THE AGD e-NEWS ON COPYRIGHT
Issue 39 – May 2006
Welcome to the first edition of the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department for 2006.
An HTML version of this newsletter with formatting and links is also available online at http://www.ag.gov.au/enews.
You may forward this newsletter to friends and colleagues. When quoting from this newsletter, please provide an acknowledgment of source.
Information on how to subscribe or unsubscribe is included at the end of the newsletter.
e-News editor: Melanie Yap, melanie.yapATag.gov.au
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WHAT’S IN THIS ISSUE?
1. Major Reforms to Australia’s Copyright Regime
a. Fair Use Review
b. Changes to legislative cap on broadcast licence fees
c. Copyright Tribunal: Jurisdiction and Procedures
d. Government’s response to Digital Agenda Review
e. New copyright enforcement measures
2. Government’s decision not to introduce a resale royalty scheme
3. Free Trade Agreement negotiations
4. Whole of Government approach to intellectual property management
5. World Intellectual property Organisation Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
6. World Intellectual Property Organisation Standing Committee on Copyright and Related Rights
Go to the end of the e-News for answers to the following questions:
• Who do I contact in the Copyright Law Branch?
• Where can I get more information about copyright?
• How can I subscribe to this newsletter?
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1. Major Reforms to Australia’s Copyright Regime
The Attorney-General has announced that there will be major reforms to Australia’s copyright regime with the goal of creating a a tougher regime for copyright pirates, while ensuring the law is fairer for consumers, cultural and educational institutions.
The reforms are guided by the following principles:
• To keep pace with developments in technology and rapidly changing consumer behaviour
• To allow consumers to use and enjoy technology and copyright material
• Not to harm or discourage development of new digital markets by copyright owners
• Maintain Australia’s unique copyright regime
• Ensure copyright laws are not brought into disrepute by technical and out of date provisions
• Ensure that copyright law is able to adequately tackle piracy
• To support copyright industries
a. Fair Use and Other Copyright Exceptions Review
The Government made an election commitment to examine whether Australian copyright law should include an exception based on principles of fair use which would facilitate the public’s access to copyright material in the digital environment.
The Attorney-General’s Department published an Issues Paper on Fair Use and other Copyright Exceptions in May 2005 to facilitate public consultation.
Following the public consultation process and further consultation with key stakeholders, the Government has decided not to adopt a US style open-ended fair use exception. Most Australian copyright interests favour retaining Australia’s system of specific exceptions. There is concern that radical change could cause confusion, uncertainty and increased litigation. Further there is a question whether an open-ended fair use provision would comply with Australia’s treaty obligations.
As a result, the Government has decided to retain the regime of specific exceptions. It will introduce several new specific exceptions including:
• New exceptions for consumers, and
• New flexible dealing exception.
New exceptions for consumers
Two new exceptions will be introduced to allow people more flexibility in using technology to enjoy copyright material they have legitimately purchased or accessed.
The first private use exception will enable consumers to record television and radio programs to view or listen to at a later time (known as ‘time-shifting’). This exception will not allow a recording to be used to build up a 'library' or to be distributed to others.
The second exception will permit a person who has purchased a legitimate copy of some categories of copyright material to make a copy in a different format. In particular, this exception will allow individuals to store their personal music collection recorded on CDs, audio tapes or vinyl records in the memory of an MP3 players or home entertainment personal computer. It will also allow people to scan a newspaper article in a paper they have purchased and save it on their computer (although they will not be able to upload it onto the Internet). People will also be able to dub their old VHS cassettes on to a DVD.
A number of Questions and Answers on these two exceptions are available here.
Review of format-shifting in two years
The Attorney-General has noted that consumers may want to use technology to copy audio-visual material (eg DVDs they have bought) to other devices as well. The scope of the format shifting exception will be reviewed in two years time to see whether the scope can be expanded to digital audio-visual materials in a way which complies with our international obligations.
New flexible dealing exception
The present exceptions and statutory licences that allow copyright material to be used for purposes that benefit the wider public interest will be broadened.
In particular, the Government supports the adoption of a more flexible exception that will allow for:
• non-commercial uses by libraries, museums and archives,
• non-commercial uses by educational institutions for the purpose of teaching,
• non-commercial uses for the benefit of people with disabilities, and
• parody and satire.
