THE AGD e-NEWS ON COPYRIGHT
Issue 35 – March 2005
Welcome to the first edition of the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department for 2005.
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: Angela Tsongas, angela.tsongasATag.gov.au
WHAT’S IN THIS ISSUE?
1. Australia-United States Free Trade Agreement - changes to Australian copyright law
2. Review of cap on royalties paid by radio broadcasters to copyright owners
3. Copyright Amendment Regulations 2005
4. Copyright Amendment (Film Directors’ Rights) Bill 2005
6. Working Paper: Proposed Hague Convention on Exclusive Choice of Court Agreements
7. Management and Administration of Commonwealth Copyright
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?
1. Australia-United States Free Trade Agreement – changes to Australian copyright law
The Australia-United States Free Trade Agreement (AUSFTA) came into force on 1 January 2005.
A number of amendments were made to Australia's copyright law in late 2004 to meet particular obligations under the AUSFTA. The main changes include the following:
- performers were given economic and moral rights in their sound recordings and moral rights in their live and recorded performances
- criminal offences were broadened to target copyright infringements undertaken for commercial advantage or financial gain and significant infringements on a commercial scale
- new provisions were introduced in relation to the unauthorised receipt and use or distribution of encoded broadcasts
- the term of protection for most copyright material was extended by 20 years
- a new scheme was introduced to limit remedies available against Carriage Service Providers who help copyright owners combat online piracy
- protection against a wider range of unauthorised reproductions was introduced
- protection for electronic rights management information was extended
Most of these changes came into effect on 1 January 2005. Click here for the latest consolidated versions of the Copyright Act 1968 and the Copyright Regulations.
Fact sheets on these changes to the law are available below.
- New Performers' Rights in Sound Recordings
- Amendments to Criminal Law Provisions
- Amendments to Encoded Broadcast Provisions
- Extension of Copyright Term
- Limitations on Remedies for Copyright Infringement Against Carriage Service Providers
- Exception for the Normal Use of Copyright Material
- Electronic Rights Management Information
2. Review of cap on royalties paid by radio broadcasters to copyright owners
On 1 February, the Government released a discussion paper requesting submissions on whether the one per cent cap on licence fees paid by commercial radio broadcasters for playing sound recordings should be repealed.
The review was foreshadowed in the Government's election policy "Strengthening Australian Arts".
Under the Copyright Act, a radio station that broadcasts a sound recording must generally pay a copyright royalty to the owner of the copyright in that recording. The amount payable by radio broadcasters is determined by negotiation between broadcasting industry associations and the licensing organisation representing copyright owners.
If agreement cannot be reached, the Copyright Act provides a statutory licence that permits broadcasters to continue to play recordings. But the amount payable by the broadcaster to the copyright owners is set by the independent Copyright Tribunal.
Section 152(8) of the Copyright Act currently prohibits the Copyright Tribunal from ordering a radio broadcaster to pay a licence fee that is more than one per cent of the broadcaster's gross income.
Submissions closed on 18 March 2005.
The discussion paper on the one per cent cap is available at www.ag.gov.au/onepercentcap
3. Copyright Amendment Regulations 2005
The Copyright Amendment Regulations 2005 (No 1) were signed by the Governor-General and lodged in the Federal Register of Instruments on 25 February 2005. They came into operation on 26 February 2005 (the day after the date on which the Instrument was lodged in that Register).
The Regulations are minor, but ensure that recent amendments to the Copyright Act to include reference to the rights of performers in Part VA are also reflected in the Copyright Regulations 1969 relating to the administration of the statutory licence under Part VA.
All regulations under the Copyright Act, including the new Regulations, can be accessed on-line here.
A direct link to the Copyright Amendment Regulations 2005 (No 1) is here.
4. Copyright Amendment (Film Directors’ Rights) Bill 2005
The Copyright Amendment (Film Directors' Rights) Bill 2005 was introduced in the House of Representatives on 17 March 2005. This Bill will, for the first time, recognise directors as having a share of the copyright in their films. As such they will be entitled to a share of the remuneration to be payable by subscription television broadcasters for retransmitting free-to-air broadcasts of their films (this is the activity covered by the Part VC statutory licence). The Bill has been adjourned for debate in the next sittings, which commence on 10 May 2005. The Bill and Explanatory Memorandum are available from the Parliament House website. Click here.
