Explanatory Memorandum
(Circulated by authority of the Hon Mark Vaile MP, Minister for Trade)Schedule 9 - Copyright
Commencement
231. This clause provides for the commencement of the Schedule 9 copyright provisions of the Bill. It does so by reference to a table set out in subclause 2(1).
232. Item 9 of the table provides that Schedule 9, Part 1 commences on 1 January 2005. Item 10 of the table provides that Schedule 9, Part 2 commences on the day that the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty 1996 comes into force for Australia. This date must be announced by notice in the Gazette. Item 11 of the table provides that Schedule 9, Parts 3 and 4 commence on the earlier of the time at which the provisions covered by table item 2 commence or the day that the WPPT enters into force. Item 12 of the table provides that Schedule 9, items 107 to 112 commence on 1 January 2005. Item 13 of the table provides that Schedule 9, item 113 commences on the day on which the Bill, when passed, receives the Royal Assent. Item 14 of the table provides that items 114 to 119 of Schedule 9 commence on 1 January 2005. Item 15 of the table provides that item 120 of Schedule 9 commences at the same time as the provisions covered by table item 2. However, if that time is the same time as the provisions covered by table item 12, then item 120 commences immediately after those provisions commence. This reflects that item 120 of Schedule 9 makes an amendment to sub-s33(2) of the Copyright Act 1968 as amended by item 107 of Schedule 9. Item 16 of the table provides that item 121 of Schedule 9 commences at the same time as the provisions covered by table item 2. Item 17 of the table provides that item 122 of Schedule 9 commences at the same time as the provisions covered by table item 2. However, if that time is the same time as the provisions covered by table item 12, then item 122 commences immediately after those provisions commence. This reflects that item 122 of Schedule 9 makes an amendment to sub-s34(1) of the Copyright Act as amended by item 109 of Schedule 9. Item 18 of the table provides that items 123 to 166 of Schedule 9 commence at the same time as the provisions covered by table item 2. Item 19 of the table provides that item 167 of Schedule commences on the day on which the Bill, when passed, receives the Royal Assent. Item 20 of the table provides that items 168 to 192 of Schedule 9 commence at the same time as the provisions covered by table item 2.
233. Subclause 2(2) stipulates that column 3 of the table in subclause 2(1) may contain additional information that may be printed with the Act but such information is not part of the operative provisions of the Act.
234. By virtue of this clause, the provisions in the Copyright Act 1968 are amended or repealed as set out in Schedule 9 of the Bill.
Part 1 Performers' rights in sound recordings
235. This item amends paragraph 22(3)(a) to insert the words 'other than a sound recording of a live performance' after 'sound recording'.
236. This amendment preserves the existing copyright ownership arrangements for sound recordings other than sound recordings of live performances as defined by new sub-s22(7). This would include recordings of the sounds of nature or machinery, or people when not engaged in a performance, for example, crowd noises.
237. New copyright ownership arrangements for sound recordings of live performances are introduced by item 2.
238. Headings to sub-ss22(1) and 22(3) are also inserted.
239. This item inserts new sub-ss22(3A), 22(3B) and 22(3C).
240. Articles 7 to 10 of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty 1996 (WPPT) require contracting parties to provide performers with economic rights in their performances embodied in sound recordings. Currently the Copyright Act 1968 (the Act) does not provide performers with such rights. The amendments in Part 1 grant performers exclusive rights in their performances embodied in sound recordings, by extending the concept of a maker of a sound recording of a live performance to also include a performer. By the operation of sub-s97(2), the maker of a sound recording is the owner of any copyright subsisting in the recording by virtue of Part IV of the Act. Performers own copyright in their sound recordings with the owners of the master recording as tenants in common.
241. New sub-s22(3A) provides that the makers of a sound recording of a live performance are the person or persons who, at the time of the recording own the record on which the recording is made and the performer or performers who performed in the performance embodied in the sound recording. Paragraph (b) specifically provides that a performer is not a maker under paragraph (b) if they are also a maker under paragraph (a).
242. A note to sub-s22(3A) indicates that a performer may be liable to pay compensation under s116AAA to a person who owns the record on which the recording is made. Section 116AAA provides for compensation to be paid where the amendments to sub-ss 22(3A) and 97(2) and (2A) would result in an acquisition of property otherwise than on just terms.
243. New sub-s22(3B) provides that if a sound recording is made of a live performance, and the performer performs under the terms of his or her employment, then the employer is taken to be a maker instead of the performer. This subsection is similar in result to the existing default provisions for ownership of copyright in works created under a contract of employment in sub-s35(6).
244. New sub-s22(3C) provides that sub-s22(3B) may be excluded or modified by agreement between the performer and the employer.
245. Headings to sub-ss22(4) and 22(5) are also inserted.
Item 3 At the end of section 22
246. This item inserts a new sub-s22(7). This provision inserts definitions of live performance, performer and sound recording of a live performance for the purposes of s22.
247. The definition of live performance is based on the current categories of performance in the definition of performance in Part XIA and extends those categories to an expression of folklore, as required by article 2(a) of the WPPT.
248. The definition of performer in a live performance means each person who contributed to the sounds of the performance, and where the performance includes a performance of a musical work, the conductor. This definition clarifies that with the exception of a conductor, any participant in a performance who does not contribute to the sounds of a performance, such as a person who dances silently, or a person who turns the pages of sheet music, would not come within the definition of performer.
249. A sound recording of a live performance is defined as a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.
250. This item repeals s84 and substitutes a new s84. The new provision inserts definitions of live performance, performer, qualified person and sound recording of a live performance, for the purposes of Part IV of the Act.
251. The definition of live performance is based on the current categories of performance in the definition of performance in Part XIA and extends those categories to an expression of folklore, as required by article 2(a) of the WPPT.
252. The definition of performer in a live performance means each person who contributed to the sounds of the performance, and where the performance includes a performance of a musical work, the conductor. This definition clarifies that with the exception of a conductor, any participant in a performance who does not contribute to the sounds of a performance, such as a person who dances silently, or a person who turns the pages of sheet music, would not come within the definition of performer.
253. A qualified person is defined as an Australian citizen, an Australian protected person, or a person, other than a body corporate, who is resident in Australia, or a body corporate incorporated under a law of the Commonwealth or a State. The definition replicates the previous definition in s84.
254. A sound recording of a live performance is defined as a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.
255. This item inserts the subdivision heading.
Subdivision A - Ownership of copyright in subject-matter other than works
256. This item is a minor drafting amendment to address the addition of a new sub-s97(2A).
257. This item inserts a new sub-s97(2A). New sub-s97(2A) provides that if there is more than one owner of copyright in a sound recording of a live performance, then those owners own the copyright as tenants in common in equal shares. As sub-s97(1) provides that s97 is subject to Parts VII (The Crown) and X (Miscellaneous) this amendment will only provide a default provision in the absence of any agreement to transfer or assign the copyright in accordance with s196.
258. The new provision does not affect the way in which more than one owner of a copyright in a sound recording, that does not include or consist of a live performance, holds the copyright.
Item 8 At the end of Division 5 of Part IV
259. This item inserts Subdivision B.
Subdivision B - Specific provisions relating to the ownership of copyright in pre-commencement sound recordings of live performances
260. Subdivision B relates to pre-commencement sound recordings of live performances. By applying the provisions of article 18 of the Berne Convention for the Protection of Literary and Artistic Works 1971 (Berne Convention), article 22 of the WPPT requires performers' rights in their performances embodied in sound recordings to be applied to all existing sound recordings of live performances that have not yet fallen into the public domain.
261. As a result of implementing this requirement, there is a possibility that the amendments to s22 and s97 may be characterised as laws that give rise to an acquisition of property other than on just terms under sub-s51(xxxi) of the Constitution, and thus be held invalid. To address this situation, Subdivision B provides a scheme for pre-commencement sound recordings of live performances that complies with the requirements for retrospectivity in article 22 of the WPPT, while avoiding characterisation as a law that gives rise to an acquisition of property on other than just terms.
262. This provision provides that the Subdivision applies to a sound recording of a live performance if copyright subsists in the sound recording on the day of commencement and at least one person would become a maker of the recording under paragraph 100AD(1)(b) or sub-s100AD(2).
