berne Convention."
Exceptions provisions in the WPPT
3.65 The exceptions and limitations provisions in the WPPT were not subject to as great a debate as were the exceptions provisions in the WCT. Article 16(1) of the WPPT provides for exceptions and limitations in the WPPT as follows:
Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of performers and producers of phonograms as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works.
3.66 Art.16(2) in the WPPT provides that these exceptions must satisfy the three-step test. The scope of the permitted exceptions in the WPPT are substantially narrower than the scope of the exceptions provision in the Rome Convention. Article 15(1) of the Rome Convention provides that Contracting Parties may make exceptions as regards private use, use of excerpts in reporting the news, ephemeral copies for broadcasting and use for the purposes of teaching or scientific research.
SUMMARY
3.67 In summary, the new package of digital standards in the WCT and the WPPT includes:
3.68 Parts 4 and 5 of this paper propose a range of amendments to the Copyright Act to implement these new international copyright standards. The aim of the proposed amendments to the Act, which are outlined in Parts 4 and 5, is to reform copyright law in Australia to meet the challenges posed by the on-line environment, and also to enable Australia to sign these new WIPO treaties.
Part 4 - Proposed scheme for new transmission right and right of making available
4.1 Part 4 of this paper outlines the proposed scheme for the introduction of the new package of standards to reform copyright law in this digital age. Part 4 outlines the proposals for introducing a new transmission right and a new right of making available to the public.
4.2 Part 3 in this paper sets out the approach taken in the new WIPO treaties to transmission right issues. Appendix 2 outlines in detail the approach taken in the Copyright Convergence Group (CCG) report to transmission right issues and Appendix 3 outlines the approach in the Exposure Draft Copyright Amendment Bill 1996 to transmission right issues.
4.3 To briefly recap these issues, the CCG report recommended the introduction of a broadly-based technology-neutral transmission right to replace the diffusion right and encompass an expanded broadcast right. The CCG report concentrated on how the existing broadcast right and diffusion right should be updated to meet the challenges of new technologies, but did not consider in detail the application of the new transmission right to on-demand interactive services. The Exposure Draft included a new transmission right based on the CCG recommendations, but retained only a definition of "broadcast", rather than a broadcast right within the broader transmission right as recommended by the CCG.
4.4 Since the CCG report, the new WIPO copyright treaties have introduced new international standards in this regard, namely, the expanded communication to the public right and the new right of making available on-line.
4.5 The proposed scheme in this paper for the introduction of a new transmission right and right of making available builds on the recommendations in the CCG report, the proposals in the Exposure Draft and, most importantly, the new international standards in this regard.
4.6 At the end of this part, Table 1 sets out examples of how the proposed new rights would be exercised in practice. The aim of the table is to give some concrete examples to illustrate how the proposed new rights in the paper would apply to common uses of copyright material in the on-line environment.
WHAT ARE THE RIGHTS?
Separate rights of transmission and making available
4.7 The WIPO Copyright Treaty (WCT) includes the right of making available as part of the extended communication to the public right. The WIPO Performances and Phonograms Treaty (WPPT) separately provides for an exclusive right of making available and a right to remuneration for broadcasting and communication to the public.
4.8 The proposals in this paper separately provide for the new transmission right and the new right of making available as they are conceptually distinct activities. The nature of these proposed rights is different for different categories of copyright owners, as discussed below. Although the international standards in the WIPO treaties use the expression "communication to the public", it is proposed that amendments to the Australian Copyright Act should use the term "transmission right", consistently with the recommendations made in the CCG report in 1994.
Transmission right
4.9 It is proposed that there would be a new broadly-based technology-neutral transmission right, consistently with the general thrust of the CCG recommendations and the approach taken in the Exposure Draft. The definition of "transmission" in the proposed scheme would follow the approach taken in the Exposure Draft. It would not be tied to any form of technological transmission and would extend to all transmissions lawfully made in Australia.
4.10 A definition of "broadcast" would be retained in the Act, and would be consistent with the definition of "broadcasting service" in s.6(1) of the Broadcasting Service Act 1992.
4.11 The proposed transmission right would apply to transmissions to the public in the traditional non-interactive sense of "broadcasting", that is, the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission. The person receiving a broadcast can only receive it at the time when the person making the broadcast chooses to make the transmission.
4.12 The proposed new transmission right would be separate from the existing public performance rights in the Act. This would result from the proposed definition of "transmission" as requiring the use of reception equipment to perceive the material transmitted.
4.13 Also, the proposed new transmission right would not apply to and would be distinguishable from the distribution of physical copies of copyright material, such as books and sound recordings.
Right of making available
4.14 In contrast to the proposed transmission right, the right of making available to the public would be exercised when copyright material was made available to the public in such a way that it could be accessed at a time and a place chosen by members of the public. This right is designed to cover interactive on-demand services.
4.15 As noted in the Basic Proposal for the WIPO Diplomatic Conference that adopted the WIPO treaties, the requirement of individual choice in the right of making available excludes broadcasting from the scope of the new right. Because, like broadcasting, the making available is "by wire or wireless means", it is distinguishable from the act of distribution of physical copies.
4.16 The exercise of the right of making available may also involve the exercise of the reproduction right. For example, if a person uploads a copy of an article onto a publicly accessible Internet site, that person will have exercised the right of making available to the public and the reproduction right. The fact that one action may involve the exercise of several rights comprised in copyright is not new. For example, in the case of a radio playing music in a shop two exclusive rights in copyright are exercised; first the broadcast right is exercised by the broadcasting organisation emitting the signals of the broadcast and the public performance right is exercised by the person who owns the shop and has switched on the radio so that it is playing in public.
4.17 It should be noted that the proposed new right of making available could be exercised without exercising the right of reproduction. For example, a person could connect a file server with a copyright article already on it to a publicly accessible computer network, such as the Internet, and thereby exercise the right of making available without exercising the reproduction right.
Exclusive transmission right: works, films and broadcasts
4.18 The proposed new right of transmission for owners of copyright in works, films and broadcasts would be an exclusive right as are the broadcasting and cable diffusion rights for those copyright materials under the Act now.
Exclusive right of making available: works, films, fixed performances and sound recordings
4.19 The proposed new right of making available on-line for owners of copyright in works, films and sound recordings would be an exclusive right. The right proposed for performers will be discussed in the forthcoming issues paper on proposed new performers' rights.
Right of remuneration for broadcasting of fixed performances and sound recordings
4.20 The WPPT provides for a right of equitable remuneration for performers and producers of sound recordings for the broadcast and communication to the public of their sound recordings. The WPPT also provides that Contracting Parties, in their national legislation, may determine who should claim the remuneration, ie, the performer or the producer of the sound recording or both and, in the absence of agreement between the parties, the terms on which the single equitable remuneration shall be shared.
4.21 It is proposed that producers of sound recordings should be able to claim remuneration for the broadcasting of sound recordings (in the expanded sense of "broadcasting" as proposed above).
4.22 Currently, under the Copyright Act performers have no rights in authorised fixations of their performances (other than to object to the unauthorised synchronisation of sound recordings in a sound track of a film).
4.23 The issues paper on proposed new performers' rights that will follow the release of this paper will canvass the merits of extending performers' rights in Australia. Comments in relation to performers' rights issues should be made in response to the performers' rights paper.
Statutory licence to broadcast sound recordings
4.24 As discussed in more detail below, the issue of whether to remove the ceilings on the royalties payable for broadcasting sound recordings is currently under consideration by the Government (see further under the heading "Removal of statutory ceilings on payments for broadcasting of sound recordings"). Accordingly, no proposals are made to amend s.109 of the Act to provide that the statutory licence to broadcast sound recordings would be subject to the payment of, or agreement to pay, equitable remuneration.
4.25 Bearing in mind the proposed new definition of "broadcast", which would relate to both wireless and cable transmissions consistently with the definition of that term in broadcasting legislation, s.109 would apply to both over-the-air and cable transmissions.
4.26 Further, it is proposed that the statutory licence under s.109 should not apply to subscription broadcasts, so that subscription broadcasters would have to obtain a licence to broadcast sound recordings as they now have to from the owners of copyright in the musical works used in the recordings. However, it is proposed that the Copyright Tribunal would have jurisdiction to review the reasonableness of licences offered by record producers, as it now does to review licences offered by music copyright owners.
Removal of statutory ceilings on payments for broadcasting of sound recordings
4.27 In the absence of agreement between the parties, s.152 of the Act currently provides for the determination by the Copyright Tribunal of the level of royalties to be paid by broadcasters for the broadcast of sound recordings.
4.28 Section 152(8) provides that the Copyright Tribunal cannot order a broadcaster to pay more than 1% of its gross earnings in royalties for the broadcasting of sound recordings. Section 152(11) of the Act sets a different ceiling on the amount of royalties to be paid by the ABC for the broadcasting of sound recordings (viz, 0.5 cent per head of the Australian population) compared to the ceiling set in s.152(8) for commercial broadcasters and community broadcasters of 1% of the broadcasters' annual gross earnings. The section prescribes no maximum rate for the SBS.
4.29 A Working Group, comprising officers of the Department of Communications and the Arts and the Attorney-General's Department, has been considering issues arising from the ceilings on the amount of royalties paid by broadcasters for the broadcasting of sound recordings.
4.30 In summary, the Working Group has received submissions from the Phonographic Performance Company of Australia (PPCA) noting that the ceilings provided an artificial limit on the amount of royalties paid by broadcasters for broadcasting sound recordings. PPCA collects royalties on behalf of owners of copyright in sound recordings. The Working Group also received submissions from commercial broadcasters who opposed the removal of the limit on royalties on the basis that they were concerned that PPCA would make excessive demands for royalties if the ceilings were removed.
4.31 The Working Group has received submissions arguing strongly that national broadcasters (ABC and SBS) and the community broadcasters should be treated differently from commercial broadcasters in relation to any proposals to remove the ceilings on the payments that the Copyright Tribunal can set for the broadcasting of sound recordings. While commercial broadcasters are for-profit businesses, national and community broadcasters are non-profit organisations and have different objectives and imperatives.
4.32 It should be noted that amendments to s.109 and s.152 of the Act are not strictly necessary in order to comply with any obligations in the WPPT, as Australia could make a reservation to the obligations in Art.15(1) of the WPPT (and, indeed, it is proposed below that Australia enter a reservation with respect to indirect playing of sound recordings in public).
4.33 The issue of whether to remove the ceilings on the amount of royalties payable for the broadcasting of sound recordings will be separately considered by the Government, after receiving the advice of the Working Group.
Right of remuneration for playing sound recordings in public
4.34 The Copyright Act, s.108, already implements the right of remuneration provided for in the WPPT Art.15(1) for the playing of sound recordings in public - as regards owners of copyright in the recordings. For example, the playing of a CD on a CD player in a shop is a direct communication to the public of a sound recording. As to the rights of performers of the performances recorded, see the forthcoming issues paper on proposed new performers' rights.
4.35 It is not proposed to implement the right, also provided for in Art.15(1), to remuneration for indirect communication to the public of sound recordings. An indirect communication of a sound recording to the public would occur, for example, where a sound recording is included in a radio broadcast which is received by a radio set which is played in a public place such as a shop.
4.36 As it is proposed not to implement the right to remuneration for indirect communication to the public of sound recordings, Australia will need to enter a reservation, as permitted by Art.15(3) of the WPPT, in respect of this right.
Definition of "to the public" as used in the proposed new transmission right and right of making available
4.37 The definition of "to the public" is critical to the operation of both of the proposed new rights. The approach taken in copyright case law to the interpretation of the expression "to the public" is to examine the nature of the audience and consider whether the use of the copyright material is one which the copyright owner may reasonably regard as theirs to control. The interpretation of the expression "to the public" in case law has led to the acceptance that the term applies to the "copyright owner's public". For example, the performance and broadcasting of copyright material has been held to be "to the public" in cases in which the copyright material is used for business purposes.
4.38 While the CCG recommended against defining "to the public" in the Act, it suggested that transmissions of commercial value should be deemed to be transmissions to the public. The Exposure Draft inclusively defined the term "to the public" to mean "the public within or outside Australia" and provided that transmissions made for a fee were deemed to be made to the public. Thus the Exposure Draft fell well short of exhaustively defining "to the public".
4.39 The WIPO treaties provide no guide on how to interpret the expression "to the public". The Basic Proposal noted that it is a matter for national legislation to define "public". The treaties do not provide that the new rights should only apply to communications to the public made for a fee.
4.40 This paper notes the solid line of case law interpreting the expression "to the public". On the basis of the approach in these cases, including, in particular, the Full Federal Court decision in APRA v Telstra, this paper considers that the transmission or making available of copyright material by LANs (local area networks) and WANs (wide area networks) - sometimes generically referred to as corporate networks, which can include intranets - would, in many cases, constitute the exercise of the transmission or making available to the public rights.
4.41 In light of the approach taken by the courts to the interpretation of the term "to the public" as meaning "the copyright owner's public" this paper does not propose to define "to the public" in the Act. In the event that the decision of the High Court in the APRA v Telstra case, which has been taken on appeal to that Court, diverges from the currently accepted definition of "to the public" in the Act, the issue of whether the expression needs to be defined in the Act may need to be revisited.