It will be made clear that the new extended dealing exception will not apply to uses where an existing exception or statutory licence already operates. It will also be provided that any use falling within this exception must comply with the standards in Australia’s treaty obligations. That is, the use must be a certain special case that does not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the copyright owner.
Exposure draft
The Government will consult with stakeholders on an exposure draft Bill prior to introducing these reforms in to Parliament. The Bill is likely to be introduced in the Spring sittings of Parliament.
b. Changes to legislative cap on broadcast licence fees
The Government has decided to remove the one per cent legislative cap on payments made by commercial radio stations for broadcasting published sound recordings. The one per cent cap will be retained for community radio broadcasters.
The one per cent cap was adopted in 1968 to protect radio broadcasters because they faced special economic difficulties at that time. The Government believes sound recording copyright owners and commercial radio broadcasters, should be able to negotiate a market rate without legislative intervention. If they cannot reach agreement, either party can ask the Copyright Tribunal to arbitrate a fair payment like other copyright owners and users.
The Attorney-General's Department published a Discussion Paper on retention of the one per cent cap in February 2005. The Discussion Paper is available here.
c. Copyright Tribunal: Jurisdiction and Procedures
The Government will be introducing amendments in response to the report of the Copyright Law Review Committee (CLRC): 'Jurisdiction and Procedures of the Copyright Tribunal' dated December 2000. These changes will give the Tribunal a wider jurisdiction to deal with disputes concerning copyright licence schemes and 'transactional' licences that are collectively administered (ie administered by a collecting society). Pursuant to the Government's decision on the Ergas Committee Report, the Tribunal will be able to take into account guidelines on licences being developed by the ACCC.
d. Government’s Response to Digital Agenda Review
The Attorney-General also announced on 14 May 2006 that the Government had completed the review of the 2001 Digital Agenda copyright reforms. The review included consideration of recommendations made by Phillips Fox in its 2004 report. The Government's consideration of these recommendations took account of the fact that some of the Phillips Fox recommendations were superseded by subsequent developments, particularly the implementation of the Australian-United States Free Trade Agreement copyright obligations. In other cases, issues considered by Phillips Fox were also incorporated into the Fair Use and Other Copyright Exceptions Review.
The Government's response includes proposals to amend the exceptions applicable to libraries and archives to enable them to conduct their functions more efficiently but without unreasonably prejudicing the legitimate interests of copyright owners. There are also some amendments proposed to the educational statutory licences to better reflect the needs of educational institutions and copyright owners when dealing with online material. For example, the status of temporarily cached copies of materials used by educational institutions and the use of distributed technologies for classroom teaching will be clarified. The Copyright Act will also be amended to clarify that Internet browsing does not fall within the communication right.
The Government’s response is available here.
Legislation
The new measures will provide a range of enforcement options for law enforcement officials to utilise in responding to piracy. In addition to court proceedings, they will be able to issue on-the-spot fines and utilise proceeds of crime legislation to track proceeds gained from committing copyright offences.
There will be other amendments to the Copyright Act to assist copyright owners and prosecutors in court proceedings. These amendments will:
• strengthen evidential presumptions relating to copyright ownership and subsistence,
• introduce a film specific evidential presumption to apply in civil cases to labelling practices of commercially released films,
• allow a court to grant relief to copyright owners in the case of large scale Internet infringements where it is not practical for the copyright owner to prove every single act of infringement, and
• make it clear that electronic reproductions or copies of copyright material can be the subject of civil infringement proceedings.
Other copyright enforcement measures
The Government has established an Interdepartmental Committee on Enforcement to consider intellectual property enforcement issues. There will continue to be close cooperation on copyright enforcement issues between Australian Government agencies, Federal and State law enforcement bodies, Customs and industry through the work of the Intellectual Property Enforcement Consultative Group.
There have also been Government initiatives to promote public awareness about IP rights through its websites. For example, information for travellers on pirated and counterfeit material was included in the latest edition of Hints for Australian Travellers. That publication can be accessed at the Smart Traveller website.
The Attorney-General’s Department and IP Australia have also commissioned the Australian Institute of Criminology to undertake research on the nature and extent of piracy and counterfeiting in Australia.