263. This provision provides, for the purposes of the Subdivision, definitions of former owner and new owner.
264. A former owner of the copyright in a sound recording of a live performance means a person mentioned in paragraph 100AD(1)(a) (the person or persons who, immediately before the commencement of the section, owned the copyright subsisting in the sound recording.)
265. A new owner of the copyright in a sound recording of a live performance means a person who becomes a maker of a sound recording under paragraph 100 AD(1)(b) (the performer or performers who performed in the performance, other than a performer who falls within paragraph 100AD(1)(a). If sub-s100AD(2) applies, an employer who becomes a maker of a sound recording under that subsection will also fall within the definition of a new owner.
New 100AC Application of sections 100AD and 100AE
266. This provision provides that ss100AD and 100AE have effect subject to Parts VII (The Crown) and X (Miscellaneous).
New 100AD Makers of pre-commencement sound recordings of live performances
267. Paragraph 100AD(1)(a) provides that the makers of a sound recording of a live performance are the person or persons who, immediately before the commencement of the section, owned the copyright subsisting in the sound recording.
268. Paragraph 100AD(1)(b) provides that the maker of a sound recording is also the performer or performers who performed in the performance, other than a performer who falls within paragraph (a).
269. Subsection 100AD(2) provides that if a sound recording was made of a live performance, and the performer performed under the terms of his or her employment, then the employer is taken to be a maker instead of the performer. This subsection is similar in result to the existing default provisions for ownership of copyright in works created under a contract of employment in sub-s35(6).
270. Subsection 100AD(3) provides that sub-s100AD(2) may be excluded or modified by agreement, whether made before or after the live performance, between the performer and the employer.
271. These provisions reflect the reasoning discussed at item 2.
New 100AE Ownership of pre-commencement copyright in sound recordings of live performances
272. New sub-s100AE(1) provides that on and after the day on which this section commences, all makers of a sound recording of a live performance are owners of any copyright subsisting in the recording by virtue of this Part. This subsection operates on a similar basis as current sub-s97(2) in that it provides that all makers of the sound recording are owners of copyright.
273. New sub-s100AE(2) provides that the former owners of the copyright, and the new owners of the copyright, as defined by s100AB, each own half of the copyright as tenants in common in two equal shares. This provision differs from the new sub-s97(2A), as all makers do not share equally, but rather any owners who are makers by virtue of their ownership of copyright before commencement will collectively hold 50% of the copyright, and owners who are makers by virtue of their status as performers or employers of performers will collectively hold 50% of the copyright.
274. New sub-s100AE(3) provides that any owners who are makers by virtue of their ownership of copyright before commencement will hold their collective share in the same proportions as the whole copyright was owned by them immediately before the commencement of the section. This provision is intended to preserve the existing arrangements between former owners of copyright.
275. New sub-s100AE(4) provides that owners who are makers by virtue of their status as performers or employers of performers will hold their collective share as tenants in common in equal shares.
276. New sub-s100AE(5) provides that subsections (3) and (4) do not limit the ability to transfer or assign copyright under s196.
277. New sub-s100AE(6) provides that subsection (3) does not otherwise affect the terms on which the former owners own their half of the copyright.
278. New sub-s100AE(7) provides that if a new owner is not alive on the commencement of the section, then for the purposes of subsections (2) and (4), that owner is replaced by the person to whom the copyright would have devolved if the new owner had owned the copyright immediately before his or her death. If the copyright would have devolved to more than one person, those persons are to be treated as a single new owner for the purposes of subsections (2) and (4).
New 100AF Former owners may continue to do any act in relation to the copyright
279. New s100AF provides that the owner can, subject to any agreement between the former owner and the new owner, do any act comprised in the copyright, or any other act in relation to the copyright as if each new owner had granted a licence or permission to the former owner to do the act.
280. This provision does not remove the necessity to obtain the consent of other former owners to do the act.
281. New sub-s100AF(2) provides that subsection (1) applies to the former owner's licensees and successors in title, persons authorised by the former owner, and persons authorised by the former owner's licensees or successors in title in the same way as it applies to the former owner.
282. New subsection 100AF(3) provides that subsections (1) and (2) may be excluded or modified by agreement, whether made before or after the section commences, between a former owner and a new owner.
New 100AG Actions by new owners of copyright
283. New s100AG sets out the remedies that a new owner of copyright is not entitled to receive when bringing an action under the Act. In an action under s115, and ss116A, 116B and 116C the new owner is not entitled to receive the remedies of damages or an account of profits. In an action under s116, the new owner is not entitled to receive damages, an account of profits, any pecuniary remedy other than costs or delivery up of an infringing copy. However, a new owner may still be granted an injunction or additional damages where appropriate.
New 100AH References to the owner of the copyright in a sound recording
284. New s100AH provides that a new owner of the copyright is taken not to be the owner of the copyright in a sound recording of a live performance in certain provisions in the Act. These provisions are s107 (making a copy of a sound recording for the purpose of broadcasting), s108 (causing a published sound recording to be heard in public), s109 (making a broadcast of a published sound recording), s119 (the rights of action of an exclusive licensee), s133 destruction or delivery up of infringing copies), sub-s136(1) (definition of licence or licensor), ss150, 151, 152, 153E, 153F, 153G, 159, and 163A (provisions relating to applications to the Copyright Tribunal relating to statutory licences), and s183 (use of copyright material for the services of the Crown).
285. The note to new s100AH reflects that a new owner of the copyright in a sound recording of a live performance is not a relevant right holder under s135A, nor a relevant copyright owner under ss135ZB or 135ZZI.
Item 9 At the end of Division 7 of Part IV
New 113A Agents may act on behalf of groups of performers
286. This provision is intended to provide a mechanism for obtaining permission from groups of performers, by adopting the common law rules of agency. New sub-s 113A(1) provides that the section applies to all members of a group who have an interest in the copyright in a sound recording of a live performance. New sub-s113A(2) provides that all members of a group are taken to have granted a licence or permission to a person to do an act comprised in the copyright or to do any other act in relation to the copyright, if an agent of the group acting within the scope of his or her actual or apparent authority, has granted a licence or permission to the person to do the act.
287. The note to this provision provides that the person may still need to seek the authority of other owners of copyright in the sound recording before doing the act.
New 113B Consent to the use of a sound recording of a live performance
288. This provision provides that a sound recording can be used for its intended purpose if a performer has given his or her consent to its recording for a particular purpose. This provision is intended to address the situation where a performer has provided consent to make the recording for a particular purpose, but has not provided express consent for the recording to be used for that purpose. In this situation, the performer is taken to have consented to the recording and the use of the sound recording, provided that it is used in accordance with terms of the consent for the recording.
New 113C Use of published sound recordings when owners cannot be found etc.
289. This provision provides a licence for an owner of the copyright in a published sound recording to do an act comprised in the copyright or any other act in relation to the copyright, where the other owners cannot be found.
290. New sub-s113C(1) provides that an owner (the first owner) of copyright in a published sound recording is taken to have been granted a licence or permission to do an act comprised in the copyright, or any other act if the first owner has entered into an agreement with another person to do an act and the first owner, after making reasonable inquiries, cannot discover the identity or location of the other owner of the copyright or a person representing the other owner.
291. New sub-s113C(2) provides that if the first owner does an act, then they must hold the other owner's share of any amount received in respect of the act on trust for four years, unless the other owner is identified or located during that time.
292. New sub-s113C(3) provides that if the other owner is identified and located within the four year period, then the first owner must distribute the amount held on trust to that owner. If at the end of the four year period, the other owner remains unidentified or unlocated, the first owner may retain the amount held on trust.
293. New sub-s113C(4) provides that after making reasonable inquiries the first owner is not required to continue making inquiries during the four year period.
294. New sub-s113C(5) provides that the other owner cannot prevent the doing of the act by the first owner, if during the four year period the other owner is identified or located.
Item 10 At the end of Division 2 of Part V
New 116AAA Compensation for acquisition of property
295. This item provides for compensation to be paid when the insertions of sub-ss22(3A) and 97(2A) and the amendment to sub-s97(2) would result in an acquisition of property from a maker of a sound recording of a live performance by a performer in the performance other than on just terms. The rights of a performer in a sound recording of their live performance are not affected by this provision.