4.42 To imply that transmissions or the making available of copyright material would be "to the public" only in circumstances in which a fee was paid might have the effect that such activities as transmissions on some commercial computer networks did not come within the ambit of the new rights. This is not a desirable outcome and is not consistent with the new international obligations in this regard.
4.43 Unauthorised downloading of works and other copyright subject matter from an intranet can be an infringement of the reproduction right and as such is the subject of enforcement activity (eg, pursuit of unauthorised in-house copying of computer programs).
4.44 On the other hand, private telephone conversations and private facsimile transmissions are not considered to be transmissions to the public.
Retransmission of broadcasts
4.45 Section 199(4) of the Act effectively provides that it is not an infringement of copyright in works included in a broadcast to retransmit the broadcast by cable. The CCG report recommended that this exception to copyright infringement for the cable retransmission of free-to-air broadcasts should be limited to retransmission by "genuine self help broadcasters only". The Exposure Draft included a provision that narrowed the operation of s.199(4) to simultaneous cable retransmission of free-to-air broadcasts within the service area of the primary broadcast but, contrary to the recommendation by the CCG, the Exposure Draft did not limit the operation of s.199(4) to genuine self help broadcasters only.
4.46 The Department of Communications and the Arts is currently consulting with affected interests on this matter in relation to the regulatory policy issues from a broadcasting policy perspective. Accordingly, the issue of retransmission will continue to be considered separately from the issues raised in this paper.
SUBSISTENCE AND OWNERSHIP OF COPYRIGHT IN BROADCASTS
4.47 The WPPT provides for obligations in relation to the rights of performers and producers of sound recordings only. Accordingly, the WPPT provides for no new international obligations in relation to the rights of broadcasting organisations. The Rome Convention provides for the protection of only wireless broadcasts, and does not include protection against cable retransmission.
4.48 Although Australia has no international obligations in this regard, this paper accepts the recommendation made by the CCG that copyright should subsist in broadcasts in the expanded sense of the term "broadcasts" as recommended by the CCG and as proposed in this paper.
4.49 Currently, copyright does not subsist in cable transmissions. In terms of transmission-type rights, copyright currently subsists only in wireless broadcasts.
4.50 It is proposed that the Act should be amended to extend copyright protection to wireless and cable transmissions made by any broadcaster licensed under the Broadcasting Services Act. Accordingly, the proposal to extend the subsistence of copyright to all broadcasts in the expanded sense of the term as proposed would be a major extension of the copyright in transmissions.
4.51 It is proposed that copyright be expressed to subsist in television or sound broadcasts lawfully made from a place in Australia, thus eliminating the need to refer to specific broadcasting laws or particular broadcasters. This would extend copyright protection to all subscription broadcasts lawfully made in Australia.
4.52 The owner of copyright in the broadcast would be the maker of the broadcast and the maker of the broadcast would be the person responsible for determining the content of the broadcast.
4.53 The CCG recommended, and the Exposure Draft proposed, that the expression "to the public" be extended to include the "public outside Australia" so that broadcasts from Australia directed to overseas audiences would be protected in Australia. This paper adopts this approach in order to extend copyright protection to transnational transmissions.
EXCEPTIONS TO THE NEW RIGHTS
Temporary and/or incidental copies
4.54 As discussed in detail in Part 3, there was considerable debate at the WIPO Diplomatic Conference about whether the sorts of temporary and incidental copies made in the course of electronic transmissions were already caught by the reproduction right in the Berne Convention. There was no satisfactory resolution of this debate.
4.55 Many temporary reproductions are made in the course of the technical process of electronic transmissions. It is proposed to exclude these reproductions, ie, temporary and incidental reproductions made in the course of the technical process of electronic transmissions, from the scope of the reproduction right. This is not to hinder protection of the rights of copyright owners in the on-line environment. Overall, the proposed scheme provides copyright owners with new rights over the primary action of transmitting or making available their copyright material on-line to the public.
4.56 The extension of the copyright owner's reproduction right to cover certain temporary and incidental reproductions made in the course of transmissions would tilt the copyright protection too far in favour of copyright owners. The proposed exclusion from their reproduction right of temporary copies made in the course of transmissions is an important part of the proposed scheme's balancing of the interests of owners of copyright and reasonable needs of users for access in the new communications environment.
4.57 The exclusion of certain temporary copies from the reproduction right of the copyright owner only extends to temporary copies made in the course of a transmission to the public. In the event that at any point a stored temporary copy is used for any other purpose than simply being part of a technical process to transmit the copyright material, that use - if it constituted an exercise of the copyright in the material, eg, making it available to the public - would be a separate act and would require the permission of the copyright owner.
4.58 Likewise downloading a hard copy of the temporary copy or transfer of such a copy to another file or onto a disk would be an exercise of the copyright owner's reproduction right and require permission (if, that is, the reproduction was not a fair dealing or done under another existing exception in the Act).
"Browsing"
4.59 The proposed right of making available, as outlined above, could be exercised by posting or connecting copyright material to a publicly accessible Internet site, despite the fact that no member of the public actually views (or "browses") the material, or makes a copy of it.
4.60 The act of "browsing", or simply viewing, copyright material on an Internet site is obviously not caught by the proposed right of making to the public. Browsing is simply the viewing by a person of material - there is no act of transmission by the site proprietor and the material has already been made available to the public.
4.61 Browsing would appear not be an exercise of the transmission right by the browser. As browsing usually, if not invariably, results in a temporary copy of the material being browsed materialising in the browser's computer terminal, there is an issue whether such a copy should be covered by the reproduction right or, alternatively, should be within the exception for incidental copies discussed above. It is proposed that the incidental copy created in the course of browsing would not infringe the reproduction right. As discussed above in relation to the incidental copy exception for transmissions, if at any point a stored temporary copy is used for any other purpose than simply being part of a technical process to enable browsing of the copyright material, that use - if it constituted an exercise of the copyright in the material - would be a separate act and would require the permission of the copyright owner.
Exceptions for fair dealing
4.62 The fair dealing provisions in the Copyright Act are not confined to any exclusive rights in particular. Accordingly, in their present form the fair dealing provisions would apply in relation to the proposals in this paper to extend the exclusive rights of copyright owners in works, sound recordings, films and broadcasts to include a new transmission right and right of making available.
4.63 This paper invites comments on whether there are major problems with allowing the fair dealing provisions to apply, without amendment, to the new transmission right and right of making available.
4.64 The matters raised for consideration in relation to the fair dealing exceptions in the 1997 CLRC Issues Paper, Simplification of the Fair Dealing Provisions in the Copyright Act 1968, are discussed briefly in Appendix 5 in this paper. When the CLRC reports on this matter, the impact on the proposals in this paper will be considered.
Exceptions for libraries and archives
4.65 The recommendations made in the 1995 CLRC report, Computer Software Protection, and the matters raised for consideration in the 1997 CLRC Issues Paper, Copying by Libraries and Archives under the Copyright Act 1968, in relation to the extension of the exceptions provisions for copying and electronic transmissions by libraries are discussed briefly in Appendix 5 in this paper. When the CLRC reports on the matters relating to the exceptions provisions for libraries, the impact on the proposals in this paper will be considered.
4.66 This paper invites comments on whether the exceptions provisions for libraries should apply to exempt libraries from copyright infringement in relation to the exercise of the new rights proposed in this paper, ie, the proposed new transmission right and the right of making available, bearing in mind the proposal above regarding browsing.
4.67 This paper notes that the definition of "archives" in s.10(1) and (4) of the Copyright Act could encompass museums and galleries.
Statutory licences in relation to broadcasts
4.68 It is proposed to extend the licences for copying of broadcasts by educational institutions (s.135A), sound broadcasting of works by print handicapped radio licensees (s.47A) and copying of works, films and sound recordings for the purposes of broadcasting (ephemeral copying) (ss.47, 70 and 107) beyond wireless broadcasts to all broadcasts that will come within the expanded definition of broadcast.
Liability of carriers, carriage service providers (including ISPs) and content service providers
4.69 Part 3 outlined the debate at the WIPO Diplomatic Conference about whether telecommunications companies and Internet service providers (ISPs) should be exempted from liability and noted that an Agreed Statement was adopted by the Conference to the effect that the "mere provision of physical facilities for enabling or making a communication" does not amount to the exercise of the communication to the public right. Apart from this statement, the treaties do not define the nature or extent of liability for the exercise of the new communication to the public and making available rights. The matter of liability is left to Contracting Parties to implement in accordance with their legal traditions.
4.70 As noted above, the scheme in this paper proposes that the maker of a transmission is the person responsible for the content. In that event, a telecommunications company, or a "carrier", would not be liable for the exercise of the transmission right to the extent that they only provided the infrastructure for the telecommunications network.
4.71 The CCG was of the view that common carriers could not be held to be liable in relation to services using the infrastructure provided by the common carrier on the basis of the law on authorisation of copyright infringement. Since the CCG report, the more difficult issue of the liability of ISPs has arisen.
4.72 No particular provision is proposed concerning the liability of ISPs for the exercise of the transmission or making available right. However, it is intended that, to the extent that they do not determine the content of material accessed via their networks, ISPs would not under the proposed scheme be considered themselves to have transmitted that material or made it available to the public. In these circumstances ISPs could only be liable to copyright owners if they were held to have authorised their users to transmit material or make it available to the public.
4.73 The scheme in this paper proposes that the law of authorisation, as now provided for in the Copyright Act, also apply in relation to determining whether an ISP is liable for infringing transmissions or making available to the public using the service provided by the ISP.
4.74 This paper does, however, invite comment on whether the Copyright Act should be amended to provide that ISPs would be exempt from copyright liability in any circumstances in which they provided notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act.
Authorisation provisions in the Copyright Act
4.75 The exclusive right to do an act in relation to copyright material includes the exclusive right to authorise a person to do such an act (s.13(2)). The authorisation of a person to do an act comprised in the copyright in a work or subject-matter other than work, without the licence of the copyright owner, constitutes in infringement of copyright (s.36(1) and s.101(1)).
Case law on the interpretation of "authorisation"
4.76 In light of the proposal in this paper that the liability of ISPs should be determined by case law, it is necessary to outline the tests in the major case on this matter, namely, University of New South Wales v Moorhouse (1975) 133 CLR 1.
4.77 In University of NSW v Moorhouse, a graduate of UNSW had used one of the photocopiers provided by the university library to make infringing copies from a book of Frank Moorhouse's short stories. The High Court held that the University of NSW had authorised this act of copyright infringement by offering an unqualified invitation to exercise the rights comprised in the copyright of the copyright owner, Frank Moorhouse. The University adopted a number of measures as precautions against the photocopiers being used to infringe copyright. These measures included a section on copyright in a library guide for users that made three bald statements. First, the library guide noted that it was the responsibility of users of the library to obey the Copyright Act. Secondly, the guide stated that a copy of the Copyright Act was available in a designated location in the library, noting also that extracts from the relevant sections were on each of the photocopying machines. Thirdly, it stated that photocopying could be done for the purpose of research or study.
4.78 Gibbs J noted that the section on copyright in the library guide was inadequate in a number of respects. It did not mention that copying for research or private study was only permitted if it amounted to a fair dealing with the work. The notices on the photocopying machines that the library guide referred to only referred to s.49, which provided that librarians were able to make a copy, rather than referring to s.40, which provided an exception to copyright infringement in relation to fair dealing for research or study. Gibbs J found that the critical weakness in the case of the University was the fact that it had not placed adequate notices on photocopiers to inform users that the machines were not to be used to infringe copyright.
General principles from case law on "authorisation"
4.79 The following general propositions can be made in relation to the law of authorisation of copyright infringement:
Application of authorisation case law to liability of carriage service providers (including ISPs) and content service providers
4.80 With these general propositions in mind, the scheme in this paper proposes that ISPs and content service providers that are aware of the likelihood of infringing acts occurring on services provided by them and fail to take reasonable measures to avoid such infringements could be liable for authorising an act of copyright infringement. Examples of such copyright infringements include downloading copies of copyright material such as computer software or articles from publicly accessible web sites or making available copies of such copyright material on publicly accessible web sites by uploading such material to an Internet site.
4.81 This paper does not accept the recommendation in the CLRC report on Computer Software Protection, namely, that an express exception for database operators from liability for authorising downloading of copyright material should be provided for in the Act. At the centre of the law of authorisation of copyright infringement is the fact that each case is decided with regard to all the circumstances of the case, eg, the nature of the act of infringement, the relationship between the parties, etc. The scheme as proposed in this paper supports the continued application of the law of authorisation on a case-by-case basis with full regard to all the circumstances of each case. This approach is preferred, particularly in light of the rapidly changing nature of the Internet and other publicly accessible computer networks.