This will provide the Government with more reliable data on the extent to which intellectual property (IP) crime exists, the impact it has on small business and employment, and the effectiveness of the public law and enforcement response. The AIC is scheduled to provide a report to the Attorney-General’s Department and IP Australia by the end of October 2006. The outcomes of this research will help inform the Government’s response to IP crime in the future.
2. Government’s decision not to introduce a resale royalty scheme
After careful consideration and consultation with stakeholders, the Attorney-General and the Minister for the Arts and Sport jointly announced that a resale royalty scheme would not be introduced in Australia. Instead a $6 million initiative to support visual artists was announced in the 2006–07 Budget. The press release can be viewed here.
This year, Australia has there has been negotiating rounds with China in February, March and May with the United Arab Emirates (UAE) and Malaysia in March and the ASEANs and New Zealand in April. Further negotiating rounds for each FTA are also scheduled for the coming months.
Australia has also commenced investigating its economic relationship with both Japan and Mexico the possibility of negotiating an FTA with either of these countries. DFAT is calling for submissions on Australia’s economic relations with Mexico by June 2006.
In June 2006, DFAT is planning to convene another meeting of the IP Consultative Group to discuss with stakeholders IP issues in current FTA negotiations. Stakeholders are also encouraged to raise any copyright-related FTA issues directly with DFAT or with the Copyright Law Branch.
Information in relation to Australia’s existing FTAs (with New Zealand, Singapore, Thailand and the United States) and the negotiations currently underway with China, Malaysia, the UAE and New Zealand and the 10 ASEAN countries is available on the DFAT website. Interested persons can also subscribe to DFAT’s free email newsletters that provide updated information on each of the current FTAs. A list of FTA-related websites follows:
• Website on concluded FTAs: <http://www.fta.gov.au>
• Newsletters on Australia’s FTAs with the United States and Thailand: <http://www.fta.gov.au/Default.aspx?ArticleID=1253>
• Australia-ASEAN-New Zealand FTA negotiations: <http://www.dfat.gov.au/trade/fta/asean/index.html>
• Australia-China FTA negotiations: <http://www.dfat.gov.au/geo/china/fta/>
• Australia-UAE FTA negotiations: <http://www.dfat.gov.au/geo/uae/fta/index.html>
• Australia-Malaysia FTA negotiations: <http://www.dfat.gov.au/geo/malaysia/fta/index.html>
• Australia-Japan FTA Feasibility Study <http://www.dfat.gov.au/geo/japan/fta/index.html>
• Australia-Mexico Economic Relations <http://www.dfat.gov.au/geo/mexico/fta/index.html>
4. Whole of Government Approach to Intellectual Property Management
Progress is being made to develop a whole of government approach to management of intellectual property in response to recommendations of the Australian National Audit Office (ANAO) and a government commitment to review the Commonwealth IT IP Guidelines. The whole of government approach is being developed in two stages:
Statement of IP Principles - the statement will articulate the Government’s approach to IP use and management in broad terms including the contribution made by commercialisation of IP to the Government’s innovation policy.
IP Better Practice Manual – the Manual will provide guidance and advice on the implementation of the Statement of IP Principles The IP Better Practice Manual will incorporate revised and updated content from the IT IP Guidelines, thereby replacing that publication as an expression of current government policy in relation to IP in IT.
The 9th Session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was held in Geneva from 24-28 April 2006. The Australian delegation included representatives from IP Australia, the Attorney-General's Department and the Department of Communications, Information Technology and the Arts.
The IGC discussed draft papers which outlined possible objectives and principles for the protection of traditional cultural expressions/expressions of folklore, traditional knowledge and genetic resources. The tenth session of the IGC will be held in December 2006. Documents considered at the ninth session and decisions reached by the IGC can be viewed here.