296. The item provides that where the granting to performers of copyright in sound recordings of their live performances would result in an acquisition of property, that performer shall pay to the maker an amount of compensation that is agreed between them, or failing agreement, that is determined by a court of competent jurisdiction.
297. New sub-s116AAA(3) requires any remedy awarded in a proceeding that is commenced otherwise than under this section to be taken into account when an action for compensation is commenced otherwise than under this section that arises out of the same event or transaction.
298. New sub-s116AAA(4) requires any compensation paid to be taken into account in assessing any remedy to be awarded in a proceeding that is commenced otherwise than under this section that arises out of the same event or transaction.
299. New sub-s116AAA(5) inserts definitions of acquisition of property, just terms, maker and performer for the purposes of this section.
300. The definition of performer is limited to persons who come within paragraph 22(3A)(b) or sub-s22(3B) and the definition of maker is limited to persons who come within paragraph 22(3A)(a). Thus the compensation scheme will not apply to former owners and new owners as defined by s100AB.
Item 11 At the end of section 123
301. Item 11 inserts a note to s123 that provides that not all owners of the copyright are entitled to an account of profits. The reasoning for this note is the exclusion of certain remedies for actions taken by new owners in s100AG.
Item 12 At the end of section 124
302. Item 12 inserts a note to s124 that provides that not all owners of the copyright are entitled to damages. The reasoning for this note is the exclusion of certain remedies for actions taken by new owners in s100AG.
Item 13 Section 135ZB (at the end of the definition of relevant copyright owner)
303. This item amends s135ZB by excluding the new owners of the copyright in a sound recording as defined by s100AB of Subdivision B of Division 5 of Part IV. This amendment is a consequence of the amendments made to that Subdivision.
Item 14 Section 135ZZI (at the end of the definition of relevant copyright owner)
304. This item amends s135ZZI by excluding the new owners of the copyright in a sound recording as defined by s100AB of Subdivision B of Division 5 of Part IV. This amendment is a consequence of the amendments made to that Subdivision.
305. The amendments made by items 1 to 7 and 9 and 10 of Part 1 apply to a sound recording made on or after the day on which the item commences. The remaining amendments apply to a sound recording of a live performance in which copyright subsists on the day on which this item commences.
Part 2 Performers' moral rights
306. This Part introduces comprehensive moral rights provisions for performers by amendment to Part IX of the Act. The new provisions are intended to give full and proper effect to Australia's obligations under article 5 of the WPPT.
307. The moral rights provided for performers will apply in a similar way to the provisions applying to authors of literary, dramatic, musical and artistic works and authors of cinematograph films. That is, performers will have three moral rights: the right to be identified as the performer of a work (the right of attribution of performership); the right to take action against false attribution (the right not to have performership of a work falsely attributed); and the right to object to derogatory treatment of his or her performance which prejudicially affects his or her reputation (the right of integrity of performership of a work).
308. The new Part provides that the moral rights of attribution and false attribution continue in force until the copyright ceases to subsist in the recorded performance. The right of integrity continues until the death of the performer of the recorded performance.
309. The general approach adopted in the Part is to adapt the present exceptions to the right of attribution and the right of integrity based on a standard of reasonableness to performers as well. In other words, the onus is on the defendant to show that it was reasonable in the circumstances not to identify the performer or to subject the work to derogatory treatment. A list of factors are specified in each instance for courts to take into account in determining whether the breach of the right of attribution or the right of integrity was reasonable in the particular circumstances.
310. It is recognised that there may be occasions when a performer will decide not to exercise and enforce some or all of his or her moral rights. A performer may give written consent to any or all acts or omissions that would otherwise constitute an infringement of their moral rights. The provisions allow a written consent to range from a specific consent to a comprehensive consent. It is not necessary to specify the actions or omissions to a work that are consented to under a comprehensive consent. This written consent may be in relation to performances that have occurred or are in progress or have not occurred. Written consent can be given to past acts or omissions that would otherwise constitute an infringement of the moral rights of the performer.
311. The Part amends the provisions setting out the relief that a court may grant in the case of infringement of moral rights. The remedies include an injunction, damages, a declaration, an order that the defendant make a public apology for the infringement, and an order that any false attribution or derogatory treatment of the performance be removed or reversed. In deciding whether to grant an injunction the court must take into account whether the parties have undertaken negotiation or mediation in order to settle their dispute.
312. This item repeals the present heading for Part IX of the Act and substitutes a new Part IX to include reference to moral rights of performers.
Item 17 Section 189 (definition of act of false attribution)
313. This item repeals the present definition of 'act of false attribution' and inserts a new definition to provide that in relation to a performer's moral rights it has the meaning given by new sub-s195AHA(2) (ie, Performer's right not to have performership falsely attributed).
Item 18 Section 189 (definition of attributable act)
314. This item repeals the present definition of 'attributable act' and inserts a new definition to provide that in relation to a performer's moral rights the term has the meaning given by new sub-s195ABA(2) (ie, Performer's right of attribution of performership).
Item 19 Section 189 (definition of attributor)
315. This item repeals the present definition of 'attributor' and inserts a new definition to provide that in relation to a performer's moral rights it has the meaning given by new sub-s195AHA(2) (Performer's right not to have performership falsely attributed).
316. This item inserts a new definition of 'copy record' into s189 of the Act. The term 'copy record' is defined to mean a record that embodies a recorded performance or a substantial part of a recorded performance that is derived directly or indirectly from an original record of the performance.
Item 21 Section 189 (definition of deal)
317. This item includes reference to new Division 3A (Right not to have performership falsely attributed) in the definition of 'deal' so that it also includes publish for the purposes of Division 3A as well as Division 3.
Item 22 Section 189 (definition of derogatory treatment)
318. This item repeals the present definition of 'derogatory treatment' and substitutes a new meaning to include reference to a performer's moral rights - which has the meaning given by new s195ALB (Derogatory treatment of performance).
Item 23 Section 189 (definition of infringing article)
319. This item repeals the present definition of 'infringing article' and substitutes a new definition in relation to the moral rights of a performer of a live performance and in relation to the moral right of a performer in a recorded performance. 'Infringing article' means in relation to a performer's moral rights in a live performance, a copy record of the live performance where it has infringed the right of attribution; a record embodying the live performance where a person's name is inserted or affixed on the record, or the record embodies sounds, infringing the performer's false attribution right; or a record embodying the live performance, being the performance as affected by derogatory treatment, that has infringed the right of integrity.
320. 'Infringing article' means in relation to the moral rights of a performer in a recorded performance a copy record which has infringed the right of attribution; or a record embodying the performance where a person's name is inserted or affixed in or on the record infringing the performer's false attribution right; or a record embodying the recorded performance that incorporates derogatory treatment that infringes the right of integrity of the performer, or a record embodying the recorded performance, being a record that incorporates derogatory treatment that has infringed the performer's right of integrity of performership
Item 24 Section 189 (definition of moral right)
321. This item repeals the present definition of 'moral right' for authors and substitutes a new meaning which provides that in relation to a performer it means a right of attribution of performership, or, a right not to have performership falsely attributed, or a right of integrity of authorship.
Item 25 Section 189 (definition of name)
322. This item inserts a reference to new Division 3A (Right not to have performership falsely attributed) so that a name can include a pseudonym, initials or a monogram for the purposes of that Division.
323. This item inserts a definition of 'original record' in s189. It means a record produced upon the making of a sound recording of a live performance. (The sound track of a cinematograph film is treated as not being a sound recording.)
324. This item inserts a definition of 'performance'. It means a performance within the meaning of Part IXA (Performers' protection) so far as the performance consists of sounds.
325. This item inserts a definition of 'performer' in a performance. It means each individual who contributed to the sounds of the performance. In relation to a performance in another country, it does not include a person who is not a qualified person at the time of the performance. There is also a note referring to the status of a conductor of a musical performance in new s191B (Conductor to be treated as a performer).
326. This item inserts a definition of 'performership' which means participation in a performance as the performer or one of the performers.