4.82 This paper takes the view that the provision of a statutory exception for service providers on the Internet from liability for the authorisation of copyright infringement would be premature as the new communications environment is constantly evolving. It can be seen that, even since the release of the CLRC report on Computer Software Protection in 1995, many new issues in relation to the enforcement of copyright rights on the Internet have arisen. To introduce a statutory exception at the moment would "freeze" the law on this issue with the likelihood that the applicability of any such statutory exception would be rapidly superseded by technological developments. For these reasons, this paper proposes to leave the matter of liability of service providers to principles of authorisation as developed by the courts which are able to adapt the law to new developments.
4.83 This paper invites submissions on this point, especially with regard to whether the existing case law on authorisation of copyright infringement is sufficient to address the issue of the liability of ISPs and content service providers. In particular, as noted above, we do invite comment on whether the Copyright Act should be amended to provided that ISPs would be exempt from copyright liability in any circumstances in which they provided notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act.
SUMMARY
4.84 This paper proposes that a new transmission right be introduced into the Copyright Act. This transmission right would be technology-neutral and broadly-based. Accordingly, it would replace the existing cable diffusion right in the Act and the broadcasting right. It is proposed that a definition of "broadcast" be retained in the Act and that it would be expanded to include broadcasts (in the sense that this term is used the broadcasting legislation) by both wireless and wired means. A new right of making available to the public on-line is also proposed.
4.85 No proposals are made to amend the Copyright Act to provide a statutory definition for the expression "to the public" on the basis that the solid case law on the interpretation of the expression to mean the "copyright owner's public" achieves the desired policy outcome. However, it is proposed to insert in the Copyright Act a limited interpretation of "to the public" to extend the subsistence of copyright in broadcasts (including both over-the-air broadcasts and cable transmissions) to transnational transmissions.
4.86 The important issue of the exceptions to the new rights in the proposed scheme is also discussed in this paper. The paper invites comment on whether the fair dealing provisions in the Copyright Act should apply to the new rights proposed in this paper. The paper proposes that the Copyright Act be amended to provide for exceptions in relation to temporary and incidental copies made in the course of the technical process of transmitting copyright material. The paper queries whether the Copyright Act should be amended to apply certain exceptions for libraries and archives in relation to the exercise of the proposed new transmission and making available rights.
4.87 On the basis of the scheme proposed in this paper, it is intended that Telstra would as a carrier not be liable to APRA for the playing by others of music on-hold to users of mobile telephones, contrary to the result under the current law (in the Full Federal Court decision in APRA v Telstra).
4.88 No proposals are made in relation to providing carriers or carriage service providers with a statutory exception from liability for infringement of the new rights proposed in this paper on the basis that the case law on the authorisation of copyright infringement is better able to adapt to developments in this area. We do, however, invite comment on whether the Copyright Act should be amended to provide that ISPs would be exempt from copyright liability in any circumstances in which they provided notices to their subscribers about copyright rights and the nature of permitted use of copyright material under the Copyright Act.
4.89 No proposals are made in relation to the cable retransmission of free-to-air
broadcasts or the removal of the ceilings on the amounts payable for the broadcasting
of sound recordings as these issues are currently being considered separately
by the Government.
TABLE 1 - EXAMPLES OF HOW THE PROPOSED NEW RIGHTS WOULD BE EXERCISED
IN PRACTICE
| Use of copyright material | Exercise of proposed transmission right? | Exercise of proposed making available right? | Exercise of right of reproduction (with proposed exception)? |
| Subscription broadcasting (wireless and wired) | Yes | No | No |
| Non-subscription broadcasting (wireless and wired) | Yes | No | No |
| Linking a server (with copyright material) to the WWW | No | Yes | No |
| Uploading a document to a World Wide Web (WWW) site | No | Yes | Yes |
| Downloading a document from the WWW | No | No | Yes |
| Emailing an article as part of a commercial service | Yes | No | Yes |
| Emailing an article to mailing list | Depends on the list | No | Yes |
| Emailing an article to a friend (outside business/work) | No | No | Yes |
| Browsing the WWW | No | No | No |
| Making temporary copies in the course of browsing | No | No | No |
| Making temporary copies in the course of transmission | No | No | No |
| Posting an article to a newsgroup | Depends - comment invited on this issue | Yes | Yes |
Part 5 - Proposed scheme for new technological measures and rights management information provisions
5.1 Part 5 outlines proposed amendments to the Copyright Act to introduce two new measures to assist owners of copyright to enforce their rights. These two new enforcement standards relate to outlawing the abuse of:
5.2 As noted in Appendix 2, the CCG report recommended that two new offences should be enacted in relation to the unauthorised reception of transmissions. The Exposure Draft Copyright Amendment Bill 1996, discussed in Appendix 3, proposed amending the Copyright Act to include provisions for civil remedies against persons who dealt commercially with unauthorised decoding devices and also made provision for criminal offences for the fraudulent reception of encoded broadcasts and for the commercial dealing in unauthorised decoding devices. The Copyright Law Review Committee report, Computer Software Protection, also made recommendations in relation to the introduction of remedies for the unauthorised circumvention of locks on computer programs (see Appendix 5).
5.3 Since the CCG report and the Exposure Draft, the new WIPO treaties have introduced new international standards in this regard, with the new obligations in relation to enforcement of copyright.
5.4 The proposed scheme in this paper for the introduction of new enforcement provisions - to outlaw abuse of technological copyright protection measures and to outlaw abuse of rights management information - builds on the recommendations in the CCG report, the proposals in the Exposure Draft and, most importantly, the new international standards in this regard.
TECHNOLOGICAL MEASURES
5.5 The WCT and WPPT prescribe obligations in identical terms with regard to works, films, sound recordings and performances. The obligations are to provide "adequate legal protection" and "effective legal remedies" against the circumvention of "effective technological measures" that:
"Effective technological measures"
5.6 The first issue seems to be to identify "effective technological measures" in a general, technology-neutral way. For instance, the Government is aware of technological systems in use, or under development, for:
5.7 This paper invites interests to provide details of other forms of technological copyright protection devices.
"Adequate legal protection"
5.8 It was recognised by the Diplomatic Conference that adopted the WCT and WPPT that the technological measures provision in each treaty did not confer new copyright or neighbouring rights on right holders, and that therefore the obligations would or might have to be implemented by criminal sanctions.
5.9 As recommended by the CCG report and proposed in the Exposure Draft, it is proposed that the unauthorised:
of unauthorised equipment for or information on receiving encrypted broadcast signals should be made a criminal offence.
5.10 As recommended by the CLRC report on Computer Software Protection, it is proposed that the acts referred to in paragraph 5.9 above be made offences in relation to unauthorised equipment for or information on circumventing "locks":
5.11 It is proposed that the acts referred to in paragraph 5.9 above be made offences in relation to unauthorised equipment for or information on circumventing "spoiler" devices incorporated in compact discs and cassette tapes.
5.12 It was recommended by the CCG and proposed in the Exposure Draft to penalise the unauthorised reception of encrypted subscription broadcast signals, as has been done in at least two other countries, viz, the United Kingdom and New Zealand. This paper invites the views of interests on whether it is appropriate for criminal sanctions to extend into the home, as it were, in this way.
Civil copyright infringement
5.13 The practical problem with seeking to confer rights of action on right holders is to establish a link between the activity to be proscribed and unauthorised exercise of the rights in any particular work or other subject matter. However, the Exposure Draft did include a right of action for owners of copyright in encrypted broadcast signals against the unauthorised commercial importation and distribution of devices to aid decryption of the broadcast. The CLRC, in its report on Computer Software Protection, recommended that owners of copyright in computer programs have a right of action to prevent commercial manufacture, importation distribution and possession for commercial purposes of devices designed to facilitate the unauthorised circumvention of computer program "locks".
5.14 It is proposed that, as in the Exposure Draft, the owner of copyright in an encrypted broadcast signal have a right of action against the unauthorised commercial importation, distribution and possession for commercial purposes of a device designed to decrypt that signal. It is also proposed that the owner of copyright in a computer program or other materials electronically stored and accessed by a computer have a right of action against the unauthorised commercial importation, distribution and possession for commercial purposes of a device designed to circumvent a lock incorporated in that program or other materials against unauthorised copying or access.
"Effective legal remedies"
5.15 The existing provisions of the Copyright Act include criminal offences of making infringing copies, commercially importing and distributing them and possessing them for commercial purposes. The provisions in the Act on penalties for criminal offences prescribe penalties ranging from $500 maximum fine for an individual for a first offence to a maximum term of imprisonment of 5 years or, in the case of a corporation, a maximum fine of $250 000. Since the penalties provisions were last amended, the manner of prescribing penalties for offences against Commonwealth law has changed. The penalties provisions are currently under review with a view to bringing them into line with current Commonwealth criminal law policy on the prescription of penalties. The penalties for the offences proposed above would be fixed in conformity with current policy and related to those for comparable existing offences.
RIGHTS MANAGEMENT INFORMATION
5.16 The WCT and WPPT prescribe obligations in identical terms with regard to works, films, sound recordings and performances. Unlike the obligations concerning technological measures, the obligations concerning "rights management information" (RMI) are much more prescriptive.
Criminal offences
5.17 To comply with the treaty obligations, it is proposed to provide that:
a person shall not intentionally:
(i) remove or alter any electronic RMI attached to a copy of a copyright work
or other subject matter without the authority of the copyright owner;
(ii) commercially distribute, import for commercial distribution, transmit
or make available to the public copies of copyright works or other subject matter
knowing that electronic RMI has been removed or altered without the authority
of the copyright owner;
if the person knows, or ought reasonably to know, that it will induce, enable,
facilitate or conceal an infringement of the copyright in the work or other
subject matter.
5.18 Electronic RMI in relation to a work or other subject matter would be
defined as:
(a) information which:
(i) identifies the work or other subject matter, author or other copyright
owner or the performer;
(ii) concerns the terms and conditions of use of the work or other subject
matter; and
(b) any numbers or codes that represent such information.
Civil copyright infringement
5.19 Typically, civil infringement of copyright under the Copyright Act consists of the unauthorised exercise of one or more of the exclusive rights of the copyright owner (ss. 36 and 101). However the Act does include as infringement the unauthorised commercial importation of copies of a work or other subject matter, the commercial distribution of infringing copies and permitting a place of public entertainment to be used for an infringing performance of a work. It would be feasible to make the offence of removal or alteration of RMI and associated secondary offences the subject of civil infringement of the copyright in the work or other subject matter in relation to the copies from which the RMI was removed or altered. Interests are invited to comment on whether the owner of copyright in the work or other subject matter should have the right to bring an action for infringement of the copyright for alteration or removal of RMI.
SUMMARY
5.20 It is proposed that new enforcement measures be introduced into the Copyright Act. These enforcement provisions would outlaw the unauthorised circumvention of technological copyright protection measures, such as computer program locks, and outlaw abuse of rights management information electronically attached to copyright material.
The appendices in this paper provide the background to consideration of the
introduction of a proposed new transmission right into the Copyright Act
1968 prior to the conclusion of the two new World Intellectual Property
Organisation (WIPO) treaties in 1996.
Appendix 1 - Existing rights in the Copyright Act
Appendix 2 - Copyright Convergence Group report
Appendix 3 - Exposure Draft Copyright Amendment Bill 1996
Appendix 4 - Selected recent case law
Appendix 5 - Other developments
Appendix 1 - Existing rights in the Copyright Act
1.1 The Copyright Act 1968 protects original literary, dramatic, musical and artistic works - the so-called traditional subject matter of copyright protection. The Copyright Act also protects "subject matter other than works" namely, sound recordings, cinematograph films, sound and television broadcasts, and published editions.
1.2 The Copyright Act provides a number of exclusive rights for copyright owners. The bundle of exclusive rights is different for the different types of material protected by copyright.
Current transmission rights in the Copyright Act
1.3 Currently, the Copyright Act provides protection for certain transmissions to the public of works and certain subject matter other than works. In general, the limited existing transmission rights in the Copyright Act are the exclusive rights to:
1.4 However, as noted above, these rights vary according to the different subject matter that is protected.
Works and films
1.5 Owners of copyright in literary, dramatic and musical works have the right to broadcast the work (s.31(1)(a)(iv)) and the right to cause the work to be transmitted to subscribers to a diffusion service (s.31(1)(a)(v)). Owners of copyright in artistic works have the right to include the work in a television broadcast (s.31(1)(b)(iii)) and to cause a television programme that includes the work to be transmitted to subscribers to a diffusion service (s.31(1)(b)(iv)). The broadcast and diffusion rights of copyright owners in artistic works only apply to television services for obvious reasons: it is not possible to make a sound broadcast or transmission of an artistic work. Owners of copyright in film also have the right to broadcast (s.86(c)) the film and cause it to be transmitted to subscribers to a diffusion service (s.86(d)).
Sound recordings and broadcasts
1.6 Owners of copyright in sound recordings have a broadcast right (s.85(c)) and owners of copyright in broadcasts have a right to re-broadcast (s.87(c)) their broadcasts. However, owners of copyright in sound recordings and broadcasts do not have the right to transmit their sound recordings and broadcasts to subscribers to a diffusion service.
