eNews on Copyright

THE AGD e-NEWS ON COPYRIGHT

Issue 34 – December 2004

Welcome to the third edition of the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department for 2004.

An HTML version of this newsletter with formatting and links is also available online at: http://www.ag.gov.au/copyrightenews/latest.

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: Nelson de Sousa, Legal Officer, nelson.desousaATag.gov.au

WHAT’S IN THIS ISSUE?

  1. Copyright responsibility under the Administrative Arrangements Order 26 October 2004
  2. Relocation of the Copyright Law Branch within the Attorney-General’s Department
  3. Government copyright priorities under "Strengthening Australian Arts"
  4. Exchange of letters fixing entry into force of the AUSFTA
  5. Commencement of US Free Trade Agreement Implementation Act 2004 (Cth)
  6. Copyright Legislation Amendment Act 2004 (Cth)
  7. Copyright Amendment Regulations 2004
  8. World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Geneva, 1-5 November 2004
  9. WIPO Standing Committee on Copyright and Related Rights, Geneva, 17-19 November 2004
  10. IP Academy of Singapore seminar "The case for and against database rights", 22 November 2004
  11. Copyright Law Review Committee inquiry on Crown Copyright granted an extension until 4 March 2005
  12. Tabling in Parliament of the 2003-2004 Screenrights and Copyright Agency Limited (CAL) annual reports

Go to the end of the e-News for answers to the following questions:

1. Copyright responsibility under the Administrative Arrangements Order (AAO) 26 October 2004

The AAO sets out which Ministers are responsible for all Acts of the Australian Parliament. Under the AAO of 26 October 2004, the Attorney-General has sole responsibility for the Copyright Act 1968 (Cth) (the Act). Since 1996, the Department of Communications, Information Technology and the Arts (DCITA) has shared responsibility with the Attorney-General's Department (AGD) for most copyright policy matters. However, AGD will now have sole responsibility for copyright policy matters.

The Commonwealth Copyright Administration (CCA) which is the Commonwealth’s licensing function for published works is transferring from DCITA to AGD under the new arrangements. The primary responsibility for the CCA is to respond to requests to reproduce or communicate published Crown copyright materials. It also provides a public contact point for information about Commonwealth copyright administration.

2. Relocation of the Copyright Law Branch within the Attorney-General’s Department

Following a recent restructure within AGD, a new Division, the Information Law and Human Rights Division, has been created to bring together copyright, information law (privacy and freedom of information) and human rights. Ms Helen Daniels will remain the branch head of the Copyright Law Branch with Ms Philippa Lynch appointed as the new division head.

3. Government copyright priorities under "Strengthening Australian Arts"

The Coalition Government election 2004 policy document "Strengthening Australian Arts" is available at: http://www.liberal.org.au/2004_policy/ACF3D10.pdf. Under this policy document the Coalition Government made several commitments to review and amend the Act.

The areas of copyright reform include the following:

The feasibility of extending the current legal deposit scheme to include audiovisual and electronic material with the National Film and Sound Archive as a deposit institution will also be examined.

4. Exchange of letters fixing entry into force of the Australia-United States Free Trade Agreement (AUSFTA)

On 18 November 2004, the Minister for Trade, the Hon. Mark Vaile MP, announced that the Australian and United States governments had exchanged diplomatic notes certifying that each had made the necessary domestic arrangements to allow the AUSFTA to be implemented on 1 January 2005.  The notes and associated letters that were exchanged between Mr Vaile and the United States Trade Representative, Mr Robert Zoellick, can be accessed at:

http://www.dfat.gov.au/trade/negotiations/us.html

These necessary domestic arrangements included passage of the US Free Trade Agreement Implementation Act 2004 (USFTAI Act). This Act contains extensive copyright amendments including economic and moral rights for performers, extension of the term of protection by 20 years, implementation of a scheme for limitation of remedies available against carriage service providers, wider range of criminal offence provisions, protection against a wider range of unauthorised reproductions and wider civil remedy and criminal offence provisions relating to encoded program carrying signals.