327. This item inserts a definition of 'person representing the performer'. It means the person who is entitled to exercise and enforce a performer's moral right under sub-s195ANB(1) (ie, if a performer dies, by his or her legal personal representative) or sub-s195ANB(2) (ie, where the affairs of the performer are lawfully administered by another person).
328. This item inserts a definition of 'qualified person' and refers to the meaning in Part XIA (ie, an Australian citizen, an Australian protected person or a person resident in Australia).
329. This item inserts a definition of 'recorded performance' in s189 to mean a performance embodied in a record so as to constitute a sound recording.
330. This item inserts a definition of 'record embodying a performance' in s189. It means an original record of a performance or a copy record of a performance.
331. This item inserts a definition of 'right not to have performership falsely attributed' which has the meaning given by new Division 3A.
332. This item inserts a definition of 'right of attribution of performership' which has the meaning given by new Division 2A.
333. This item inserts a definition of 'right of integrity of performership' which has the meaning given by new Division 4A.
334. This item inserts a definition of 'sound recording' which means a sound recording in which copyright subsists.
335. This item inserts a definition of 'staged' which means in relation to a live performance, the meaning given by a new s191A.
336. This item inserts two new provisions (s191A - staging a performance and s191B - conductor to be treated as a performer).
337. New s191A provides that a live performance is staged by the person who makes the arrangements necessary for the performance to take place, including elements of the performance not consisting of sounds.
338. New s191B provides that a conductor of a performance of a musical work is to be treated as a performer in addition to those persons who contributed to the sounds of the performance (subject to meeting the qualified person test).
Item 40 At the end of section 192
339. This item adds new sub-s192(2) to confirm that the moral rights of a performer are in addition to, and separate from, any other rights that the performer or any other person has under the Act.
Item 41 After Division 2 of Part IX
Division 2A - Right of Attribution of performership
340. This item inserts a new Division 2A - Right of attribution of performership. It comprises new s195ABA - s195ABE. It sets out the circumstances in which the right of attribution arises and the nature of the right. The new Division follows Division 2 (Right of attribution of authorship).
New 195ABA Performer's right of attribution of performership
341. New s195ABA (Performer's right of attribution of performership) provides that a performer in a live performance or recorded performance has a right of attribution of performership in respect of his or her performance.
342. The performer's right is to be identified, in accordance with new Division 2A if any attributable act (defined in new s195ABB) is done in respect of the performance.
343. The note in the provision confirms that the provision applies where there is more than one performer and refers to new sub-s195AZQ(2) (Performances that have more than one performer).
New 195ABB Acts giving rise to right of attribution of performership
344. New s195ABB (Acts giving rise to attribution of performership) provides that the 'attributable acts' for a live performance are communicating the live performance to the public and staging the live performance in public. The 'attributable acts' for a recorded performance are making a copy record and communicating the recorded performance to the public. These attributable acts derive from the economic rights of a performer.
New 195ABC Nature of the identification of performer
345. New s195ABC (Nature of the identification of performer) provides for the nature and manner of identification of a performer. A performer may be identified by any reasonable form of identification (new sub-s195ABC(1)). New sub-s195ABC(2) provides for the case where a performer has made known the particular way in which he or she is to be identified. If it is reasonable in the circumstances, the identification is to be made that way. New sub-s195ABC(3) refers to the situation of performers who use a group name as being sufficient identification.
New 195ABD Identification of performer to be clear and reasonably prominent or audible
346. New s195ABD (Identification of a performer to be clear and reasonably prominent or audible) provides that the identification of a performer must be clear and reasonably prominent or audible as the case may be.
New 195ABE What is a reasonably prominent identification
347. New s195ABE (What is a reasonably prominent identification) provides for guidance on what is considered reasonably prominent identification. When a copy record is made of a recorded performance, an identification of a performer or group would be reasonably prominent if it was on each copy record so that a person acquiring the copy record would have notice of the identity of the performer or group.
Item 42 After Division 3 of Part IX
Division 3A - Right not to have performership falsely attributed
348. This item inserts a new Division 3A - Right not to have performership falsely attributed - after Division 3. The new Division comprises new s195AHA - s195AHC.
New 195AHA Performer's right not to have performership falsely attributed
349. New sub-s195AHA(1) (Performer's right not to have performership falsely attributed) provides that a performer in a live performance or recorded performance has a right not to have his or her performership falsely attributed.
350. New sub-s195AHA(2) provides for the nature of the right. That is, a performer has a right not to have a person, ie, the attributor, do any of the acts of false attribution set out in new ss195AHB and 195AHC. There is a note confirming the application of the provision to more than one performer in a performance and referring to new sub-s195AZQ(3).
New 195AHB Acts of false attribution of performership
351. New s195AHB (Acts of false attribution of performership) sets out the acts of false attribution in relation to live performances in sub-s195AHB(1) - (4); in relation to recorded performances for individual performers in sub-s195AHB(5) and in relation to recorded performers for groups in sub-ss195AHB(6) and (7).
352. Acts of false attribution done before, during or after live performances include where a stager (or a person authorised) falsely states or falsely implies to an audience or prospective audience that a person is or will be the performer or the performance is being or was presented by a particular group of performers.
353. New sub-s195AHB(4) makes clear that doing an act referred to in sub-ss195AHB(1), (2) and (3) is only an act of false attribution if the performance is in public or is communicated to the public. Any unauthorised communication to the public is to be disregarded.
354. New sub-s195AHB(5) provides that for an individual performer of a recorded performance it is an act of false attribution to insert or affix a person's name in or on a record in such a way as to imply falsely that the person is the performer.
355. It is also an act of false attribution to deal with such a record if the attributor (ie, the person doing the dealing) knows that the person is not a performer of the performance.
356. It is also an act of false attribution to communicate the performance to the public if the attributor knows that the person is not a performer of the performance.
357. New sub-s195AHB(6) provides for the same acts of false attribution set out in sub-s195AHB(5), except they are adapted to apply to groups of performers.
358. New sub-s195AHB(7) (Silent performers) provides that it is not an act of false attribution to state that a performer who was silent in a performance performed in the performance. The note to the provision gives an example of its possible application.
New 195AHC Act of false attribution of performership of altered recorded performance
359. New sub-s195AHC(1) (Act of false attribution of performership of altered recorded performance) provides that where a recorded performance has been altered by someone other than a performer, it is an act of false attribution to deal with the altered copy, as being the unaltered record of the performance if the attributor (ie, the dealer) has knowledge that it was not the unaltered recorded performance of the performer.
360. New sub-s195AHC(2) provides that sub-s195AHC(1) does not apply if the alteration was only insubstantial or the alteration was required to comply with the law or was necessary to avoid a breach of the law (eg, defamation).
Item 43 After Division 4 of Part IX
Division 4A - Right of integrity of performership
361. This item inserts new Division 4A - Right of integrity of performership. The Division gives effect to the second moral right referred to in article 5 of the WPPT, that is the right of a performer to object to any distortion, mutilation or other modification of his or her performance that would be prejudicial to his or her honour or reputation.
New 195ALA Performer's right of integrity of performership
362. New s195ALA (Performer's right of integrity of performership) provides that the performer in a live performance or recorded performance has a right of integrity in respect of the performance. The performer's right is not to have the performance subjected to derogatory treatment (new sub-s195ALA(2)). The provision includes a note about application where there is more than one performer and refers to sub-s195AZQ(4).
New 195ALB Derogatory treatment of performance
363. New s195ALB (Derogatory treatment of performance) defines 'derogatory treatment' to mean the doing, in relation to a live performance or recorded performance, of anything that results in a material distortion or alteration of, or the mutilation of the performance that is prejudicial to the performer's reputation.
Subdivision A - Duration and exercise of moral rights of authors
364. This item inserts the heading to new Subdivision A - Duration and exercise of moral rights of authors. It includes two notes to change headings to provide that s195AM and s195AN apply to the duration and exercise of 'authors' moral rights. These are consequential amendments because of the inclusion of new Subdivision B in relation to performers at the end of Division 5 of Part IX.
Item 45 At the end of Division 5 of Part IX
Subdivision B - Duration and exercise of moral rights of performers
365. This item inserts new Subdivision B - Duration and exercise of moral rights of performers and comprises new s195ANA (Duration of performer's moral rights for recorded performances) and s195ANB (Exercise of performer's moral rights).