Definitions - "broadcast", "to the public" and "diffusion"
Broadcast
1.7 "Broadcast" is defined in s.10(1) of the Act to mean "transmit by wireless telegraphy to the public". The definition of broadcast is technology-specific and only applies to over-the-air transmissions, ie, it does not include transmissions made by wire (or cable). Section 10(1) also defines "wireless telegraphy" to mean "the emitting or receiving, otherwise than over a path that is provided by a material substance, of electromagnetic energy".
To the public
1.8 The words "to the public" were only added to the definition of "broadcast" in 1986. The Explanatory Memorandum for the Statute Law (Miscellaneous Provisions) Bill (No. 2) 1986, which included this amendment, noted that:
Proposed amendments of section 10 substitute a new definition of "broadcast" to better express the intention that only wireless transmission to the public are covered by the Act. Accordingly program-carrying signals not intended to be received by the copyright-owner's public will not be "broadcasts" even if a few members of the public possessing specialised equipment are able to pick them up.
1.9 The Attorney-General's second reading speech on the Statute Law (Miscellaneous Provisions) Bill noted that the words "to the public" were inserted into the definition of "broadcast" to clarify the meaning of the definition as it had been modified by the Copyright Amendment Act 1986. The Attorney's speech acknowledged that interested groups had submitted that the definition was unclear and did not convey the Government's intention that the definition of "broadcast" should cover "transmissions to the copyright owner's public, whether the 'general' public or part of the public." The Attorney noted that after consultations the amendment was agreed upon.
Diffusion right
1.10 The diffusion right extends to cable transmissions, but only to subscription cable transmissions. Section 26(1) of the Act provides that:
A reference in this Act to the transmission of a work or other subject-matter to subscribers to a diffusion service shall be read as a reference to the transmission of the work or other subject-matter in the course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires or over other paths provided by a material substance, to the premises of subscribers to the service. [emphasis added]
1.11 The other paragraphs in s.26 are discussed in Appendix 4 in relation to the APRA v Telstra case.
Retransmission of broadcasts
1.12 As noted above, copyright owners in works and films have the exclusive right to cause their works and films to be transmitted to subscribers to a diffusion service. However, there is an exception to this right in s.199(4) of the Copyright Act. Section 199(4) provides that:
A person who, by the reception of an authorised television broadcast or sound broadcast, causes a literary, dramatic or musical work or an adaptation of such a work, an artistic work or a cinematograph film to be transmitted to subscribers to a diffusion service shall be treated, in any proceedings for infringement of copyright, if any, in the work or film, as if the person had been the holder of a licence granted by the owner of that copyright to cause the work, adaptation or film to be transmitted by the person to subscribers to that service by the reception on the broadcast.
1.13 A similar exception to the exclusive transmission rights currently available under the Copyright Act is provided in s.25(3) of the Act. Section 25(3) provides that the copyright in a sound recording or a film that is included in a broadcast is deemed not to have been used in any simultaneous rebroadcast of the original broadcast.
Other rights
1.14 Various other rights are also relevant to the transmission of copyright material and will be reviewed in this paper to the extent that they are relevant to transmission right issues. These rights in relation to works include the rights to reproduce, to publish, and to perform the work in public. The copyright in sound recordings includes the exclusive right to make a copy of the sound recording (s.85(a)) and cause it to be heard in public (s.85(b)). Similarly, the copyright in a film includes the right to make a copy of the film (s.86(a)) and cause it to be heard and/or seen in public (s.86(b)).
1.15 It should be noted that the reproduction right in relation to works is the exclusive right "to reproduce the work in a material form" (ss. 31(1)(a)(i) and (b)(i)). Under s.10(1), "material form ... in relation to a work or an adaptation of a work includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced." "Copy of a sound recording" is defined in s.10(3)(c) of the Act to mean "a record embodying a sound recording or a substantial part of a sound recording being a record derived directly or indirectly from a record produced upon the making of a sound recording". "Copy" in relation to a cinematograph film is defined in s.10(1) of the Act to mean "any article or thing in which the visual images or sounds comprising the film are embodied".
Current provisions on subsistence and ownership of broadcasts and other transmissions in the Copyright Act
1.16 The exclusive rights in television and sound broadcasts are provided for in s.87 of the Copyright Act.
Subsistence of copyright in broadcasts
1.17 Section 91 of the Act provides that copyright subsists in television and sound broadcasts made from a place in Australia by:
1.18 Section 5(1) of the Broadcasting Services (Transitional Provisions) Act 1992 provides that a licence in force under the Broadcasting Services Act 1992 includes radio and television licences granted under the Broadcasting Act 1942 as if they had been allocated under the Broadcasting Services Act 1992. The effectiveness of this provision was affirmed in Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (1995) (the Foxtel case).
1.19 As noted above, "broadcast" in the Copyright Act refers only to transmissions by "wireless telegraphy" to the public. Accordingly, copyright does not subsist in cable transmissions.
1.20 It should be noted that s.113 of the Copyright Act provides that the subsistence of copyright in broadcasts is independent of any copyright subsisting in any underlying copyright material included in a broadcast, ie, copyright in films included in a broadcast subsists independently of the copyright subsisting in the television broadcast.
Ownership of copyright in broadcasts
1.21 The ownership of copyright in television and sound broadcasts is provided for in s.99 in the Act. Section 99 provides that copyright in broadcasts is owned by the ABC, SBS, the licensee under the Broadcasting Act 1942 or the prescribed person who is also a licensee under the Radiocommunications Act 1992.
1.22 Section 22(5) in the Copyright Act provides that the maker of a television or sound broadcast is the person who is responsible for the broadcast, ie, the person who has made the capital investment in the broadcasting organisation and is responsible for the broadcasting organisation.
1.23 Section 22(6) in the Copyright Act provides for the making of a satellite broadcast. The wording of this provision has been the subject of criticism which is discussed in the context of the CCG recommendations in Appendix 2. Section 26 provides that:
Where a television broadcast or a sound broadcast made by a person from a satellite, wherever located, consists of material transmitted from the earth to the satellite (whether directly or by means of another satellite) the broadcast shall, for the purposes of this Act, be deemed to have been made by the person at the time when, and from the place from which, the material was so transmitted from the earth. [emphasis added]
Proposed changes in Copyright Amendment Bill 1997
1.24 The Copyright Amendment Bill 1997 updates the references to broadcasting legislation in the Copyright Act by replacing references to the Broadcasting Act 1942 with references to the Broadcasting Services Act 1992 and making other related amendments.
1.25 No subscription broadcasting licences have been granted under the Broadcasting Act 1942, and, accordingly, copyright does not currently subsist in subscription broadcasts under s.91(b) and s.91(d) of the Copyright Act. The amendments in the Bill do not extend copyright protection to subscription broadcasts but, rather, preserve the current operation of s.91(b) and s.91(d) of the Copyright Act by confining copyright in broadcasts to free-to-air broadcasts. The Bill also preserves the subsistence of copyright in certain subscription broadcasts as provided for in s.91(a)(iii) and (c)(iii) in the Act, ie, broadcasts made from a place in Australia by a prescribed person who is a licensee under the Radiocommunications Act 1992.
1.26 The Copyright Amendment Bill 1997 also clarifies that a licence in force under the Broadcasting Services Act 1992 includes radio and television licences granted under the Broadcasting Act 1942 that, under s.5(1) of the Broadcasting Services (Transitional Provisions) Act 1992, continue in force as if they had been allocated under the Broadcasting Services Act 1992.
Summary
1.27 Currently, the Copyright Act provides limited protection for works and other copyright subject-matter when used in transmissions to the public, ie, when used in over-the-air broadcasts and transmissions to subscribers to a diffusion service. These limited exclusive transmission-type rights do not extend to all categories of copyright material. Most notably, owners of copyright in sound recordings and broadcasts do not have a cable diffusion right.
1.28 In the same way that the existing exclusive transmission rights are limited in the Copyright Act, the Act does not afford comprehensive copyright protection to all transmissions. That is, copyright only subsists in wireless broadcasts. Currently, for example, copyright does not subsist in cable television transmissions.
1.29 In addition to other more substantive amendments, the Copyright Amendment Bill 1997 updates the references to broadcasting legislation in the Copyright Act by replacing references to the Broadcasting Act 1942 with references to the Broadcasting Services Act 1992 and also makes other related minor amendments.
Appendix 2 - Copyright Convergence Group report
2.1 In February 1994, the then Minister for Justice appointed the Copyright Convergence Group (CCG) and asked it to consider the need for changes to the way in which the Copyright Act protected broadcasts and other electronic transmissions, including the underlying works in those transmissions, with regard to the fundamental changes in the way in which copyright material is being used.
2.2 In August 1994, the CCG released its report, Highways to Change: Copyright in the New Communications Environment. The CCG report made recommendations in relation to:
2.3 In view of the time constraints under which it worked, the CCG was unable to comprehensively cover the range of issues arising from the impact of new technologies on copyright. Accordingly, the CCG report also outlined an agenda for further review.
2.4 As noted in the introduction of this paper, the Coalition's election policy statements supported the need for new on-line and transmission rights in the Copyright Act. In its 1996 election policy, Australia Online, the Coalition supported the key recommendation made by the Copyright Convergence Group (CCG) to introduce a broadly-based technology-neutral transmission right into the Copyright Act. In light of this in-principle commitment to the CCG report's major recommendation, ie, to introduce a new transmission right, this chapter discusses that recommendation and other related CCG recommendations.
CCG transmission right recommendations
2.5 The cornerstone of the CCG report was the recommendation to introduce into the Copyright Act a broadly-based technology-neutral transmission right to authorise transmissions to the public.
CCG transmission right recommendation
2.6 The CCG report recommended that the new transmission right should:
2.7 The CCG concluded that it was unnecessary to make any recommendations in relation to who was the maker of a transmission to the public in the Copyright Act, referring to University of NSW v Moorhouse (1975) as an example of case law dealing with the principle of authorisation of activities infringing copyright.
2.8 Concerns were raised with the CCG in relation to the liability of "common carriers" for infringing transmissions made by services using the telecommunications infrastructure provided by the carrier. The CCG concluded that the case law on authorisation would exempt carriers from liability, but noted that the Government might wish to clarify this by amending the Copyright Act.
2.9 The CCG also adverted to considerations of national treatment in relation to its recommendation to introduce a new transmission right. At the time of the CCG report, the implementation of the CCG's recommendation would have resulted in Australia according a higher level of copyright protection to copyright owners, including foreign nationals, than other countries would have been required to afford Australian creators under international copyright obligations. This could have lead to an increase in the outflow of royalties to foreign creators in relation to the exercise of the new transmission right in Australian domestic copyright law without other countries being under any international obligation to afford Australian creators such rights. The two new WIPO treaties, discussed in Part 3 of this paper, address these national treatment concerns as the new treaties include international obligations to provide transmission-type rights to copyright owners on a national treatment basis.
CCG broadcast right recommendation
2.10 Although the CCG report recommended that a broadly-based transmission right would be the most appropriate solution to fill the gaps in the protection currently afforded by the Copyright Act, the CCG report also recommended that the right to broadcast should be retained in the Copyright Act as part of the new transmission right. The CCG report recommended the retention of a broadcast right, within the overarching transmission right for several reasons. First, the CCG report noted that the Copyright Act contains a number of provisions that specifically refer to broadcasting and which provide for the use of copyright material in broadcasts and the use of broadcasts by third parties. Secondly, the CCG report noted that "broadcasting" is often the subject of commercial arrangements and licences.
2.11 In addition to recommending the retention of a separate broadcast right as part of the broader transmission right, the CCG report recommended that the definition of broadcast should be technology neutral and extended to include any transmission that is made pursuant to a licence under the Broadcasting Services Act 1992, or as part of a national broadcasting service as defined in that Act.
2.12 Flowing on from the CCG report's recommendation that the definition of broadcast in the Copyright Act should be linked to the definition of broadcast in the Broadcasting Services Act 1992, the CCG report recommended that the definition of broadcast should exclude transmissions that provide no more that data or text, that make copyright material available on an on demand point-to-point basis, including a dial-up service, or any other transmissions that have been otherwise ruled not to be a broadcasting service for the purposes of the Broadcasting Services Act.
2.13 The CCG recommended that interactive on-demand services and computer networking of material should be excluded from the definition of broadcast as such services are not considered broadcasts under the Broadcasting Services Act. However, the CCG report noted that such services would be covered by the proposed new right of transmission to the public.
CCG diffusion right recommendation
2.14 The CCG recommended that the current right to transmit to subscribers to a diffusion service should be removed from the Act. It recommended that the diffusion right should be part of the broadly-based transmission right rather than continue to be a separate, technology-specific right. In making this recommendation, the CCG noted that some transmissions that might have been categorised as an exercise of the diffusion right would come within the expanded definition of "broadcast" (as recommended by the CCG and discussed above) which extends to certain cable transmissions while other transmissions that were not "broadcasts" would come within the proposed new transmission right.
2.15 Consistently with its recommendation to replace the diffusion right with a proposed new transmission right, the CCG recommended the repeal of section 26 in the Copyright Act. Section 26 provides interpretation of the existing diffusion right.
CCG recommendation re definition of "the public"
2.16 The issue of whether to include a definition of "the public" was an important issue of debate at the public seminar organised by the CCG in the course of the consideration of its reference.
