THE AGD e-NEWS ON COPYRIGHT

Issue 33 - July 2004

Welcome to the second 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 here.

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WHAT'S IN THIS ISSUE?

1. Introduction of the US Free Trade Agreement Implementation Bill 2004
2. Tabling in Parliament of WIPO Copyright Treaties
3. Re-appointments to the Copyright Tribunal
4. Update: Review of Digital Agenda Reforms
5. Copyright Law Review Committee Public Forum on Crown Copyright
6. WIPO update: Meeting of the Standing Committee on Copyright and Related Rights 7-9 June 2004
7. Resale Royalty Scheme - discussion paper
8. New Designs Law comes into force
9. Attorney-General opens Cinema Owners Conference

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. Introduction of the US Free Trade Agreement Implementation Legislation

The Minister for Trade, the Hon. Mark Vaile MP, introduced the US Free Trade Agreement Implementation Bill into Parliament on 23 June 2004. It was passed by the House of Representatives on 24 June 2004. The copyright amendments can be found at Schedule 9 of the Bill.

Schedule 9 introduces a range of amendments to the Copyright Act 1968 (Copyright Act) to give effect to Australia's obligations under Chapter 17 (Intellectual Property Rights) of the Australia - United States Free Trade Agreement ('the Agreement'). The Bill and Explanatory Memorandum can be accessed here.

The amendments to the Copyright Act cover the following areas:

• New rights - both economic and moral - for performers in sound recordings and live performances;
• Extension of the term of protection for most copyright material by 20 years;
• Alignment of the term of protection of photographs with other artistic works;
• Implementation of a scheme for limitation of remedies available against Carriage Service Providers (CSPs) for copyright infringement in relation to specified activities carried out on their systems and networks, providing certain conditions are satisfied;
• Wider criminal provisions, including for copyright infringement that is undertaken for commercial advantage or financial gain; or significant infringement on a commercial scale;
• New provisions in relation to the unauthorised receipt and use or distribution of encoded program carrying signals;
• Broader protection for electronic rights management information; and
• Protection against a wider range of unauthorised reproductions.

In addition to the amendments in Schedule 9, corresponding regulations will be made to implement some aspects of the limitation or remedies scheme for CSPs and in order for Australia to accede to the World Intellectual Property Organisation WIPO Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996 as required by the Agreement.

There is also a minor amendment made to the Telecommunications Act 1997 in relation to the scheme for CSPs.

Also related to the legislation are two Parliamentary reports - the report of the Joint Standing Committee on Treaties that can be accessed here, and the Interim Report of the Senate Select Committee on the Free Trade Agreement between Australia and the United States of America which can be accessed here. The final report of the Senate Select Committee is expected on 12 August 2004.

2. Tabling in Parliament of WIPO Internet Treaties

On 22 June 2004 the treaties and national interest analyses for Australia's accession to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were tabled in Parliament. Australia's accession to the WIPO Internet treaties is a significant step in securing Australia's reputation as a jurisdiction with best practice standards for copyright law. The main obligations for both treaties were previously implemented in Australian law via the Copyright Amendment (Digital Agenda) Act 2000, which included measures providing for a new online right of communication to the public for rightholders and sanctions in respect of the circumvention of technological protection of copyright materials. Accession to the WCT and the WPPT is part of Australia's copyright obligations under the Australia-United States Free Trade Agreement. The obligations to be implemented under the WPPT include new rights for performers over authorised sound recordings of their performances and moral rights. The outstanding obligation to be implemented under the WCT is to provide for an extension of the term of photographic copyright. These amendments are contained in Schedule 9 of the US Free Trade Agreement Implementation Bill 2004. The National Interest Analyses will soon be available from the Austlii Australian Treaties Library here.

3. Re-appointments to the Copyright Tribunal

On 24 June 2004 the Executive Council approved the re-appointments of Justices Emmett and Finkelstein as Deputy Presidents of the Copyright Tribunal along with members Ms Angela Bowne, Ms Rhonda Smith and Professor Dennis Pearce.

4. Update: Review of Digital Agenda Reforms

The report to the Government by Phillips Fox on significant aspects of the Digital Agenda reforms was released on 28 April 2004. The report may be accessed through the Department's website here.

The Government is considering the report as part of the broader review of the digital agenda reforms. Where relevant, submissions made to Phillips Fox and the Phillips Fox report have been taken into account in the development of legislation to implement Australia's obligations under the Australia-United States Free Trade Agreement. Progress on the broader review of the Digital Agenda reforms has been delayed as the implementation of the Agreement has had priority to date.

5. Copyright Law Review Committee: Public forum on Crown Copyright

The CLRC is currently inquiring into the appropriateness of the law relating to government ownership of copyright material.

On 12 February 2004 the CLRC published an Issues Paper (available from the CLRC website www.clrc.gov.au or the CLRC Secretariat) and invited public submissions. The Committee has received 66 submissions and is hosting a public forum in Sydney on 27 July 2004 to discuss particular issues of interest with key stakeholders, interested organisations and individuals.

The Committee will shortly release a Discussion Paper to facilitate discussion at the public forum.

The CLRC is chaired by Professor James Lahore and its other members are:

Professor Michael Pendleton, Professor of Law, Murdoch University,

Dr Allan Brown, Associate Professor, Griffith Business School, Griffith University,

Ms Susan Bridge, Chief Executive, Australian Publishers Association,

Mr John Gilchrist, Senior Lecturer in Law, University of Canberra,

Mr Nigel Hardiman, Convenor, States and Territories Copyright Use Group and Senior Project Officer, ACT Urban Services Department, and

Ms Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General's Department.

The CLRC Secretariat also has a new Director - Ms Louise Gell.