New 195ANA Duration of performer's moral rights for recorded performances
366. As permitted by article 5(2) of the WPPT, under new s195ANA a performer's right of attribution of performership for a recorded performance ceases when copyright ceases to subsist in the recorded performance. This is also the case for the performer's right not to have performership falsely attributed.
367. A performer's right of integrity for a recorded performance ceases upon the death of the performer.
New 195ANB Exercise of performer's moral rights
368. New sub-s195ANB(1) provides that a performer's moral rights may be exercised by his or her legal personal representative. New sub-s195ANB(2) states that if the performer's affairs are lawfully administered by another person, the performer's moral rights may be exercised and enforced by the person administering his or her affairs. (This does not apply to the situation of bankrupt or insolvent debtors).
369. New sub-s195ANB(3) confirms that other than this section, a performer's moral right is not transmissible by assignment, will or by devolution by operation of law.
370. New sub-ss195ANB(4) and (5) provide for the situation where there are two or more performers. The performers may enter into a written co-performership agreement whereby each of them agrees only to exercise his or her right of integrity jointly with the other performer or performers.
Subdivision A - Infringement of moral rights of authors
371. This item inserts new subdivision heading - Subdivision A - Infringement of moral rights of authors, which is a consequential amendment because of the need to introduce Subdivision B - Infringement of moral rights of performers.
372. This item omits 'Division' in the first line and replaces it with 'Subdivision', which is a consequential change as a result of item 46.
373. This item omits 'Division' in the first line and replaces it with 'Subdivision', which is a consequential change as a result of item 46.
374. This item omits 'Division' in the first line and replaces it with 'Subdivision', which is a consequential change as a result of item 46.
375. This item makes a consequential change to s195AVA (Matters to be taken into account) to confirm that it only applies to moral rights in respect of a work. (New s195AXH is the equivalent provision for performers.)
376. This item makes a consequential change to s195AVB (Communication by use of certain facilities) to confirm that it only applies to moral rights in respect of a work (New s195AXI is the equivalent provision for performers.)
Item 52 At the end of Division 6 of Part IX
Subdivision B - Infringement of moral rights of performers
377. This item adds new Subdivision B - Infringement of moral rights of performers. It comprises new s195AXA - s195AXL. The new provisions are similar to the present provisions in Part IX - s195AO - s195AX in relation to authors. Article 5(3) of the WPPT provides that the means of redress for infringements of a performer's moral rights are to be governed by the domestic laws of the Parties.
New 195AXA Infringement of right of attribution of performership
378. New s195AXA (Infringement of right of attribution of performership) provides that a person infringes a performer's right of attribution of performership if a person does or authorises someone else to do one of the attributable acts (referred to in sub-s195ABA(2) in respect of the performance without the identification of the performer in accordance with Division 2A. This provision is subject to the other provisions in the Subdivision.
New 195AXB Infringement of right not to have performership falsely attributed
379. New s195AXB (Infringement of right not to have performership falsely attributed) provides that subject to the Subdivision, a person infringes a performer's right if the person does an act of false attribution in respect of the performance.
New 195AXC Infringement of right of integrity of performership
380. New s195AXC (Infringement of right of integrity of performership) sets out the circumstances when a person infringes a performer's right of integrity. New sub-s195AXC(1) provides that the provision is also subject to the other provisions in the Subdivision.
381. New sub-s195AXC(2) provides that a person infringes the right of integrity in respect of a live performance or recorded performance if the person (or someone else authorised by that person) subjects the performance to derogatory treatment.
382. New sub-s195AXC(3) sets out the circumstances of infringement where a live performance affected by derogatory treatment becomes a recorded performance. In this situation a person infringes the right of integrity in respect of the live performance if the person makes a copy of the recorded performance, communicates the recorded performance to the public or causes the recorded performance to be heard in public.
383. New sub-s195AXC(4) applies where a recorded performance has been subjected to derogatory treatment. A person infringes the performer's right of integrity in relation to the recorded performance if the person makes a copy record, communicates to the public or causes the recorded performance to be heard in public.
New 195AXD No infringement of right of attribution of performership if it was reasonable not to identify the performer
384. New s195AXD (No infringement of right of attribution of performership if it was reasonable not to identify the performer) sets out the circumstances where a failure to identify the performer will not be an infringement of the performer's moral right of attribution.
385. New sub-s195AXD(1) provides that a person who does or authorises someone else to do an attributable act (see new sub-s195ABA(2)) in respect of a performance, does not, if the performer in the performance is not identified, infringe the performer's right of attribution, if the person establishes that it was reasonable in the circumstances not to identify the performer.
386. New sub-s195AXD(2) sets out matters to be taken into account in determining whether it was reasonable in the circumstances not to identify a performer in a live performance or recorded performance. These matters include: the nature of the performance; the purpose for which the performance is used; the manner in which the performance is used; the context in which the performance is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; any difficulty or expense that would have been incurred to identify the performer; and whether the performer participated in the performance in the course of the performer's employment.
New 195AXE No infringement of performership if derogatory treatment or other action was reasonable
387. New s195AXE (No infringement of right of integrity of performership if derogatory treatment or other action was reasonable) provides in a similar way to new s195AXD. New sub-s195AXE(1) provides that a person does not infringe the performer's right of integrity of performership if the person establishes that it was reasonable in all the circumstances to subject the performance, or authorise it to be subjected to, the derogatory treatment.
388. New sub-s195AXE(2) provides for the matters to be taken into account in determining whether it was reasonable in the circumstances to subject the live performance or recorded performance to derogatory treatment. The matters include: the nature of the performance; the purpose for which the performance is used; the manner in which the performance is used; the context in which the performance is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; whether the performer who alleges the treatment participated in the performance in the course of employment; and whether the treatment was required by law or was necessary to avoid a breach of the law. In relation to this last factor, classification, obscenity, consumer protection, defamation, national security laws and sub judice are all examples of laws that may require changes to a performance that would otherwise infringe the performer's right of integrity. This factor, like the other factors in this section, is not stated in absolute terms. It would therefore be necessary for each defendant to show that their derogatory treatment of the performance was reasonable in the light of these laws. Changes made under the colour of legal compulsion would not be justified if they went beyond what was reasonably necessary for this purpose.
389. New sub-s195AXE(3) provides for the availability of a 'reasonableness' defence in respect of any act referred to in new sub-s195AXC(3) or sub-s195AXC(4).
New 195AXF Infringement by importation for sale or other dealing
390. New s195AXF (Infringement by importation for sale or other dealing) and new s195AXG (Infringement by sale and other dealings) provide for further rights against third parties for a performer in circumstances where his or her moral rights have been infringed by an article. The intention is to allow the performer to prevent further distribution of such an article, including where an article is imported into Australia.
391. Under new sub-s195AXF(1) a performer's moral right is infringed if a person imports an article into Australia for the purpose of sale or other commercial dealing with the article, if the importer knew, or should have known, that if the article had been made in Australia it would have been an infringing article (see definition in s189). 'Dealing with' is defined in new sub-s195AXF(2) to not include distributing except where its purpose is for sale.
New 195AXG Infringement by sale and other dealings
392. New sub-s195AXG(1) provides that a performer's moral rights are infringed where a person deals with an article where the person knew, or should have known, that the article was an infringing article, or if the article is imported, would have been an infringing article had it been made in Australia (see definition in s189).
393. New sub-s195AXG(2) provides that 'deals with' does not include distributing except where its purpose is for sale or dealing covered by new paragraph 195AHB(5)(b) (ie, acts of false attribution for recorded performances of individual performers).
New 195AXH Matters to be taken into account
394. New s195AXH (Matters to be taken into account) provides for matters to be taken into account in determining whether a person has authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance. The matters that must be taken into account include: the extent, if any, of the person's power to prevent the doing of the act; the nature of any relationship between the persons; and whether the person took reasonable steps to prevent or avoid the doing of the act, including compliance with any relevant industry codes of practice.
New 195AXI Communication by use of certain facilities
395. New s195AXI (Communication by use of certain facilities) relates to limitation of liability. It provides that a person who provides facilities for making a communication, or facilitating the making thereof, is not taken to have authorised the doing of an act of infringement of moral rights, merely because another person uses the facilities provided. The term 'person' includes a carrier or carriage service provider.