5. Attorney-General opens the Australian Centre for Intellectual Property and Agricultural Conference, ‘Copyright: New Futures, New Agenda’
The Attorney-General, the Hon Philip Ruddock MP, delivered the opening address at the Australian Centre for Intellectual Property and Agricultural Conference, ‘Copyright: New Futures, New Agenda’ in Brisbane on 18 February 2005. A copy of the Attorney-General’s address is available here.
6. Working Paper: Proposed Hague Convention on Exclusive Choice of Court Agreements
The August 2001 edition of e-news, provided an update on the then proposed Hague Convention on Jurisdiction and Enforcement of Judgments in Civil Matters.
Following several years of negotiations, that proposed multilateral treaty has now been significantly restricted in scope, revised, and renamed the Draft Convention on Exclusive Choice of Court Agreements. It is now drafted to apply only to business-to-business contracts which specify an exclusive choice of court. The proposed treaty is intended to provide for reciprocal enforcement of civil judgments by Member States in a range of civil and commercial matters.
As currently drafted, all forms of intellectual property have been excluded from the ambit of the Convention, with the exception of copyright, which will be covered by the Convention.
In respect of copyright, the effect of the current draft of the Convention (should it be adopted in its current form, and should Australia accede) would be that where a contract contains an exclusive jurisdiction clause, (ie nominates the courts (or a particular court) of a Member State), that court shall have exclusive jurisdiction in relation to matters under that contract. All other courts would be required to decline jurisdiction. Judgments obtained could be enforced in all other States who ratify the Convention. Certain exceptions apply. For example notwithstanding an exclusive jurisdiction clause nominating a foreign court, Australian courts could refuse to suspend or dismiss proceedings brought in Australia where it would 'lead to a serious injustice or be manifestly contrary to principles of public policy' (draft Art 7.1.(e)) They could also refuse to enforce a foreign judgment handed down under an exclusive jurisdiction clause for similar reasons (draft Art 9(1)(e)).
The Civil Justice Division of the Attorney-General's Department is conducting consultations on this Draft Convention and will make available this week a Working Paper. Interested parties are invited to make submissions on issues in relation to the application of the proposed Convention to copyright, bearing in mind the reduced scope of the Convention.
The Working Paper will be available from the Attorney-General’s Department’s web site at www.ag.gov.au under Publications.
Further information on the proposed Convention is also available from the website of the Hague Conference on Private International Law at http://www.hcch.net/index_en.php?act=progress.listing&cat=4.
7. Management and Administration of Commonwealth Copyright
The Commonwealth Copyright Administration (CCA) moved to the Attorney-General’s Department from the Department of Communications, Information Technology and the Arts (DCITA) on 1 March 2005. The CCA responds to requests from the public to reproduce Commonwealth copyright material and provides administrative advice on the management of copyright materials to Commonwealth agencies.
The CCA is located within the new Commonwealth Copyright Section of the Copyright Law Branch.
Further information about the CCA can be found at http://www.ag.gov.au/cca
WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
There have been a few staff changes in the Branch. Mr Bart Hoyle recently left the Branch to take up a new position in the International Crime Branch of the Attorney-General’s Department. Ms Kirsti Haipola returned to the Branch from a six month transfer at DCITA. Mr Dilan Thampapillai also returned to the Branch from a six month transfer to the Australian Government Solicitor. Ms Alice Ramsay, Ms Pam Foo and Ms Emma Williams joined the Branch in early March.
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
- Commonwealth copyright
- Ergas Report - Review of intellectual property legislation under the Competition Principles Agreement
- Film directors' rights
- Hague Convention work
- International copyright regulations
- Moral rights
- Performers' rights
- Private copying and fair use issues
- 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
- Circuit Layouts Act
- Copyright and designs overlap
- Copyright Tribunal appointments
- Digital Agenda Amendments Review
- E-commerce issues
- CLRC Report on Copyright and Contract
- CLRC Reports into Simplification of the Copyright Act
- 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
- 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
- Government use of copyright
- 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
- Government practice in management of copyright materials, including copyright in IT systems
Contact: Peter Ostergaard, tel (02) 6250 6380, e-mail: peter.ostergaardATag.gov.au
Copyright Law Review Committee Secretariat
Contact: Sam Ahlin, tel (02) 6250 6095, e-mail: sam.ahlinATag.gov.au
The head of the Copyright Law Branch is Helen Daniels, Assistant Secretary. Ms Daniels 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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