The USFTAI Act passed Parliament on 13 August 2004 and received assent on 16 August 2004.  It can be accessed at:

http://scaleplus.law.gov.au/html/comact/12/6876/top.htm

5. Commencement of US Free Trade Agreement Implementation Act 2004 (Cth)

Most of the copyright amendments in the USFTAI Act will commence on 1 January 2005.  Amendments relating to performers' moral rights will commence on the day on which the World Intellectual Property Organisation's (WIPO) Performances and Phonograms Treaty comes into force for Australia.  Under the USFTAI Act, the Attorney-General must announce by notice in the Gazette the day on which the Treaty comes into force for Australia.

6. Copyright Legislation Amendment Act 2004 (Cth)

The Copyright Legislation Amendment Bill 2004 was introduced in the Parliament on 30 November 2004.  The Bill and Explanatory Memorandum can be accessed at:

http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1825&TABLE=BILLS

http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1882&TABLE=EMS

The legislation passed the Parliament on 9 December 2004 and received assent on 15 December 2004. The Copyright Legislation Amendment Act 2004, No. 154, 2004 contains various minor and clarifying amendments to the Act and the USFTAI Act. 

In addition to amendments relating to the extension of the term of copyright protection in the USFTAI Act, the Amendment Act makes a number of amendments to provisions of the Act relating to criminal offences, presumptions, the exception to the reproduction right, and the scheme for limitation of remedies available against carriage service providers.

7. Copyright Amendment Regulations 2004

The amendments made to the Act by the USFTAI Act and the Copyright Legislation Amendment Act 2004 detail the nature of the limitations on remedies and set out the conditions that must be satisfied by a carriage service provider, in relation to certain online activities, before the limitations apply.

The Copyright Amendment Regulations 2004 amend the Copyright Regulations to provide procedures that form part of the conditions that must be satisfied by carriage service providers who intend to take advantage of the scheme. The amendments made by the Regulations include:

The Copyright Amendment Regulations 2004 were Gazetted on 23 December 2004 and will come into effect on 1 January 2005. There were also minor amendments made to the Copyright Tribunal (Procedure) Regulations and the Copyright (International Protection) Regulations as a result of the passage of the USFTAI Act.

These regulations can be accessed at http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/numrul/20/10435

8. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Geneva, 1-5 November 2004

AGD participated in the Australian delegation (with IP Australia and DFAT) at the 7th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in Geneva from 1-5 November 2004. The meeting was attended by delegates from 104 member states, 20 intergovernmental organizations and 45 non-governmental organizations.

The meeting considered a set of draft provisions outlining policy objectives and core principles for the protection of traditional knowledge and traditional cultural expressions against misappropriation and misuse. WIPO invited written comments on the existing draft proposals by 25 February 2005. The updated proposals will then be circulated for further consultation in advance of the next session of the IGC. (Texts of the initial proposals are available as Annex I of documents WIPO/GRTKF/IC/7/3 and WIPO/GRTKF/IC/7/5, available at http://www.wipo.int/tk/en/.)

The Committee also extensively reviewed arrangements for enhancing the role of indigenous and local communities in its work.

The next session of the IGC is scheduled for June 2005.

9. WIPO Standing Committee on Copyright and Related Rights, Geneva, 17-19 November 2004

The 12th session of the WIPO Standing Committee on Copyright and Related Rights met in Geneva on 17-19 November 2004 to consider further a draft treaty to update international standards of intellectual property protection of broadcasts. Australia was represented by a delegation from AGD and DCITA. There was a constructive discussion of outstanding issues raised by a revised draft treaty text prepared by the Chairman; the main divisive issue still is whether the treaty should extend protection to webcasting. However, the close of the meeting was marred by procedural wrangling, and the Chairman called for a show of hands which strongly supported adoption of his draft conclusions, aspects of which had been challenged. The WIPO press release on the outcome of the meeting can be accessed at: http://www.wipo.int/pressroom/en/