2.17 The CCG recommended against the introduction into the Copyright Act of a definition of "the public" and recommended that the term should continue to be the subject of judicial interpretation.
2.18 However, the CCG report recognised that the advent of new communications technologies effectively "eliminated" the public sphere to the extent that a direct connection can be made between an author or service provider and a user. The definition of "to the public" is a matter of critical importance to the introduction of a new transmission right. While the CCG recommended against a definition of "the public" it recommended that commercial transmissions should be deemed to be transmissions "to the public" as follows:
There is a need to ensure that certain uses of copyright material which are provided on a point-to point basis and which may therefore not be "to the public", such as on-demand services, are nevertheless licensable by copyright owners. Rather than attempting to artificially extend the concept of the public by means of a definition, the CCG considers that unauthorised transmissions made for a commercial purpose should also infringe a copyright owner's rights. It therefore recommends that a provision be inserted into the Act which deems transmissions of copyright material which are made for a commercial purpose to be transmissions to the public. (CCG, p.29)
2.19 Although not the subject of a formal recommendation, the CCG noted that "it may be helpful to specify those services which are excluded from the general transmission right." Among others, these services included interactive services and business or domestic services that are not connected to any other telecommunications system but are entirely within the control of the business or individual. The objective of this "interactive services exclusion" was to ensure that services that "are generally regarded as private telecommunications are not transmissions to the public".
2.20 The CCG noted in making these observations that the electronic circulation in business networks of copyright material is of great concern to copyright owners who see such transmissions as being like mass photocopying of copyright material. However, that being noted, the CCG was of the view that such concerns should be addressed through the reproduction right and "appropriate licensing arrangements" rather than including such activities within the rubric of the CCG's proposed new transmission right.
Subsistence of copyright in broadcasts and other transmissions
2.21 The transmission right recommendations of the CCG, discussed above, relate to the introduction of a new exclusive right. The CCG complemented those recommendations with recommendations to extend copyright protection to new subject-matter, ie, transmissions beyond those covered by the limited and technology-specific subject matter of "broadcasts" in the Copyright Act.
CCG recommendation re subsistence of copyright in broadcasts
2.22 The CCG concluded that two factors should determine whether copyright subsists in a wire or wireless transmission. First, the transmission service should be operated pursuant to a relevant broadcast licensing scheme and, secondly, such a broadcast should be capable of being lawfully received by members of the public in Australia.
2.23 Accordingly, the CCG recommended that s.91 of the Copyright Act be amended to provide that copyright subsists in all broadcasts which are lawfully made from a place in Australia and which are capable of being lawfully received by members of the public in Australia. The effect of this recommendation is that references to specific broadcasters and statutes should be removed from s.91 of the Copyright Act.
2.24 The CCG also recommended that encrypted transmissions should also be protected as broadcasts provided that the decoding equipment is available to the public.
CCG recommendation re ownership of copyright in broadcasts
2.25 Consistently with its recommendation in relation to s.91 of the Act, the CCG also recommended that references to specific broadcasters and statutes should be removed from s.99 of the Act. The CCG recommended that s.99 in the Copyright Act should be amended so that the owner of copyright in a broadcast is the person who makes the broadcast.
2.26 The CCG also recommended that the definition of who is the maker of a broadcast, in s.22(5) of the Act, should be amended to provide that the maker of a broadcast is the person who is responsible for the content of the broadcast and makes the necessary arrangements for its transmission. The CCG noted that this recommendation would ensure that common carriers, eg, Telstra and Optus, would not be the owner of a broadcast for the purposes of the Copyright Act as they would not be responsible for the content of the transmissions.
CCG recommendation to update references to broadcasting legislation
2.27 The CCG also recommended that references to broadcasting legislation in the Copyright Act needed to be updated in light of the Broadcasting Services Act 1992 replacing the Broadcasting Act 1942. As noted above, the Copyright Amendment Bill 1997 introduces amendments to update broadcasting legislation references in the Copyright Act.
Transmissions in which copyright does not subsist
2.28 The CCG noted that it is "inconsistent and inequitable" to limit copyright protection to service providers according to the technological means by which they make their transmissions. The CCG concluded that the distinction in the Copyright Act between wireless broadcasters and cablecasters is no longer justified, despite the fact that the distinction between wireless and wire communication to the public rights is a key part of international copyright obligations. As noted above, the CCG recommended that the subject-matter of "broadcast" protected by the Copyright Act be expanded to include cable transmissions to the public to remedy the inconsistent treatment of wireless broadcasts and cablecasts under the Copyright Act.
2.29 However, the CCG recommended that copyright should only subsist in "broadcasts" in the expanded sense recommended by it, ie, wireless and wire broadcasts lawfully made from a place in Australia and capable of being received by members of the public in Australia. That is, the CCG recommended that copyright should not subsist in "non-broadcast transmissions", eg, interactive on-demand transmissions. In making this recommendation, the CCG noted that as the new communications networks develop that this issue may require further assessment.
Transnational transmissions
Transnational transmissions originating from Australia
2.30 At present, the Copyright Act does not provide copyright owners with the exclusive right to control transmissions that originate from Australia but are intended only for reception by the public outside Australia as they are not broadcasts to the public in Australia as required by the Act (see s.36(1) and s.101(1) in the Copyright Act).
2.31 The CCG report recommended that where a transmission originates in Australia and is intended for reception by the public outside Australia, the maker of the transmission should be required to obtain the licence of the Australian owners of copyright in the material being transmitted.
2.32 The CCG report also recommended that transmissions which originate in Australia and which are intended for reception by the public outside Australia should be protected as broadcasts in Australia if, had they been receivable by the public in Australia, the service would have been licensable under the Broadcasting Services Act 1992.
Transnational transmissions intended for reception in Australia
2.33 In the reverse situation, that is, when a transmission originates outside Australia but is intended for reception in Australia, the CCG "accepted the principle" that the maker of the transmission should be required to obtain the licence of the copyright owner in the material being transmitted. The CCG did not make a firm recommendation on this matter as it was aware that this issue raises difficult questions of private international law and that, if such a new right were to be of any practical significance to Australian copyright owners in the underlying works in transnational transmissions originating from outside Australia, the maker of the transnational transmission would have to have some connection with Australia.
2.34 The CCG recommended that transmissions originating from countries outside Australia and which are intended for reception in Australia should be afforded copyright protection in Australia. Copyright protection should be provided for such transnational broadcasts in circumstances in which had the transmission originated in Australia it would have been licensable under the Broadcasting Services Act 1992.
Maker of a satellite transmission
2.35 As noted above, s.22(6) is intended to provide who is the maker of a satellite broadcast and when it is made. However, the CCG noted that there were a number of concerns with s.22(6) as follows:
The person who made the broadcast is the person who made the broadcast from the satellite. This section does not make clear that it is the person who is responsible for the compilation of the signal, rather than the facilities operator or the transponder lessee or the satellite operator, who is the maker of the satellite broadcast. Thus, in actions for copyright infringement by means of satellite broadcast, it is difficult to identify who should be sued, or in whom copyright in the broadcast should vest. (CCG, p.44)
2.36 In relation to the maker of a satellite broadcast, the CCG noted that its recommendation to amend s.22(5) would obviate the need to specify who is the maker of a satellite broadcast. As noted above, the CCG recommended that the definition of who is the maker of a broadcast, in s.22(5) of the Act, should be amended to provide that the maker of a broadcast is the person who is responsible for the content of the broadcast and makes the necessary arrangements for its transmission.
2.37 In light of the difficulties with the interpretation of s.22(6) in the Act, the CCG recommended that it should be amended so that:
In the case of satellite broadcasts, the place from which the broadcast is made is the place from which the signals carrying the broadcast are transmitted to the satellite. (CCG, p.45)
Transmissions originating from a satellite
2.38 The CCG noted that computer generated material such as weather information may be created on a satellite and transmitted to earth. In such cases, no material is transmitted from earth to the satellite to be beamed back to earth. Such transmissions are not currently protected as broadcasts as the Copyright Act provides that copyright only subsists in broadcasts made from a place in Australia (see discussion relating to the subsistence of copyright in broadcasts above).
2.39 At the time of the CCG report, the Copyright Law Review Committee (CLRC) was considering its computer software protection reference, which included consideration of the protection and authorship of computer-generated works. The CLRC report, Computer Software Protection is dealt with further in Appendix 5.
2.40 Leaving aside the issue of the authorship of computer-generated works, the CCG recommended that transmissions originating from a satellite should be afforded copyright protection in circumstances in which the transmission is directly and lawfully receivable by the public in Australia and, if the transmission had been made in Australia, would have been licensable under the Broadcasting Services Act 1992.
2.41 In light of the CCG's recommendation to amend s.22(5) of the Copyright Act, the maker of such transmissions would be the person responsible for its content and who makes the necessary arrangements for its transmission.
Retransmission of broadcasts
2.42 As noted above, s.199(4) of the Copyright Act provides that a person who retransmits a broadcast by cable diffusion is deemed to have the licence of the copyright owner to retransmit the works and films in the broadcast. The CCG noted that while this provision was introduced at a time when the cablecasting of original material was not contemplated, it was no longer appropriate given the developments in cablecasting and pay TV in Australia.
2.43 Accordingly, the CCG recommended that the operation of s.199(4) should be limited to "retransmission by genuine self-help broadcasters only". Thus the CCG recommended that s.199(4) should continue to apply so that copyright owners in the underlying works in "broadcasts" (in the expanded and technology-neutral sense recommended by the CCG) that were retransmitted by cable should have no right to prevent the retransmission and would not be entitled to receive any remuneration for such retransmissions in the following circumstances:
2.44 Section 212 of the Broadcasting Services Act 1992 allows cable retransmission by "self-help" cable broadcasters and provides immunity from actions, including copyright actions, in relation to such self-help retransmissions. The CCG concluded that commercial gain should not be made from use of copyright material without the licence of the copyright owner. Accordingly, the CCG recommended that s.212 of the Broadcasting Services Act should be amended to correspond with the amendments that the CCG recommended to s.199(4) of the Copyright Act.
2.45 The CCG's recommendation to amend s.199(4) of the Copyright Act negates the need for s.25(2) in the Act which defines the phrase "to do an act by the reception of a broadcast", as the revised s.199(4) does not use this phrase.
2.46 Further, the CCG recommended that there would be no more need for s.25(3) in the Copyright Act, which deals with the simultaneous re-broadcast of broadcasts, in light of its recommendation that s.199(4) be amended to cover all retransmissions, including retransmission using both wireless and wired technology.
Unauthorised reception of broadcasts
2.47 The CCG noted that the impact of converging technologies on the enforcement of the use of copyright material in electronic transmissions will mean that it will be important for copyright owners to be able to take action against those who facilitate unauthorised reception of copyright material that is available on a restricted basis only.
2.48 The CCG noted that there is no Australian law that proscribes the unauthorised reception of encrypted signals, despite a number of statutes, eg, Crimes Act 1914, Radiocommunications Act 1992 and the Telecommunications Interception Act 1979 which proscribe various acts in relation to telecommunications and radiocommunications.
2.49 In light of the inadequate legislation to address the problems of "signal theft" that the CCG identified, the CCG recommended that two new offences in relation to the unauthorised reception of transmissions should be enacted and that these offences should be included in the Crimes Act rather than the Copyright Act. The two offences recommended by the CCG are as follows:
2.50 In addition to these criminal offences, the CCG also recommended that a new civil right of action should be introduced. The CCG recommended that the new civil right of action should:
(i) vest in the person who charged a fee for the intercepted transmission, or for whose benefit such fees were collected, or the maker of any encrypted transmission;
(ii) lie against any person who makes, imports, sells or lets for hire the unauthorised devices, and against any person who publishes information calculated to enable or assist any persons to receive services to which they are not entitled. (CCG, p.13)
2.51 The CCG added that the same rights and remedies should be available against the persons outlined above as would be available against those who infringe copyright.
Other issues
2.52 The CCG report also made recommendations in relation to other issues, including:
2.53 These issues will be considered briefly in turn below.
Incidental cable services where persons reside or sleep
2.54 Section 26(3) of the Copyright Act provides that it is not an infringement of copyright to provide a cable service of a broadcast or other copyright material if the "service is only incidental to a business of keeping or letting premises at which persons reside or sleep".
2.55 The CCG report concluded that s.26(3) was inequitable as it permitted the commercial use of copyright material while denying copyright owners the right to prevent such use of their copyright material and denying them the possibility of receiving any remuneration for the use of their copyright material.
2.56 Although the CCG recommended that s.26 of the Act should be repealed, as part of its key recommendation to introduce a broadly-based technology-neutral transmission right replacing the diffusion right, the CCG expressly noted its intention that this should include the repeal of s.26(3).
Ephemeral copying
2.57 The CCG noted that ss.47, 70 and 107 in the Copyright Act provide for ephemeral copying of works, films and sound recordings. The CCG noted that the purpose of the ephemeral copying provisions was to permit broadcasters to copy recordings of programs for use at a later time, eg, to make a repeat broadcast.
