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 t