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

6. WIPO Update: Meeting of SCCRR

The 11^th session of the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights (SCCRR) meeting in Geneva on 7-9 June continued consideration of a possible new treaty to update protection of the rights of broadcasting organisations. The other main agenda item, protection for non-original databases, was also considered briefly.

The meeting considered for the first time a single text of a draft treaty that was prepared by the SCCRR Chairman and which was based entirely on treaty-language proposals previously made by individual countries including the EC, USA and Japan. At the end of the discussion, the SCCRR resolved to recommend that the next WIPO General Assembly, in September 2004, consider the possibility of convening a diplomatic conference to adopt the treaty 'at an appropriate time'. It was also agreed that the next SCCRR meeting, in November 2004, would consider a revised version of the Chairman's text.

7. Proposed Resale Royalty Scheme - Discussion Paper

The Minister for the Arts and Sport, Senator the Hon Rod Kemp, has released a discussion paper on a Proposed Resale Royalty Arrangement. The paper outlines the history and policy basis of the resale royalty right and puts forward options for the introduction of a resale royalty arrangement in Australia. Submissions in response to the paper are to be made to the Arts Branch of the Department of Communications, Information Technology and the Arts by 13 August 2004. The paper is available from the website http://www.dcita.gov.au

8. New Designs Law commences

Amendments to the provisions in the Copyright Act dealing with the overlap of copyright and industrial design protection commenced on 17 June 2004.

These amendments were passed by the Senate on 4 December 2003 as part of two bills reforming intellectual property law for registered designs (the Designs Act 2003 and the Designs (Consequential Amendments) Act 2003).

The copyright amendments are a response to recommendations made by the Australian Law Reform Commission Report No. 74 on Designs. The changes maintain existing policy with respect to protection for artistic works that have been commercially exploited as three-dimensional designs while providing more clarity and legal certainty.

In summary, the amendments:

• clarify the meaning of the term 'work of artistic craftsmanship';
• amend the definition of 'corresponding design' to deal with certain technical difficulties;
• provide that certain acts do not infringe copyright where they occur in the course of, or incidental to, the making or sale of non-infringing products;
• provide that the exemption for buildings or models of buildings from the effect of section 77 of the Copyright Act does not extend to portable buildings;
• provide that the publication of a complete patent specification or a representation in a design application relating to a corresponding design is deemed to be an industrial application of that corresponding design; and
• clarify when industrial application occurs for the purpose of section 77.

The amendments have been incorporated into the text of the Copyright Act available on the legislation database at the Attorney-General's Department web-site here.

9. Attorney-General opens Cinema Owners conference and launches Anti-piracy trailer, Canberra

The Attorney-General, the Hon Philip Ruddock MP, delivered the opening address to the 8^th annual conference of the Cinema Owners Association of Australia in Canberra on 8 June 2004. The Association represents independent cinema operators, mainly in regional areas. The Attorney-General spoke about the impact of digital technology and the implications of that technology for copyright piracy. He noted what the Government has done and is continuing to do to ensure that Australia's copyright law remains responsive to the environment it seeks to regulate. A copy of the Attorney-General's address is available here.

At the Cinema Owners Association conference, the Australian Federation Against Copyright (AFACT) launched its anti-piracy trailer. The trailer was produced by AFACT together with a coalition of film producers, theatres and other film industry suppliers and marks the start of a broad public education and awareness campaign in Australia aimed at increasing respect for copyright and reducing piracy and other copyright infringing activity. It will be shown on 1,907 theatre screens around Australia. The Attorney-General gave the launch speech, noting that when it comes to combating movie piracy, the film industry, with ready access to millions of movie goers each year is well placed to increase the awareness of Australians and to foster the development of a society that has greater respect for copyright. The Attorney-General's launch speech is available here.

WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?

There have been a few staff changes in the Branch. Mr Stephen Fox has left the Branch to work in Papua New Guinea for the next two years. Ms Fiona Phillips has transferred from her role as head of the CLRC Secretariat to Steve's former position. Ms Louise Gell has been appointed as Director of the CLRC Secretariat. Mr Dilan Thampapillai has also returned to the Department after taking leave to study at Cornell University in New York, and he has now joined our International and Projects Section. Former enews editor Erin Driscoll has left the Department to take up a position at the Australian Film Commission.

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
• Collective administration of copyright
• Ergas Report - Review of intellectual property legislation under the Competition Principles Agreement
• Film directors' rights
• International copyright regulations
• Moral rights
• Performers' rights
• Term of copyright protection
• Statutory licences and related issues
• Private copying

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

New Technologies Section

• Circuit Layouts Act
• Commonwealth copyright
• Copyright and designs overlap
• Copyright Tribunal appointments
• Digital Agenda Amendments Review
• E-commerce issues
• CLRC Report on Copyright and Contract
• CLRC Report into the Jurisdiction and Procedures of the Copyright Tribunal
• CLRC Reports into Simplification of the Copyright Act
• Regional copyright and related matters including Asia-Pacific Economic Cooperation
• Enforcement issues

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

Trade and Enforcement Section

• Bilateral copyright issues (including proposed new free trade agreements)
• Copyright and trade
• Government use of copyright
• IP and protection of arts and cultural expressions of Indigenous people
• WTO copyright issues
• Resale royalty
• ANAO report on Intellectual Property Policy and Practices in Government
• Copyright aspects of other intellectual property legislation

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

Copyright Law Review Committee Secretariat

Contact: Louise Gell, tel (02) 6250 5399, e-mail: louise.gellATag.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 Peter Treyde 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. It has published an updated addendum to this guide to reflect recent legislative amendments. To obtain copies of the guide and addendum 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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