2.58 The CCG recommended that the ephemeral copying provisions permitting copying of copyright material by broadcasting organisations should be extended to cover all broadcasters, ie, all broadcasters regardless of the technology used, be it wire or wireless technology. The CCG made this recommendation on the basis that it would be unfair to exclude certain broadcasters from relying on this exception, eg, cablecasters cannot currently rely on this provision, particularly when the exception is still quite narrow.
2.59 In relation to transmissions that are not broadcasts, as recommended by the CCG and outlined above, the CCG was not convinced that the ephemeral copying exception should be extended to them and suggested that this issue be considered in a wider review of the Copyright Act.
Statutory licence for the use of sound recordings in broadcasts
2.60 Section 109 in the Copyright Act provides for a statutory licence for the broadcasting of sound recordings, ie, it is not an infringement of copyright in published sound recordings to broadcast those recordings if the broadcaster pays royalties or agrees to pay royalties. The Copyright Tribunal has jurisdiction to arbitrate disputes in the even that the parties cannot agree on the amount of royalties to be paid.
2.61 The CCG suggested that the statutory licence in s.109 requires consideration as to whether it should be retained in the Act. Pending this wider consideration of the licence, the CCG recommended that it should only apply to free-to-air broadcasts and not be extended to subscription broadcasts.
Section 212 of the Broadcasting Services Act 1992
2.62 Contrary to the effect of s.212(1)(b)(ii) of the Broadcasting Services Act 1992, the CCG recommended that the permission of the primary broadcaster should always be required to retransmit outside the licence area of that broadcast.
2.63 Currently, s.212 of the Broadcasting Services Act 1992 allows (cable and free-to-air) retransmission of national, commercial and community broadcasting services, although retransmission outside of the licence area of the primary broadcast is only allowed with the approval of the Australian Broadcasting Authority. Unless the person involved in the authorised retransmission is a licensee, s.212 also provides immunity from legal action in relation to the content of the material broadcast (eg, action for copyright infringement, defamation or contempt of court).
Agenda for further review
2.64 The CCG noted a range of broader copyright law reform issues that required attention in addition to the above recommendations for immediate legislative amendment. The issues on the CCG's agenda for further review that are relevant to this paper include:
2.65 Many of these issues that were flagged by the CCG as requiring more wide-ranging consideration have been taken up earlier in this paper.
Summary
2.66 In August 1994, the Copyright Convergence Group (CCG) presented its report, Highways to Change: Copyright in the New Communications Environment. The cornerstone of the CCG report was the recommendation to introduce into the Copyright Act a broadly-based technology-neutral transmission right to authorise transmissions to the public. The CCG recommended that the new transmission right should replace the diffusion right and encompass an expanded broadcast right. The CCG recommended that the broadcast right should be expanded to include wire and wireless broadcasts, consistently with the definition of "broadcast" in broadcasting legislation.
2.67 In addition to the major transmission right recommendation, the CCG made a number of other recommendations. The CCG report recommended that copyright should subsist in all broadcasts made lawfully in Australia and also made recommendations in relation to the protection of transnational transmissions. The CCG report recommended that the operation of s.199(4) should be limited to "retransmission by genuine self-help broadcasters only". In light of the inadequate legislation to address the problems of "signal theft", the CCG recommended that two new offences in relation to the unauthorised reception of transmissions should be enacted.
2.68 The CCG report also made recommendations in relation to other issues including incidental cable services where persons reside or sleep, ephemeral copying, statutory licence for the use of sound recordings in broadcasts, and s.212 of the Broadcasting Services Act 1992.
2.69 In its 1996 election policy, Australia Online, the Coalition supported the key recommendation made by the Copyright Convergence Group (CCG).
Appendix 3 - Exposure Draft Copyright Amendment Bill 1996
3.1 In February 1996, the previous Government released an Exposure Draft Copyright Amendment Bill 1996. Among a range of other proposed copyright amendments, Schedule 5 of the Exposure Draft provided for amendments to the Copyright Act in relation to the electronic transmission of works and other subject-matter.
3.2 As outlined in the commentary on the Exposure Draft, the purpose of the proposed transmission right amendments was to give effect to the then Government's decision to amend the Act "to reflect developments in modern communications technology". The then Government's decision to amend the Act flowed from the recommendations made in the CCG report.
3.3 The Exposure Draft Copyright Amendment Bill 1996, although released for public comment during the last federal election, was not introduced into Parliament.
3.4 The Copyright Amendment Bill 1997, which was passed by the House of Representatives on 23 June 1997 and introduced into the Senate on 25 June 1997, does not include proposed amendments in relation to a new transmission right, although in other respects the 1997 Bill is based on the 1996 Exposure Draft Bill.
3.5 Although the Exposure Draft Copyright Amendment Bill was not introduced into Parliament, the way in which it proposed to introduce a new transmission right is outlined briefly below.
Broadly-based transmission right
3.6 The cornerstone of the amendments contained in Schedule 5 in the Exposure Draft was the implementation of a new broadly based, technology-neutral right of transmission to the public. This right represented a fundamental change to the existing "communication rights" that are currently limited to broadcasting (by wireless means) and transmission to subscribers to a diffusion service (the cable right).
3.7 The broadly based right was not limited or tied to specific communication technologies. However, an essential element was that the reception of the transmission required the use of receiving apparatus. Accordingly, the right did not cover the physical distribution of copyright material in a material form, eg, the distribution of hard copies of books, compact discs, videos etc.
3.8 The proposed new transmission right applied to current copyright owners including broadcasters, producers of films and sound recordings and the owners of copyright in literary, dramatic, musical and artistic works.
3.9 The Exposure Draft provided that the current broadcast right and the right to transmit to subscribers to a diffusion service conferred upon owners of copyright in works and films would be replaced with a single technology-neutral right of transmission to the public. The proposed new transmission right also replaced the broadcast right in relation to sound recordings and the rebroadcast right in relation to broadcasts. At present the rebroadcast right subsists only in relation to broadcasts made in a place in Australia by the ABC, the SBS, permit holders under the Radiocommunications Act 1992 and licence holders under the Broadcasting Act 1942 (s.99). The proposed new transmission right in the Exposure Draft applied in relation to all television and sound broadcasts which were lawfully made in Australia.
Definition of transmission to the public
3.10 The proposed new transmission right in the Exposure Draft was expressed to be a right to "transmit [the work, sound recording, film or broadcast] to the public". Definitions of the terms "transmit" and "to the public" were included in the Exposure Draft. The expression "to the public" is currently used in the Act without being defined.
3.11 The term "to the public" was inclusively defined in the Exposure Draft to mean "the public within or outside Australia". The express inclusion in the definition of "the public outside Australia" was relevant to the protection of transnational transmission which is discussed further below.
3.12 Transmissions made for a fee were deemed to be made to the public in the Exposure Draft. The specific requirement that a fee be payable to the maker of a transmission for the receipt of the transmission excluded in-house business communications from being deemed to be to the public simply because they may be able to characterised as being made for a "commercial purpose". This approach followed the case law which has held "the public" to be the copyright owner's audience from which he or she is otherwise entitled to gain a fee. The most recent example of this case law, namely, Australasian Performing Right Association v Telstra Corp Ltd is discussed in Appendix 4 of this paper.
3.13 Private telephone conversations and facsimile messages were deemed not to be "to the public" (even where a copyright, literary or musical work is spoken or sung in the course of the conversation or sent in the course of the transmission). Although fees are payable by telephone subscribers to the carrier (eg, Telstra or Optus), they are not payable to the maker of the transmission as that term was defined in the Exposure Draft. The maker of the transmission was defined as the person responsible for the content of the transmission.
3.14 The term "transmit" was defined to encompass the ability to electronically transmit, by any means, visual images or sounds that were not capable of being heard or seen except by "reception equipment". "Reception equipment" was defined in the Exposure Draft to mean equipment the operation of which, either alone or together with other equipment, enabled persons to hear or see sounds or images that were electronically transmitted. The definition of reception equipment covered equipment such as television and radio tuners as well as video cassette recorders which could receive a broadcast and record the broadcast but which would not operate to enable persons to hear or see the broadcast unless and until it was connected to a television or monitor and associated audio equipment.
3.15 As noted above, the definition of transmit did not include the distribution of copyright material in material form such as books, records, films etc. The transmission right in the Exposure Draft was also clearly separate from the public performance rights in relation to works (s.31(1)(a)(iii)) sound recordings (s.85(b)) and films (s.87(b)).
3.16 The Exposure Draft also prevented copyright owners from being able to "double dip", ie, obtain multiple royalties where a combination of technical means was used to transmit their material to "the public".
Definition of broadcast
3.17 The Exposure Draft included a new definition of broadcast. The definition was consistent with (and used similar wording to) the definition of "broadcasting service" in s.6(1) of the Broadcasting Services Act 1992. Accordingly, the current definition of broadcast ("to transmit by wireless telegraphy to the public") was extended to incorporate all transmissions of broadcasting services under the Broadcasting Services Act (and included transmissions of national broadcasting services). Consistently with the definition of "broadcasting service" in s.6(1) of the Broadcasting Services Act, the definition of "broadcast" did not include such transmissions as on-demand services, interactive services and computer networking of material.
3.18 The term "broadcast" was defined as a form of transmission to the public. While the act of broadcasting was encompassed within the act of transmitting to the public, a separate definition of broadcast was retained in the Exposure Draft because the term is used in a number of sections in the Act in relation to statutory licences. The definition was also necessary for the provision in relation to the cable retransmission of non-subscription broadcasts. The Exposure Draft maintained a definition of broadcast to make it convenient for copyright owners to refer to broadcast rights in agreements where they wish to licence or assign those rights without necessarily licensing the entire transmission right.
Exceptions to new definition of broadcast
Statutory licence for broadcasting of sound recordings
3.19 Section 109 of the Act currently provides that the copyright in a published sound recording is not infringed by the making of a broadcast of that recording provided certain conditions are met. The Exposure Draft retained the current practical application of this statutory licence (ie, its application only to free-to-air broadcasts). The licence was not extended to subscription broadcasts as the issue of the continued application of the licence was being examined by the Copyright Law Review Committee.
3.20 Corresponding amendments were proposed in the Exposure Draft to s.152. Section 152 makes provision for applications to the Copyright Tribunal for determination of amounts payable for broadcasting published sound recordings. "Broadcaster" was defined in the Exposure Draft, for the purpose of s.152, to mean a person who makes broadcasts (other than subscription broadcasts) from a place in Australia.
3.21 The Exposure Draft did not limit the definition of "broadcast" to "non-subscription broadcasts" for the purposes of the statutory licences in relation to: copying of broadcasts by educational institutions (s.135A); sound broadcasts by print handicapped radio licences (s.47A); and copying of works, films and sound recordings for the purposes of broadcasting (ephemeral copying) (ss.47, 70 and 107). Accordingly, the Exposure Draft extended these licences beyond wireless broadcasts to all broadcasts that would have come within the new definition of broadcast.
Cable retransmission of "free-to-air" (non-subscription) broadcasts
3.22 Subsection 199(4) currently allows a person to "transmit a television or sound broadcast to subscribers to a diffusion service" without infringing copyright in any underlying work or film in the primary broadcast. The conferral of a transmission right on copyright owners in the Exposure Draft, including broadcasters and the makers of sound recordings, was not intended to override the operation of this section. Proposed new s.199(4) allowed a person to make a simultaneous retransmission by cable of a non-subscription broadcast (ie, free-to-air broadcast) within the service area of the free-to-air broadcast without infringing copyright in the free-to-air broadcast, itself, or any underlying work (or adaptation of the work), film or sound recording included in the free-to-air broadcast. Consequential amendments were made to subsection 199(5) in the Exposure Draft.
3.23 In the Government's election policy, For Art's Sake - A Fair Go!, the Coalition rejected the previous Government's approach to retransmission of free-to-air broadcasts. In the arts policy, the Coalition rejected the previous Government's failure to give commercial television broadcasters a transmission right to control the rebroadcast of their programming, noting that, in effect, the previous Government had given cable operators an unfettered right to re-transmit free-to-air signals free of charge.
3.24 Further, the Coalition arts election policy stated that there was no justification for this anomaly and the Coalition continued to support the general approach of the Copyright Convergence Group. The Coalition believed that it was reasonable to expect cable operators to pay for the privilege of using the intellectual property owned by others.
Subsistence and ownership of copyright in a broadcast
3.25 Currently, broadcasts in which copyright subsists are limited to wireless broadcasts made from a place in Australia by the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service Corporation (SBS), a licensee under the Radiocommunications Act 1992 or a licensee under the Broadcasting Act 1942 (s.91). The owners of copyright in these broadcasts are the ABC, SBS and the licensee, respectively (s.99).
3.26 This means that currently there is no protection for operators of cable services that distribute radio and television programs against either the copying of their programming (as distinct from the rights in the films, music, etc, incorporated in the programs) or the retransmission by cable or wireless means of their programming. The proposed amendment in the Exposure Draft provided that all licensees under the Broadcasting Services Act 1992, ie, wireless broadcasters and cablecasters, would have copyright protection of their broadcasts. The proposed new transmission right, of course, continued to provide copyright protection for the national broadcasters (the ABC and SBS).