New 195AXJ Performer's consent to act or omission
396. New s195AXJ (Performer's consent to act or omission) relates to circumstances where a performer has given consent.
397. New sub-s195AXJ(1) provides that it is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do anything that comes within the scope of what has been consented to by the performer or the person representing the performer. The written consent under this provision may range from a specific consent to a comprehensive consent. It is not necessary to specify the actions or omissions in relation to a performance that are consented to under such a comprehensive consent. The consent of one performer does not affect the moral rights of any other performer.
398. New sub-s195AXJ(2) makes it clear that a written consent may be given to acts or omissions that were done either before or after the consent was given.
399. New sub-s195AXJ(3) provides that a written consent to acts or omissions that would otherwise constitute an infringement of moral rights can relate to a specific performance or performances in existence at the time the consent is given, or a performance or performances of a particular description that have not yet occurred or that are in the course of occurring.
400. New sub-s195AXJ(4) provides that a consent may be given by an employee for the benefit of his or her employer in relation to his or her performances that are given in the course of his or her employment.
401. New sub-s195AXJ(5) provides that a written consent that is made for the benefit of the owner or future owner of copyright in the performance or performances concerned is presumed to extend to his or her licensees and successors in title and to any person authorise to do acts comprised in the copyright.
402. New sub-s195AXJ(6) makes it clear that new sub-ss195AXJ(2), (3), (4) and (5) do not limit the operation of new sub-s195AXJ(1).
New 195AXK Consent invalidated by duress or false or misleading statements
403. New s195AXK (Consent invalidated by duress or false or misleading statements) provides for circumstances when the giving of consent will not be valid under new s195AXJ.
404. New sub-s195AXK(1) refers to where a person applies duress to a performer or his or her representative in connection with the giving of a consent for the purposes of s195AXJ.
405. New sub-s195AXK(2) refers to where a person makes a statement to another person knowing that it is false or misleading, and where the person makes the statement with the intention of persuading the other person to give or not give consent under new s195AXJ. Consents resulting from such circumstances do not have any effect.
New 195AXL Acts or omissions outside Australia
406. New s195AXL (Acts or omissions outside Australia) confirms that a performer's moral rights in respect of a live performance or recorded performance have no extraterritorial application. It only applies to acts or omissions within Australia.
Subdivision A - Remedies for infringement of moral rights of authors
407. This item inserts a new Subdivision A - Remedies for infringement of moral rights of authors which is a consequential amendment because of the inclusion of new Subdivision B - Remedies for infringement of moral rights of performers.
408. This item omits 'Division' and inserts 'Subdivision'. This is a consequential change because of the amendment referred to in item 53.
Item 55 Sections 195AZB and 195AZC
409. This item repeals these sections of the Act because of the inclusion of new s195AZGG (Saving of other rights and remedies) and s195AZGH (Jurisdiction of Courts). The headings to s195AZ, and s195AZA are amended to insert 'authors' after 'infringement of' to confirm that those provisions only apply in relation to authors. This is also the case with changing the heading to s195AZE.
Item 56 At the end of Division 7 of Part IX
Subdivision B - Remedies for infringement of moral rights of performers
410. This item adds new Subdivision B - Remedies for infringements of moral rights of performers - to Part IX of the Act. The new Subdivision includes new ss195AZGA - 195AZGF and are based on the present ss195AY - 195AZA of the Act. The item also adds new Subdivision C - Miscellaneous.
411. New s195AZGA (Definition etc) provides that an action refers to a civil action between the parties and, in relation to a counterclaim, references in the Subdivision to the defendant are taken to be references to the plaintiff.
New 195AXGB Actions for infringement of performer's moral rights
412. New s195AZGB (Actions for infringement of performer's moral rights) provides that if a person infringes any of the moral rights of a performer, the infringement is a civil proceeding and the performer or his or her legal personal representative may bring a civil action in respect of the infringement. The right to bring such an action is expressly made subject to any co-performership agreement between performers under new s195ANB.
New 195AXGC Remedies for infringements of performer's moral rights
413. New s195AZGC (Remedies for infringements of performer's moral rights) provides for the relief that a court may grant in an action for infringement of any of a performer's moral rights. The relief includes: an injunction; damages for loss resulting from the infringement; a declaration that a moral right of the performer has been infringed; an order that the defendant make a public apology; or an order that any false attribution or derogatory treatment be removed or reversed.
414. New sub-s195AZGC(2) lists certain matters a court may take into account in exercising its discretion as to the appropriate relief to grant. These matters include: whether the defendant was aware or ought reasonably to have been aware of the performer's moral rights; the effect on the performer's reputation resulting from any damage to the performance; the number of people who have heard the performance; any mitigating action taken by the defendant; if the right of attribution is infringed - any cost or difficulty that would have been associated with identifying the performer; and any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment of the performance.
415. New sub-s195AZGC(3) provides that in deciding whether to grant an injunction under subsection (1), the court must consider whether the parties have attempted negotiation to reach a settlement of the action. In so deciding, the court must also consider whether to adjourn the hearing or further hearing of the action for the purpose of providing the parties with an opportunity to attempt negotiation or mediation.
416. New sub-s195AZGC(4) provides that, in relation to an action brought concerning an act or omission done after the death of the performer, any damages recovered by the person representing the performer devolve as if they formed part of the performer's estate before his or her death. A note has been added at the end of this Subsection to the effect that sub-s195AZGC(4) does not apply in relation to the right of integrity which ends on the performer's death (see new s195ANA).
New 195AXGD Presumption as to subsistence of copyright
417. New s195AZGD (Presumption as to subsistence of copyright) provides that in an action for infringement of a moral right in respect of a recorded performance, copyright is presumed to subsist in the recorded performance if the defendant does not question the issue.
New 195AXGE Presumption as to subsistence of performer's moral rights
418. New s195AZGE (Presumption as to subsistence of performer's moral rights) provides that in an action under this Part, if copyright is presumed or proved to have subsisted in the recorded performance when the infringement is alleged to have occurred, then that moral right is also presumed to have subsisted in the recorded performance at that time. The section is subject to sub-s.195ANA(3) where the duration of a performer's moral right of integrity is limited to the life of the performer.
New 195AXGF Presumptions in relation to performership
419. New s195AZGF (Presumption in relation to performership) provides for a presumption of performership of a performance by the person named on a record. New sub-s195AZGF(2) also provides for a similar presumption of performership in relation to the name of a group of performers.
420. This subdivision inserts new s195AZGG (Saving of other rights and remedies) and new s195AZGH (Jurisdiction of courts). These new provisions were previously s195AZB and s195AZC respectively of the Act.
New 195AZGG Saving of other rights and remedies
421. New s195AZGG provides that Part IX does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under Part IX.
422. Under new sub-s195AZGG(2) any damages recovered under Part IX are to be taken into account in assessing damages awarded under proceedings brought otherwise than under Part IX which arise out of the same event. New sub-s195AZGG(3) provides similarly that damages recovered in proceedings brought otherwise than under Part IX are to be taken into account in any proceedings brought under Part IX that arise out of the same event or transaction.
New 195AXGH Jurisdiction of courts
423. New sub-s195AZGH(1) provides that the jurisdiction of a State or Territory Supreme Court in a matter arising under this Part is to be exercised by a single Judge. Sub-s195AZGH(2) provides that subject to sub-s195AZGH(3) a decision of a court of State or Territory under Part IX is final. New sub-s195AZGH(3) provides that an appeal lies from a decision of a State or Territory Court to the Federal Court, or, by special leave, the High Court. The Federal Court and the Federal Magistrates Court has jurisdiction on matters under Part IX (new sub-s195AZGH(4) and sub-s195AZGH(5)).
Subdivision A - Miscellaneous provisions about moral rights of authors
424. This item inserts reference to new Subdivision A - Miscellaneous provisions about moral rights of authors. This is a consequential amendment because of the inserting of new Subdivision B - Miscellaneous provisions about moral rights of performers.