6. World Intellectual Property Organisation Standing Committee on Copyright and Related Rights
The 14th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCRR) met in Geneva on 1-5 May 2006 to consider further a draft treaty to update international standards of intellectual property protection of broadcasts. Existing protection is in the Rome (Neighbouring Rights) Convention of 1961, which does not cover satellite, cable or Internet transmission. The draft treaty merges a number of proposals by individual countries, including the USA and Japan, and one by the EC. After a substantial and constructive discussion of the proposed new rights and exceptions in the draft treaty, the SCCRR decided to meet again in September with a view to reaching agreement on a draft so as to enable the WIPO General Assembly, meeting later that month, to approve scheduling a diplomatic conference in 2007 to consider adopting it. The SCCRR also decided that protection of webcasting should be excluded from the treaty and separately considered at another meeting of the SCCRR in November. That meeting would further analyse the nature of webcasting and who should be the beneficiaries of protection, if agreed on, under a possible separate webcasting treaty.
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WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
International and Projects Section
- Co-ordination of work on the implementation of the copyright aspects of the Australia–US Free Trade Agreement
- Australia’s participation in WIPO activities
- Broadcast royalties for sound recordings
- CLRC Report into the Jurisdiction and Procedures of the Copyright Tribunal
- Collective administration of copyright
- CLRC Report on Crown Copyright
- Ergas Report - Review of intellectual property legislation under the Competition Principles Agreement
- Fair Use and Copyright Exceptions Review (contact: Norman Bowman, tel: (02) 6250 6324; email: norman.bowmanATag.gov.au)
- Film directors' rights
- Hague Convention work
- International copyright regulations
- Moral rights
- Performers' rights
- Term of copyright protection
- Statutory licences and related issues
Contact: Chris Creswell, tel: (02) 6250 6312; e-mail: chris.creswellATag.gov.au
New Technologies Section
- Australia-US Free Trade Agreement obligations relating to technological protection measures (contact: Peter Treyde, tel: (02) 6250 6788, e-mail: peter.treydeATag.gov.au)
- Carriage service providers scheme
- Circuit Layouts Act
- Copyright and designs overlap
- Copyright Tribunal appointments
- CLRC Report on Copyright and Contract
- CLRC Reports into Simplification of the Copyright Act
- Government response to Digital Agenda Review
- Government use of copyright
- Review of legal deposit
- Review of pay tv piracy
Contact: Gabrielle Mackey, tel (02) 6250 6608; e-mail: gabrielle.mackeyATag.gov.au
Trade and Enforcement Section
- Australian Institute of Criminology research project
- Bilateral and regional copyright issues (including proposed new free trade agreements and APEC work)
- Copyright and trade
- Copyright aspects of other intellectual property legislation
- Enforcement issues
- IP and protection of arts and cultural expressions of Indigenous people
- WTO copyright issues
- Resale royalty
- Review of the criminal offence provisions
Contact: Fiona Phillips, tel (02) 6250 6658, e-mail: fiona.phillipsATag.gov.au
Commonwealth Copyright Section
- ANAO report on intellectual property policy and practices in Government
- Commonwealth Copyright Administration - http://www.ag.gov.au/cca
- Government practice in management of copyright materials, including copyright in IT systems
- Whole of Government approach to intellectual property management Contact: Peter Ostergaard, tel (02) 6250 6380, e-mail: peter.ostergaardATag.gov.au
The head of the Copyright Law Branch is Helen Daniels, Assistant Secretary. Ms Daniels can be contacted on (02) 6250 6313, e-mail: helen.danielsATag.gov.au.
Tim MacKinnon is responsible for copyright matters in the office of the Attorney-General, the Hon Mr Philip Ruddock MP, please phone: (02) 6277 7300.
For general enquiries telephone (02) 6250 6313; fax: (02) 6250 5929; e-mail: copyrightlawbranch@ag.gov.au.
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WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?
The Copyright Law Branch website is at < http://www.ag.gov.au/copyright >.
The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. To obtain copies of the guide please phone (02) 6250 6313. The updated version is available online at http://www.ag.gov.au/copyright/shortguide.
Past publications including discussion papers and fact sheets on a variety of issues, are also available online here.
The Copyright Law Branch does not give legal advice to members of the public. The Copyright Law Branch can provide federal Government departments and agencies with legal advice on copyright law matters.
Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at http://www.copyright.org.au/.
For information on patents, trade marks and designs contact IP Australia on tel: 1300 651 010 or access information online at http://www.ipaustralia.gov.au/.
Reports of the Copyright Law Review Committee are available at http://www.ag.gov.au/clrc.
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