Australian Government Attorneys General's Department

THE AGD e-NEWS ON COPYRIGHT

Issue 40 – September 2006

Welcome to the this special edition of the AGD e-news on copyright.

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e-News editor: Lauren Henschke, lauren.henschkeATag.gov.au

WHAT’S IN THIS ISSUE?

This e-news provides an update on the progress of implementation of the technological protection measures (TPM) obligation in Article 17.4.7 of the Australia–United States Free Trade Agreement (AUSFTA). Australia has until 1 January 2007 to implement this obligation.

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?

Public Release of the technological protection measure provisions of the Copyright Amendment Bill 2006

An exposure draft of the technological protection measure (TPM) provisions of the Copyright Amendment Bill 2006 is now available for public consultation. The Attorney-General’s media release of 4 September 2006 announcing the release can be found at the Attorney-General Philip Ruddock's website. You can find a copy of the draft Bill and a short summary on the Attorney-General’s Department Homepage under ‘current issues’ or by following this link to the Copyright Law Branch publications page.

Comments on the TPM provisions of the draft Bill should be sent to the Attorney-General’s Department by close of business 22 September 2006:

E-mail: copyrightlawbranchATag.gov.au
Copyright Law Branch
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

Enquires should be directed to Kirsti Haipola (02) 6250 5418 or kirsti.haipolaATag.gov.au

The Bill implements obligations arising from the Australia-United States Free Trade Agreement, which must be implemented by 1 January 2007. The Attorney-General plans to introduce these amendments into Parliament in mid-October 2006 at the same time as other wide-ranging reforms to the Copyright Act 1968 that were announced on 14 May 2006 (see here for further information). The Attorney-General has agreed that these other reforms will also be released as an exposure draft. This will occur in the near future.

Exposure Draft of Amendments to the Copyright Regulations

The Government will also release for public comment the draft amendments to the Copyright Regulations which will include the additional exceptions to the new technological protection measures (TPM) scheme (as provided for in Article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement). The necessary Regulations are currently being finalised and will be released shortly. Please check the Attorney-General’s Department home page for their release.

It is anticipated that the following exceptions to the TPM scheme will be included in the Regulations:

reproduction of computer programs to make interoperable products (as authorised by section 47D of the Copyright Act 1968 in as far as it applies to articles)
the reproduction and communication of copyright material by educational and other institutions assisting people with disabilities (as authorised by Part VB, Divisions 1-3 of the Copyright Act 1968)
the reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes (as authorised by sections 49, 50, 51A, 110A and 110B of the Copyright Act 1968)
the inclusion of sound recordings in broadcasts and the reproduction of sound recordings for broadcasting purposes (as authorised by sections 107 and 109 of the Copyright Act 1968)
access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided, and
access where a TPM damages a product, or where circumvention is necessary to repair a product.

Further Review of Exceptions to the Technological Protection Measure Scheme

The Government has asked the Attorney-General’s Department to conduct a limited further review of some possible additional exceptions to the TPM scheme. The Department is calling for submissions and any further evidence in support of granting the following exceptions to the TPM scheme as identified in the Review of TPM Exceptions (February 2006) by the House of Representatives Standing Committee on Legal and Constitutional Affairs:

An exception to allow circumvention of TPMs to gain access for making back-up copies of computer programs
An exception to allow circumvention of TPMs to gain access for the reproduction or adaptation of computer programs for correcting errors in computer programs
An exception to allow circumvention of TPMs to gain access for the reproduction and communication of works etc by institutions assisting persons with an intellectual disability
An exception to allow circumvention of TPMs to gain access for the inclusion of works in broadcasts and the reproduction of works for broadcasting purposes, and
An exception to allow circumvention of TPMs to gain access for fair dealing with copyright material by broadcasters for criticism, review or news reporting for purposes other than broadcasting.
The scope of the review is strictly limited to the cases outlined above. Submissions addressing issues beyond the scope of the review will not be considered.

To make a case for one of the exceptions identified above, and in order to comply with the criteria under the Australia-United States Free Trade Agreement, individuals or bodies seeking the exception must respond to all the criteria outlined in Attachment A.

Submissions will be assessed on the responses to these questions and the evidence provided in support of those responses. Submissions are due by 25 September 2006.

All submissions received will be published on the Attorney-General's Department website by 3 October 2006.

Following publication, there will be a three-week opportunity for comments and responses in reply to submissions received ending 24 October 2006.

Following receipt of submissions and any comments received in response, the Attorney-General’s Department will review the evidence and make recommendations to the Attorney-General as to whether there should be additional exceptions to the TPM scheme.

Where the case for an exception is made out the exception will be included in the Copyright Regulations.

Submissions should be sent to:
copyrightlawbranchATag.gov.au
or
Technological Protection Measures Exceptions Review,
Copyright Law Branch,
Attorney-General’s Department,
Robert Garran Offices,
National Circuit, BARTON ACT 2600.

Enquires should be directed to Peter Treyde (02) 6250 6788 or peter.treydeATag.gov.au.

Attachment A
Criteria to be addressed for reviews of additional exceptions

(A) Is the work, performance or phonogram for which an exception is being sought protected under the Copyright Act? If no, an exception is not required. If yes, proceed to (B).

(B) Can the non-infringing use which is asserted be made of the work, performance or phonogram under the Copyright Act?

a Is the use an infringement under the Copyright Act?
   i the answer is no, proceed to (C).
   ii If yes, proceed to b.

b Does an exception exist?
   i If the answer is yes, proceed to (C).
   ii If no, proceed to c.

c Does a statutory licence exist?
   i If the answer is yes proceed, to (C).
ii If the answer is no, the criterion is not met and an exception cannot be granted.

(C) Is the person or body seeking the exception able to make the non-infringing use of the work, performance or phonogram in question under the Copyright Act?

a Does the Copyright Act limit the non-infringing use to a certain type of user? (eg. Educational institutions)
i If the answer is yes, proceed to b.
ii If the answer is no, any person may seek the exception. Proceed to (D).

b Has the specific user or representative of the user sought an exception?
i If the answer is yes, proceed to (D).
ii If the answer is no, an exception cannot be granted.

(D) Has an access control TPM been applied to the work, performance or phonogram? (The person or body seeking an exception must show evidence that TPMs are currently being applied to the work, performance or phonogram that would be subject to the exception.)

i If the answer is yes, proceed to (E).
ii If the answer is no, an exception cannot be granted.

(E) Has the use of the TPM had an adverse impact on the non-infringing use by the person or body seeking the exception, or is it likely that it will have such an impact?   (Reasonably believeable evidence of such an impact needs to be shown to justify an exception.)

i If the answer is yes, proceed to (F).
ii If the answer is no, an exception cannot be granted.

(F) Would the exception impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of the TPM?

i If the answer is yes, an exception cannot be granted.
ii If the answer is no, an exception could be granted.

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
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

Government use of copyright

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
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

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.

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 6313; fax: (02) 6250 5929; e-mail: copyrightlawbranchATag.gov.au.

WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?

The Copyright Law Branch website is at: http://www.ag.gov.au and follow these links, The Department, Portfolio Responsibilities, Copyright Law.

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 at:
http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/RWP7B3B6A5CD28F19B5CA25704C001A5627
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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