Item 58 At the end of Division 8 of Part IX
Subdivision B - Miscellaneous provisions about moral rights of performers
425. This item adds new Subdivision B - Miscellaneous provisions about moral rights of performers which comprises new s195AZP, s195AZQ and s195AZR.
New 195AZP Parts of performances
426. New s195AZP (Parts of performances) confirms that moral rights in respect of a live performance or recorded performance apply in relation to the whole or a substantial part of the performance.
New 195AZQ Performances that have more than one performer
427. New s195AZQ (Performances that have more than one performer) provides for the application of moral rights where there is more than one performer in a performance. New sub-ss195AZQ(2) - (4) provide that moral rights apply to each performer. The consent of one performer to any act or omission does not affect the moral rights of any other performer in the performance (new sub-s195AZQ(5)). Examples of the application of this section are also set out in sub-s195AZQ(2) - (4).
428. As permitted by article 22(2) of the WPPT, new s195AZR (Application) provides that any moral rights in a live performance only subsist in a live performance that occurs after the commencement of the section. Similarly, moral rights in respect of a recorded performance only subsist if the relevant live performance occurred after the commencement of the section.
Part 3 - Performers' protection
Item 59 Subsection 10(1) (at the end of the definition of communicate)
429. This item amends the definition of communicate in sub-s10(1) to include performances or live performances within the meaning of the Act in the categories of items that the definition relates to. This amendment is consequential to the extension of performers' protection to non-broadcast communications of their performances in Part XIA at item 76.
Item 60 Subsection 248A(1) (paragraphs (a) (b) of the definition of exempt recording)
430. This item repeals paragraphs (a) and (b) of the definition of 'exempt recording' in sub-s248A(1) in Part XIA and substitutes new paragraphs (a), (aa) and (b).
431. Currently Part XIA, in providing for a right of action against and criminal offences of unauthorised uses of live performances, also provides for a number of exceptions. Insofar as such uses include sound recording and audiovisual recording of performances, Part XIA does this by defining 'recording' in sub-s248A(1) to exclude an 'exempt recording' and by defining 'exempt recording' to cover the range of circumstances in which the recording of a live performance is not actionable or an offence.
432. The categories of exempt recordings, as defined in sub-s248A(1), include recordings allowable as exceptions to the rights of performers prescribed by the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention), which Part XIA implements. In relation to sound recordings of performances, those Rome Convention rights are subsumed by the obligations of the WPPT which contains more restrictive provisions on allowable exceptions to these performers' rights. Article 15(1) of the Rome Convention allows unqualified exceptions for private use and use solely for teaching or scientific research plus two other specific exceptions, in contrast to article 16(2) of the WPPT which requires any exceptions to conform to the '3-step test' prescribed in that article.
433. New paragraph (a) retains the existing Rome Convention exception for indirect cinematograph films of performances, where the film is made solely for the purpose of the private and domestic use of the person who made it. Previously, this exception applied to both cinematograph films and sound recordings.
434. New paragraph (aa) applies the more restrictive WPPT-compliant exception to sound recordings, providing that an exempt recording means an indirect sound recording of a performance where that recording is a fair dealing for the purpose of research or study. New paragraph (aa) replaces the existing Rome Convention exceptions for indirect sound recordings of live performances for scientific research.
435. New paragraph (b) retains the existing Rome Convention exception for indirect cinematograph films of performances, where the film is made solely for the purpose of use in scientific research. Previously, this exception applied to both cinematograph films and sound recordings.
Item 61 Subsection 248A(1) (paragraphs (c), (d) and (e) of the definition of exempt recording)
436. This item amends the wording of paragraphs (c), (d) and (e) of sub-s248A(1) to restrict the operation of those paragraphs to cinematograph films for the reasons given at item 60.
Item 62 Subsection 248A(1) (paragraph (f) of the definition of exempt recording)
437. This item amends the wording of paragraph (f) of sub-s248A(1) to restrict the operation of this paragraph to cinematograph films for the reasons given at item 60.
Item 63 Subsection 248A(1) (after paragraph (f) of the definition of exempt recording)
438. This item inserts a new paragraph (fa) to the definition of exempt recording in sub-s248A(1). New paragraph (fa) provides that an exempt recording means a direct or indirect sound recording of a performance that is a fair dealing for the purposes of criticism or review of that performance or another performance, or the reporting of news in a newspaper, magazine or similar periodical, or by means of a communication or in a cinematograph film. This amendment reflects the reasons given at item 60.
Item 64 Subsection 248A(1) (after paragraph (j) of the definition of exempt recording)
439. This item inserts a new paragraph (ja) to the definition of exempt recording in sub-s248A(1). New paragraph (ja) provides that an exempt recording means a copy of a sound recording referred to in new paragraphs 248A(1)(aa) and (fa) and existing paragraph 248A(1)(g) where that copy is made solely for the purpose referred to in those paragraphs. This amendment reflects the reasons given at item 60.
Item 65 Subsection 248A(1) (paragraph (k) of the definition of exempt recording)
440. This item omits the reference to sound recording from paragraph 248A(1)(k). This amendment reflects the reasons given at item 60.
Item 66 Subsection 248A(1) (after subparagraph (n)(i) of the definition of exempt recording)
441. This item inserts a new subparagraph 248A(1)(n)(ia) which provides that an exempt recording means a copy of a sound recording referred to in paragraph 248A(1)(j) if the copy of the sound recording was made solely for a purpose referred to in new paragraphs 248A(1)(aa), (fa) or existing paragraph 248(1)(g). This amendment reflects the reasons given at item 60.
Item 67 Subsection 248A(1) (subparagraph (n)(ii) of the definition of exempt recording)
442. This item amends the wording of subparagraph 248A(1)(n)(ii) to restrict the operation of this subparagraph to copies of cinematograph films. This amendment reflects the reasons given at item 60.
Item 68 Subsection 248A(1) (definition of indirect)
443. This item omits the words 'broadcast, or a re-broadcast' from the definition of indirect in sub-s248A(1) and substitutes the word 'communication'. This amendment is consequential to the extension of performers' protection to non-broadcast communications of their performances in Part XIA at item 76.
Item 69 Subsection 248A(1) (definition of performance)
444. This item repeals the definition of performance in subsection 248A(1) and substitutes a new definition of performance. The new definition extends the current meaning to a performance of an expression of folklore, as required by article 2(a) of the WPPT and clarifies the connecting factors for protection of a performance.
445. Currently, the definition of performance in sub-s248A(1) requires the performance to be a live performance given in Australia or given by one or more qualified persons, whether in the presence of an audience or otherwise. The new definition of performance clarifies where a performance is not given in Australia, it is still a performance for the purposes of sub-s248A(1) if it is given by one or more qualified persons even though it may also be given by other non-qualified persons.
446. This item inserts a new definition of 'performer' into sub-s248A(1). The new definition clarifies that where a performance is given outside Australia, a person who is not a qualified person at the time of the performance, will not be a performer.
447. The amendments to the definition of performance and performer in items 69 and 70 clarify that where a performance is given outside of Australia by one or more qualified persons, the inclusion of non-qualified persons in the performance will not prevent the performance from coming under the operation of Part XIA. However, only the qualified participants are granted the protections of Part XIA.
Item 71 After subsection 248A(1)
448. This item inserts a new sub-s248A(1A). The new provision provides factors that must be taken into account when determining if a sound recording of a performance is a fair dealing for the purpose of research or study for the purposes of paragraph 248A(1)(aa) of the definition of exempt recording. The provision is based upon the existing factors for fair dealing in relation to works in sub-s40(2).
449. This item amends the wording of sub-s248B to restrict the operation of this subsection to copies of cinematograph films. This amendment reflects the reasons at item 60.
Item 73 After subsection 248C(1)
450. This item inserts a new sub-s248C(1A). The new provision provides that a sound recording or a copy of a sound recording that is an exempt recording because it falls within paragraphs 248A(1)(aa) or (fa), ceases to be an exempt recording if it is used for any other purpose without the authority of the performer. This amendment reflects the reasons at item 60.
451. This item omits the reference to sound recordings from sub-s248C(2). This amendment reflects the reasons at item 60.
New 248D Private and domestic use
452. This item repeals s248D and substitutes a new s248D. The new provision operates only in relation to cinematograph films. This amendment reflects the reasons at item 60.