10. The IP Academy of Singapore seminar "The case for and against database rights", 22 November 2004

The IP Academy of Singapore hosted a seminar on 22 November 2004 on "The case for and against database rights". It was co-hosted by Fordham University Law School of New York and the Intellectual Property Research Unit of Queen Mary, University of London. Australia was well represented, as Professor Michael Blakeney was the co-chair on behalf of Queen Mary College and Dr Kimberlee Weatherall, Associate Director of IPRIA in Melbourne, and Chris Creswell, copyright law consultant to the Copyright Law Branch, were invited speakers. The day included very interesting presentations on the EC databases directive and recent decisions on its interpretation by the European Court of Justice. Another presentation gave a very valuable insight into the background to the failure of the US Congress to enact legislation on the protection of databases, despite repeated introduction of bills for that purpose since the decision of the US Supreme Court in the Feist case.

11. Copyright Law Review Committee inquiry on Crown Copyright granted an extension until 4 March 2005

The Copyright Law Review Committee (CLRC) is currently inquiring into the appropriateness of the law relating to government ownership of copyright material. The CLRC was to report to the Attorney-General by 4 December 2004, but has been granted an extension until 4 March 2005.

In February 2004 the CLRC published an Issues Paper and invited public submissions. The Committee has received an unexpected level of interest in the reference, with a total of 77 submissions received from peak copyright industry bodies, the library sector, publishers, Commonwealth and State departments and agencies, professional bodies and private individuals.

In July and August, the CLRC conducted a public forum in Sydney and consultations in Melbourne and Perth. The forum and consultations were an opportunity for the CLRC to meet with stakeholders and further explore issues raised in the submissions. The Committee’s Issues Paper, discussion paper for the public consultations and most of the submissions are available on the CLRC website: http://www.clrc.gov.au/agd/www/Clrhome.nsf/HeadingPagesDisplay/Present+Inquiries?OpenDocument.

For further information contact the CLRC Secretariat: clrc.secretariat@ag.gov.au.

12. Tabling in Parliament of the 2003-2004 Screenrights and Copyright Agency Limited (CAL) annual reports

On 30 November 2004 the 2003-2004 annual reports of Screenrights and CAL were tabled in both Houses of Parliament as required under the Act.

WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?

There have been a few staff changes in the Branch. Ms Louise Gell, Director of the CLRC Secretariat will be returning to the Department of the Senate in late January. Ms Kirsti Haipola is on a six month inter-departmental transfer DCITA. Mr Dilan Thampapillai is on a six month transfer to the Australian Government Solicitor. Nelson de Sousa, Legal Officer of the CLRC Secretariat, will be leaving the Department early in 2005 to take up a position at the Australian Film Commission. Ms Yonnie Fung is leaving the Department in January 2005. Two new graduates, Ms Pam Foo and Ms Emma Williams, will be joining the Branch in early 2005.

International and Projects Section

Contact: Chris Creswell, tel: (02) 6250 6312; e-mail: chris.creswellATag.gov.au

New Technologies Section

Contact: Gabrielle Mackey, tel (02) 6250 6608; e-mail: gabrielle.mackeyATag.gov.au

Trade and Enforcement Section

Contact: Fiona Phillips, tel (02) 6250 6658, e-mail: fiona.phillipsATag.gov.au

Copyright Law Review Committee Secretariat

Contact: Nelson de Sousa, tel (02) 6250 6713, e-mail: nelson.desousaATag.gov.au

The head of the Copyright Law Branch is Helen Daniels, Assistant Secretary. She can be contacted on 6250 6313, e-mail: helen.danielsATag.gov.au.

Mr 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 6655; fax: (02) 6250 5929; e-mail: copyrightlawbranch@ag.gov.au.

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 6655.  The updated version is available online here.

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/.

Information on the Copyright Law Review Committee, including copies of past reports, is available at http://www.ag.gov.au/clrc.

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