3.27 The Exposure Draft proposed amending s.91 to provide that copyright should subsist in a television or sound broadcast lawfully made from a place in Australia. This approach eliminated the need for references to specific statutes or particular broadcasters and ensured that in order for copyright to subsist in a broadcast, the broadcast must have been made in accordance with the relevant regulatory scheme.
3.28 The Exposure Draft proposed amending s.99 to provide that the owner of copyright in the broadcast should be the person who made the broadcast. The maker of the broadcast was defined as the person who was responsible for determining its content. Thus, providers of broadcasting facilities, ie, telecommunications infrastructure, would not have owned copyright in transmissions made by service providers using their infrastructure, but for whose content the broadcasting facilities provider was not responsible in any way.
Transnational transmissions
3.29 At present no copyright subsists in transmissions (made by either the ABC, SBS or a licensed broadcaster) that originate from Australia and are intended only for reception by the public outside Australia. This is because such transmissions are not broadcasts within the meaning of the Act as "broadcast" means to transmit by wireless telegraphy to the [Australian] public. Furthermore, the owners of copyright in any material included in such transmissions have no rights in relation to those transmissions.
3.30 The Exposure Draft included a definition of "the public" as "the public outside Australia". This inclusive definition of "the public" meant that where a transmission originated in Australia and was intended for reception by the public outside Australia, the maker of that transmission would be required to obtain the licence of the Australian owners of copyright in the material being transmitted.
3.31 Secondly, the definition of "the public" meant that a broadcast originating in Australia but intended for reception by the public outside Australia would also be subject to copyright protection in Australia. These proposed amendments in the Exposure Draft did not have extra-territorial reach, that is, the protection of the broadcast outside Australia was beyond Australian law.
Makers of other transmissions
3.32 The Exposure Draft proposed to repeal s.26(2) which designates the person who is deemed to be the maker of a transmission to subscribers to a diffusion service. This provision was no longer needed as the Exposure Draft also proposed to repeal the diffusion right, as noted above.
3.33 The Exposure Draft provided that the maker of a transmission (other than a broadcast) was the person responsible for the content, not the mere provider of the technical means of transmission. Common carriers would not be liable for transmissions that were made by service providers using their infrastructure, but for whose content the common carrier was not responsible in any way.
3.34 Under the Exposure Draft, a maker of a transmission other than a broadcast did not own copyright in relation to that transmission. Ascertaining the maker of such a transmission would only be relevant in determining who was exercising the transmission right of the owner/s of copyright in any underlying copyright material included in the transmission.
Unauthorised reception of transmissions
3.35 As noted in the discussion of the CCG report, Australia does not have general legislation which concerns the unauthorised use or reception of encrypted broadcast signals.
3.36 The Exposure Draft included provisions for civil remedies against persons who dealt commercially with unauthorised decoding devices and also made provision for criminal offences for the fraudulent reception of encoded broadcasts and for the commercial dealing in unauthorised decoding devices.
Up-dating references
3.37 The Exposure Draft also removed the outdated references to the Broadcasting Act 1942, which has now been superseded by the Broadcasting Services 1992.
Summary
3.38 In February 1996, the previous Government released an Exposure Draft Copyright Amendment Bill 1996 which included proposed amendments to the Copyright Act in relation to the electronic transmission of works and other subject matter. The then Government's decision to amend the Act flowed from the recommendations made in the CCG report. The proposed new transmission right would have applied to current copyright owners including broadcasters, producers of films and sound recordings and the owners of copyright in literary, dramatic, musical and artistic works.
3.39 The Exposure Draft provided for a new broadly-based, technology-neutral right of transmission to the public. This right would have fundamentally changed the existing "communication rights" that are currently limited to broadcasting (by wireless means) and transmission to subscribers to a diffusion service (the cable right). An essential element was that the reception of the transmission required the use of receiving apparatus.
3.40 The term "to the public" was inclusively defined in the Exposure Draft to mean "the public within or outside Australia". Also, transmissions that were made for a fee were deemed by the Exposure Draft to be made to the public.
3.41 The Exposure Draft proposed amending the Copyright Act to provide that copyright should subsist in broadcasts lawfully made in Australia and that the owner of copyright in such broadcasts should be the person who made the broadcast, ie, the person responsible for determining the content of the broadcast.
3.42 The Exposure Draft, although released for public comment during the last federal election, was not introduced into Parliament. The Copyright Amendment Bill 1997 that is currently before the Parliament does not include proposed amendments in relation to a new transmission right.
Appendix 4 - Selected recent case law
4.1 There have been several major recent cases that have highlighted certain strengths and weaknesses in the ability of the existing law to protect copyright material in the new communications environment. This Appendix will discuss the following selected cases:
4.2 This Appendix will provide an overview of these cases and use them to illustrate both the gaps in existing copyright protection and the way in which developments in case law have responded to challenges posed by technological developments.
APRA v Telstra
4.3 The APRA v Telstra litigation has demonstrated both the strengths and weaknesses in the existing protection under the Copyright Act. Accordingly, this Appendix will discuss both the first instance and the Full Federal Court judgements in this case.
Facts of the case
4.4 Australasian Performing Right Association Limited v Telstra Corporation Limited (1993) 26 FCR 131 (the APRA v Telstra case) was a test case bought by the parties to determine whether the provision of music heard by listeners "on hold" (ie, music on hold) constituted an infringement by Telstra of the copyright in the underlying works in the transmission of the music.
4.5 APRA is a copyright collecting society and the owner of certain public performance and broadcasting rights conferred on owners of copyright in musical works. Telstra is licensed under the telecommunications legislation to supply and maintain the Australian telecommunications network.
4.6 As part of its business in Australia as a common carrier (ie, a telecommunications carrier) Telstra transmitted music to users of telephones placed on hold. Evidence was led in the case that music on hold was played by Telstra in two circumstances, first, by a Telstra service centre and secondly by Telstra as part of its CustomNet mobile phone service to its customers. Thirdly, evidence was led that music on hold was played by a taxi cab company, ie, a third party, using Telstra's telecommunications infrastructure.
4.7 APRA argued that Telstra had infringed the copyright in the music played on hold in the above situations by infringing the exclusive rights of the copyright owner to:
APRA v Telstra - first instance judgment
4.8 In November 1993, the first instance judgment in the APRA v Telstra case was handed down by Gummow J. At first instance, Gummow J rejected each of APRA's three contentions that Telstra had infringed copyright by causing the works to be transmitted to subscribers to a diffusion service, performing the works in public and broadcasting the works.
Diffusion right
4.9 Gummow J held that the transmission of music on hold by Telstra to its own customers and by third parties using Telstra's telecommunications infrastructure was not a transmission of the copyright work as required by s.26(1) in the Copyright Act. That is, the transmission of music on hold was not a transmission "in the course of a service distributing broadcast or other matter (whether provided by the person operating the service of by other persons) over wires, or over other paths of material substance, to the premises of subscribers to the service." as required by s.26(1) of the Act.
4.10 Gummow J concluded that a service with the primary function of facilitating communication between two people could not readily be described as a service of "distributing matter" as required by s.26(1) (at p.137). The transmission of music on hold was held not to be a service of distributing matter, as no-one subscribed to hear music on hold as such (at p.137) and even if this could have been seen as a service of "distributing matter" as required by s.26(1), there was no "undertaking" or "agreement" to provide this service as required by s.26(4).
4.11 Following from these conclusions, Gummow J held that by transmitting music on hold to its own customers and transmitting music on hold played by third parties, Telstra had not caused the work to be transmitted to subscribers to a diffusion service (at p.138).
Public performance
4.12 APRA argued that Telstra had performed the works in question in public by transmitting music on hold, as per APRA's interpretation of s.27(3) in the Act.
4.13 Gummow J rejected this argument, concluding that such an interpretation of s.27(3) of the Act "would deny the natural effect of the subsection" (at p.139). Gummow J noted that the effect of s.27(3) was that "where a work is transmitted along a wire or through the air and is played by the person receiving it to a public gathering, the person receiving the transmission, not the person transmitting it, is deemed to be the person performing the work in public". (at p.139).
Broadcasting to users of mobile phones and interpretation of "to the public"
4.14 Gummow J agreed with APRA's contention that transmission of music on hold to mobile phones did constitute a "transmission by wireless telegraphy" (the defined meaning of "broadcast" in s.10(1) of the Act). However, His Honour held that this transmission was not "to the public" as also required by the definition of "broadcast". After examining the authorities on the interpretation of "to the public", in the context about cases concerning the public performance right, Gummow J concluded that what was relevant was not the number of recipients of the transmission "but its essential nature" (at p.114). Gummow J noted that:
[T]ransmissions to mobile telephones are provided by Telecom to facilitate private communication between two people. It would be distorting the language of the broadcasting provisions to hold that if during the course of this private communication one party was to communicate a work to the other party, this amounts to a broadcast by Telecom to the public. (at 114)
APRA v Telstra - Full Federal Court judgment
4.15 On appeal, the Full Federal Court overturned in part the judgment of Gummow J and held that Telstra had infringed copyright by causing the works to be transmitted to subscribers to a diffusion service and broadcasting the works. APRA did not appeal the finding by Gummow J that Telstra had not infringed the public performance right by transmitting music on hold by performing the work in public.
Diffusion right
4.16 Black CJ and Burchett J held that s.26(5) of the Act operates such that a subscriber to the telephone service is deemed to be a subscriber to the music on hold service. Black CJ emphasised that s.26(5) does not require an actual subscription to the music on hold service (at p.146). The appeal was allowed to the extent that the right to cause the musical works to be transmitted to subscribers to a diffusion service was held to have been exercised in circumstances in which the musical works played came from a sound recording.
4.17 Sheppard J dissented on this point and rejected APRA's contention that by subscribing to the telephone service that subscribers to that service are deemed to become subscribers to the music on hold service which is a diffusion service within the meaning of the Act (at p.152). Sheppard J noted that the kind of diffusion services envisaged by the legislature in enacting the diffusion right in s.31 in the Act, as interpreted in s.26, did not include the kind of music on hold services in question in this case. Rather, his Honour suggested that the diffusion right was intended to apply to services for "those wishing to listen to music or other recorded material, or to watch film or video, by providing them, whether for payment of a fee or not, with a facility of listening or watching such material over wires or other paths provided by a material substance to the premises of the subscribers." (at p.152)
4.18 Sheppard J also dissented from the majority view in this case in relation to the interpretation of s.26(5). His Honour noted that while a good deal had been argued about the significance of s.26(5) that it "cannot control the whole meaning of the section nor be read so as to confer rights which are not to be found even incidentally in the provisions of s.31, which, after all, is the provision which confers the right, or in the remaining provisions of s.26." (at p.153) Accordingly, Sheppard J agreed with the conclusion of the trial judge, Gummow J, that by transmitting music on hold to its own customers and transmitting music on hold played by third parties, Telstra had not caused the work to be transmitted to subscribers to a diffusion service
Section 199(4) - cable retransmission of broadcasts
4.19 The majority in the APRA v Telstra case, Black CJ and Burchett J, held that in cases in which the musical works that were transmitted to subscribers to a diffusion service (ie, the music on hold service) were sourced by sound broadcasts the operation of s.199(4) provided that the diffusion right in the works was not infringed.
4.20 In his dissenting judgment, Sheppard J held that there was no need for him to express a view on the operation of s.199(4) in the Act as he held that the diffusion right in s.31(1)(a)(v) had not been infringed by Telstra's transmission of the music on hold service.
Broadcasting to users of mobile phone and interpretation of "to the public"
4.21 The Full Federal Court unanimously decided that the transmission of music on hold services to mobile phone was an infringement of the broadcast right. As noted in the judgment, the critical words were "to the public", because broadcast is defined in s.10(1) of the Act as "transmit by wireless telegraphy to the public" (emphasis added). Sheppard J considered in detail the relevant authorities on the interpretation of "to the public" and concluded that the transmission of music on hold to mobile phones was "to the public". Black CJ and Burchett J concurred with this conclusion.
4.22 The interpretation of the phrase "to the public" is an important issue to be considered in the scheme of new transmission and making available rights proposed in Part 4 of this paper. Accordingly, it is instructive to detail the judicial considerations of this phrase in APRA v Telstra.
4.23 Sheppard J charted the legislative history of the definition of "broadcast" and the inclusion of the words "to the public" in the definition section in s.10(1) of the Act in amendments to the Act in 1986. The legislative history of this provision is discussed in Appendix 1 of this paper.
4.24 His Honour adverted to the fact that the Attorney-General noted in the second reading speech for the amendment bill that added the words "to the public" to the definition of broadcast that affected interests had submitted that the definition was unclear and "did not express the government's intention that 'broadcast' in this context should cover transmissions to the 'copyright owner's public' whether the 'general' public or part of the public". (at p.160) Sheppard J thus noted that "a transmission to the public was intended to mean a transmission to the copyright owner's public." His Honour went on to note that the expression "the copyright owner's public" had a well understood meaning which had been developed in the context of the need to interpret the public performance right in s.31(1)(a)(iii) in the Act.
4.25 Although Sheppard J noted that the phrase "to the public" would have been given a meaning consistently with the case law on the expression "the copyright owner' public" even in the absence of the Attorney's comments on the second reading speech. However, that being said, His Honour noted that any ambiguity in the expression was clarified by the Attorney's speech.
4.26 After canvassing the 1986 amendments and the Attorney's comments in his second reading speech that "to the public" meant to the "copyright owner's public", Sheppard J canvassed the copyright case law on these expressions.
4.27 The judgment in APRA v Telstra refers to the case Rank Film Production v Colin S Dodds [1983] 2 NSWLR 553 (the Rank Film case) in which Rath J held that showing videos in motel rooms was an exercise of the public performance right in films. Sheppard J noted that the considerations in the Rank Film case were relevant to the APRA v Telstra case even though the Rank Film case was concerned with the public performance right and the APRA v Telstra case was concerned with the broadcasting right.
4.28 In APRA v Telstra, Sheppard J noted that Rath J in the Rank Film case discussed a range of relevant case law on the interpretation of the expression "in public", including the case Jennings v Stephens [1936] Ch 469. In Jennings v Stephens, Greene LJ (as he then was) said (at 485):
The question may therefore be usefully approached by inquiring whether or not the act complained of as an infringement would, if done by the owner of the copyright himself, have been an exercise by him of the statutory right conferred upon him. In other words, the expression "in public" must be considered in relation to the owner of the copyright. If the audience considered in relation to the owner of the copyright may properly be described as the owner's "public" or part of his "public" then in performing the work before that audience he would in my opinion be exercising the statutory right conferred upon him; and any one who without his consent performed the work before that audience would be infringing his copyright.
4.29 In the Rank Film case, as quoted in APRA v Telstra, Rath J held that the guest in the motel could be considered to be part of the copyright owner's public. Neither the privacy of the surroundings or the limited size of the audience were the critical issues. rather "the critical matter was the presentation of the movie by the occupier of the hotel to his guest in that capacity" (at p.162). Further, Rath J held that "performance 'in public' means performance to the public of the owner of the copyright, and 'public' includes a portion of the public, however small". (at p.164 in APRA v Telstra).
4.30 In Australasian Performing Right Association v Canterbury-Bankstown Leagues Club Ltd [1964-5] NSWR 138, it was held that the playing of music in the football club to club members and guests was an exercise of the public performance right. this case referred to Greene LJ's comments quoted above from Jennings v Stephens and concluded that the audience in the football club was the type of audience that could be properly described as the copyright owner's public. (at p.163) Ferguson J in APRA v Canterbury-Bankstown Leagues Club went on to consider the nature and scope of the public performance right as follows (quoted at p.163 in APRA v Telstra):
It [the then Australian Copyright Act] gives to the owner the sole right to perform the work in public. If the performance in this case were held not be a performance in public it would be entitled to promote concerts for its members and their guests without obtaining the consent of the owners of the copyright therein. To give the Act such an interpretation would deprive copyright owners of the very protection which, in my view, it was intended to confer.
4.31 Finally, Sheppard J in APRA v Telstra notes comments made in an earlier judgment of Gummow J in relation to interpretation of the expression "to the public". Sheppard J notes that in APRA v Commonwealth Bank (199) 40 FCR 59 Gummow J made the following comments on the phrase "to perform the work in public" (quoted in APRA v Telstra at p.164):
Running through the authorities I have discussed is the notion that for the purposes of this performing right a performance will be "in public" if it is not "in private", and the perception of an antithesis between performances which are in public and those which are "domestic" or "private" in character. In determining whether a performance answers the latter description, the nature of the audience is important. In coming together to form the audience for the performance were the persons concerned bound together by a domestic or private tie or by an aspect of their public life? Their "public life" would include their presence at their place of employment for the supply of a performance to assist the commercial purposes of their employer.
4.32 Having canvassed these authorities, and notably the Rank Film case, Jennings v Stephens, APRA v Canterbury-Bankstown Leagues Club and APRA v Commonwealth Bank Sheppard J in APRA v Telstra concluded that the transmission of music on hold to mobile phones was a broadcast, ie, a "transmission by wireless telegraphy to the public" (definition of broadcast in s.10(1)). Sheppard J rejected the proposition that the broadcast right could only be infringed by a broadcast "to members of the public in some collective sense" and, in coming to this conclusion, he noted that "most people listening to the radio will do so in the privacy of their homes or motor cars ... they are not listening in groups and there is an element, if not quite to the same extent, of privacy, in the selection of the radio program one chooses to listen to" (at p.166).
4.33 Further, Sheppard J held that:
If it be right to say, as I have concluded it is, that it is the copyright owner's public which has to be considered, the provision of music on hold could not be described a "domestic or quasi-domestic in character": Ferguson J in Canterbury-Bankstown League Club. Furthermore, the audience, although in some cases reluctant and unwilling, is one "which the owner of the copyright [can] fairly consider a part of his public": Goddard LJ in Ernest Turner. These and other expressions used in the various dicta which I have quoted here indicate that the use of the copyright work here is a use which the copyright owner may reasonably regard as his or hers to control. The provision of the music by the organisations called will invariably be for business purposes. The music may have only a tangential relevance to the essential purpose of the call, but it is provided, no doubt on the basis of marketing experience, to entertain - some might say, appease - the caller during the period he or she has to wait for attention ... I think the privacy of the telephone call is not the determining actor. It is the nature of the use of the copyright material that concludes the matter. (at p.166)
APRA v Telstra - Appeal to High Court
4.34 Telstra sought and was granted leave to appeal against the Full Federal Court's decision by the High Court. The High Court heard the appeal in 1996 and reserved its decision.
Comment on APRA v Telstra
4.35 For present purposes, the APRA v Telstra decisions are important in two main respects. First, the fine distinctions in interpreting the relevant provisions in the different judgments demonstrate the fact that s.26, which interprets the diffusion right, is a complicated, technical provision that does not serve either copyright users or copyright owners well in the new communications environment.
4.36 There is no need to make further comments on the reasoning in the judgments on the diffusion right as this paper recommends that it be replaced by a broadly-based technology neutral transmission right, consistently with the CCG's major recommendation and to comply with the extended communication to the public right in the new WIPO treaties.
4.37 Secondly, the Full Federal Court appeal in the APRA v Telstra case is a significant case in terms of its examination of the case law on the interpretation of the phrase "to the public" and the conclusions made by it. Part 4 considers this case in the context of whether it is necessary to define "to the public" in the Copyright Act or leave the phrase to judicial interpretation.
APRA v Ozemail
4.38 APRA has filed proceedings in the Federal Court against Ozemail Ltd, an Internet service provider (ISP). One of the services offered by Ozemail to its subscribers is the service of distributing broadcast and other matter by cable to its subscribers. APRA has contended that Ozemail's service is a diffusion service within the meaning of the Copyright Act, and that it caused copyright material in the APRA repertoire to be transmitted to subscribers to a diffusion service, without the licence of the copyright owner, ie, without APRA's licence.
4.39 This case has not been heard as yet.
4.40 It is understood that APRA has sought payment of a $1 per subscriber per year from ISPs as a licence fee for the transmission to subscribers of a diffusion service of the musical works in which APRA owns the copyright.
Summary
4.41 The Full Federal Court decision in the APRA v Telstra case is a significant case in terms of its examination of the case law on the interpretation of the phrase "to the public" and the conclusions made by it. Part 4 of this paper discusses this case in the context of whether it is necessary to define "to the public" in the Copyright Act or leave the phrase to judicial interpretation.
Appendix 5 - Other developments
5.1 Since the release of the CCG report, several other reports have been released in Australia that have examined the way in which copyright laws need to be updated to ensure that copyright standards remain relevant in the new digital age.
5.2 This Appendix briefly discusses the following reports:
5.3 The Australian Broadcasting Authority report, Investigation into the content of on-line services, and the report by the Australian Coalition of Service Industries, australia.com: Australia's Future Online, also consider issues relevant to copyright reform in the on-line environment.
5.4 Since the release of the CCG report, a number of other countries have established expert groups and advisory committees to examine the way in which intellectual property laws need to be reformed to remain relevant in the new digital age. This Appendix simply notes a number of key reports released by, and other developments in, selected countries.
Domestic developments
CLRC Computer Software Protection report
5.5 The CLRC report Computer Software Protection made a number of recommendations in relation to the reform of copyright to update copyright standards to take into account technological developments.
Liability of database operators
5.6 The Computer Software Protection report considered the possibility of a database operator being liable for authorising copyright infringement in certain circumstances. These included circumstances in which a database operator networked a database that included copyright material to subscribers and a subscriber downloaded a copy of the copyright material without the copyright owner's permission.
5.7 The CLRC recommended that the Act should be amended to provide that the networking of a database, including copyright material, would not of itself amount to authorisation of the making of any hard copies of the copyright material in the database by subscribers to the database without the permission of the copyright owner. The CLRC recommended that this exception from liability for authorising infringement of copyright for database operators should only apply in circumstances in which the database operator arranged for a message to advise subscribers of their copyright liability for such reproduction.
Exceptions for libraries
5.8 The CLRC Computer Software Protection report recommended that the exceptions provisions in the Act (ss.49 and 50) that permit libraries to make copies in certain circumstances should be extended to permit libraries to make electronic copies. In this regard, the CLRC recommended that the existing copying exceptions for libraries should be extended to include the electronic transmission of a copy stored in digital form and the loan of an electronic copy of a work stored in digital form such as on a floppy disk.
Screen displays
5.9 The CLRC considered evidence that it received in relation to whether screen displays should be afforded specific protection by the Copyright Act. The Law Council of Australia submitted to the CLRC that to afford copyright protection to a screen display would be tantamount to affording protection to the "look and feel" of a computer program. The CLRC agreed that some displays are an aspect of a computer program's behaviour. Having considered all the submissions on this issue, the CLRC did not recommend in any additional protection for screen displays.
Program locks
5.10 The CLRC recommended in the Computer Software Protection report that owners of copyright and their exclusive licensees should have the right to prevent the commercial manufacture, importation, distribution and possession for commercial purposes of devices which are designed to facilitate the unauthorised circumvention of locks or other devices applied to protect computer programs from unauthorised copying.
CLRC simplification reference - issues papers on exceptions provisions
5.11 The Copyright Law Review Committee is currently working on its reference to advise on simplifying the Copyright Act. The Committee has commenced its consideration by examining the exceptions provisions in the Act.
5.12 It should be noted that the CLRC is not due to report until June 1998 and has made no recommendations arising out of its work to date.
Exceptions for fair dealing
5.13 The Committee has released five issues papers. In its February 1997 issues paper Simplification of the Fair Dealing Provisions in the Copyright Act 1968, the CLRC canvassed a range of possible approaches, including raising the option of adopting a US fair use approach to exceptions in the Act.
5.14 Copyright owners have argued that there can be no such concept as "fair" dealing exceptions in the on-line environment. On the other hand, users of copyright, such as educational institutions (eg, schools, universities) and libraries have strongly argued that the same exceptions that operate in the hard copy environment should be carried over into the on-line environment.
Exceptions for libraries
5.15 In April 1997, the CLRC released an issues paper, Copying by Libraries and Archives under the Copyright Act 1968, as part of its consideration of its terms of reference to simplify the Copyright Act.
5.16 The CLRC paper summarised the provisions in the Copyright Act which permit copying by libraries and archives without infringing copyright as follows:
5.17 The CLRC paper raised a number of issues for consideration. These issues included whether the provisions in the Act which exempt certain copying by libraries from copyright infringement should be extended to include exceptions for electronic copying, eg, to extend to copies made in the course of "browsing" copyright material stored electronically and temporary copies made in the course of an electronic transmission process.
5.18 The CLRC issues paper on the exceptions provisions for libraries noted that the CLRC report, Computer Software Protection, had made recommendations in relation to the extension of ss.49 and 50 in the Copyright Act. However, the CLRC issues paper sought no further comment on this issue in light of the fact that the Government is currently considering its response to the Computer Software Protection report. Indeed, the proposals put forward in Part 4 in this paper in relation to the copying exceptions for libraries to an extent, overlap with the recommendations made in the Computer Software Protection report.
Developments in other countries
5.19 The release of the CCG report in August 1994 saw Australia take a leading role in examining reform of the law needed to update copyright standards and address the challenges to copyright laws posed by the impact of new technologies.
5.20 As the focus of this paper is the implementation of international standards in Australian law, this paper simply notes that a number of other countries have released reports considering similar issues. These reports include:
5.21 As noted in Part 3, the centrepiece of the two new WIPO treaties is the so-called "digital agenda". Some jurisdictions, including Japan and Hong Kong, have already introduced legislation implementing this new package of international copyright standards designed to update copyright standards for the new communications environment.
5.22 A Bill in relation to the limitation of on-line copyright liability has been recently introduced into the US Congress by Representative Howard Coble. The US Government has not expressed a view on this Bill, which would provide for a wide exemption from on-line copyright liability for many ISPs.