453. This item amends paragraph 248G(1)(b) to remove the reference to 'broadcasts, or re-broadcasts an authorised recording of a performance' and substitute 'communicates the performance to the public'. Article 6(i) of the WPPT requires contracting parties to grant performers the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances. Currently, Part XIA protection does not extend to communications other than broadcasts of performers' unfixed performances or unauthorised fixations of their performances. The amendment to paragraph 248G(1)(b) provides that it is an unauthorised use of a performance to communicate a performance to the public without the authority of the performer.
454. The definition of broadcast in s10 provides that a broadcast is a communication to the public. As a result, the reference to communicate will include both broadcasts and other types of communications. As a consequence of this amendment, references to broadcasts throughout Part XIA are amended to refer to communications to the public.
455. This item amends sub-s248G(3) to omit 'broadcasts or re-broadcasts the performance' and substitute 'communicates an authorised recording of a performance to the public'. This amendment is consequential to the extension of performers' protection to non-broadcast communications of their performances in Part XIA at item 76.
Item 78 At the end of section 248J
456. This item adds new sub-ss248G(4) and (5).
457. As a consequence of granting performers copyright over their sound recordings, it could be possible that the same act in relation to their performance may give rise to separate actions under Part V and Part XIA. This item prevents a performer from being awarded the full amount of damages under both Part V and Part XIA in relation to the same act.
458. New sub-s248G(4) provides that where a performer is bringing an action under s248J, the relief consists of or includes damages, and the performer has already been awarded damages in an action under another part of the Act in relation to the same event or transaction, then any damages awarded are to be reduced by the amount of damages already awarded.
459. New sub-s248G(5) provides that where a performer is bringing an action under any other part of the Act, and the relief consists of or includes damages, and the performer has already been awarded damages in an action under s248J in relation to the same event or transaction, then any damages awarded are to be reduced by the amount of damages already awarded.
460. This item amends sub-s248P(3) to remove the reference to 'broadcasts, or re-broadcasts an authorised recording of a performance' and substitute 'communicates the performance to the public'. This amendment is consequential to the extension of performers' protection to non-broadcast communications of their performances in Part XIA at item 76.
Item 80 After subsection 248P(7A)
461. This item inserts a new sub-s248P(7B). The new provision retains the existing Rome Convention exception that allows indirect sound recordings of performances for the purpose of private or domestic use. As a result, a person who makes an indirect sound recording of a performance for private and domestic use, without the authority of the performer, will not commit an offence under sub-s248P(2). Consequently, unauthorised indirect sound recordings of live performances for private and domestic use will give rise to a civil right of action only.
462. This item amends sub-s248P(8) to remove the reference to 'broadcasts, or re-broadcasts an authorised recording of a performance' and substitute 'communicates the performance to the public'. This amendment is consequential to the extension of performers' protection to non-broadcast communications of their performances in Part XIA at item 76.
Item 82 After paragraph 248U(1)(a)
463. This item inserts new paragraphs 248U(1)(aa), (ab) and (ac).
464. Currently sub-s248U(1) gives guidance as to how the Regulations can apply any of the provisions in Part XIA specified in the Regulations, in relation to a foreign country that is a member of a treaty to which Australia belongs.
465. Article 4 of the Rome Convention, of which Australia is a member, requires member countries to grant to nationals of other Parties the treatment in accords to its own performers where, amongst other circumstances: the maker of a sound recording of the performer's performance is a citizen, national or resident of another member country; the performance was first recorded in another member country; or the performance is carried by a sound or television broadcast made from another member country. These criteria for eligibility for protection under the Rome Convention have been carried over into the WPPT by article 3(2).
466. New paragraph 248U(1)(aa) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to a recording made in another country, of a performance.
467. New paragraph 248U(1)(ab) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to a broadcast made in another country, of a performance.
468. New paragraph 248U(1)(ac) provides that sub-s248U(1) allows the making of regulations to apply protection under the Act in relation to recordings made by persons who are citizens, nationals or residents of another country.
469. This item amends sub-s248V(1). Currently, sub-s248V(1) provides that where it appears to the Governor-General that the law of a foreign country does not give adequate protection to Australian performances due to the nature of the performance, or the nationality, citizenship or country of residence of its performer, the Governor-General may make regulations in relation to that country in accordance with sub-s248V(2). Item 83 extends the Governor-General's power to make regulations to where a law of a foreign country does not give adequate protection to Australian performances due to any of the connecting factors in sub-s248U(1).
470. This item provides that the amendments made by Part 3 apply to acts done in respect of a performance within the protection period of the performance, after the day on which this item commences (even if the performance was given before that day).
471. The effect of this item is that although the amendments made to the part will apply to past performances, the amendments will only apply to acts done after commencement. As an example, a communication other than a broadcast made before commencement of an unauthorised recording of a performance that was given before commencement will not be an unauthorised act for the purposes of sub-s248G(1). In contrast, a communication other than a broadcast made after commencement of an unauthorised recording of a performance that was given before commencement will be an unauthorised act for the purposes of sub-s248G(1). Similarly, the amendments to the definition of 'exempt recordings' in sub-s248A(1), will only apply to recordings made after commencement. The existing Rome Convention exceptions will apply to any recordings made before commencement.
Part 4 - Copying and communicating broadcasts of performances
472. This item inserts a new definition of 'performance' in s135A. The new definition provides that performance has the same meaning as in Part XIA.
473. Previously, it was unnecessary for institutions operating under Part VA to provide remuneration to performers for the copying or communication of broadcasts of performances, as all of these broadcasts would come within paragraph (c) of the definition of 'exempt recording'. However, the more restrictive WPPT compliant exceptions for the copying or communication of broadcasts of performances under Part XIA, as discussed in item 60, have the effect that some copies and communications of broadcasts of performances made by institutions may be unauthorised uses for the purposes of Part XIA. Part 4 extends the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
474. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
475. This item inserts a new definition of 'performer' in s135A. The new definition provides that performer has the same meaning as in Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 87 Section 135A (definition of relevant copyright owner)
476. This item repeals the definition of 'relevant copyright owner'. A new concept of 'relevant right holder' is introduced by item 88, to replace the concept of 'relevant copyright owner'. This amendment is consequential to the extension of ownership of copyright in sound recordings of live performances to performers, as discussed in item 2.
477. This item inserts a new definition of 'relevant right holder' in s135A. 'Relevant right holder' is defined as the owner of the copyright in a work, a sound recording or a cinematograph film, other than a new owner of the copyright in a sound recording of a live performance as defined in s100AB, or a performer in a performance. The concept of 'relevant right holder' replaces 'relevant copyright owner' in recognition that a performer within the meaning of paragraph (b) may not be an owner of copyright. Such a situation may arise where a performance occurs before the commencement of the amendments in Part 1 to Schedule 9.
478. Paragraph (a) of the definition is consequential to the extension of ownership of copyright in sound recordings of live performances to performers, as discussed in item 2.
479. Paragraph (b) of the definition is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 89 After subsection 135E(1)
480. This item inserts new sub-s135E(1A). The new provision provides that each performer is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the conditions in paragraphs (a) to (d) are fulfilled. These conditions replicate the existing conditions for copying and communication of a broadcast in the current sub-s135E(1). Provided that an institution has complied with these conditions, the institution can make or communicate a copy of a broadcast of a performance, without infringing the rights of a performer under Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 90 to 92 Subsection 135E(2), Paragraph 135E(2)(a), Subsection 135E(2)
481. These items extend the operation of existing sub-s135E(2) to new sub-s135E(1A). The effect of these amendments is that where a copy or communication of a broadcast of a performance is used for a purpose other than those outlined in paragraphs 135E(1A)(b) or (c), or is made, sold or otherwise supplied for a financial profit, or is given to an administering body when there is not in force a remuneration notice given by that body to a collecting society, with the consent of the administering body by whom or on whose behalf it is made, then sub-s135E(1A) does not apply, and the copy or communication of the broadcast of a performance will constitute unauthorised use for the purposes of Part XIA. These amendments are consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 93 After subsection 135F(1)
482. Items 93 to 96 extend the operation of s135F to the making and communication of preview copies of broadcasts of performances.
483. Item 93 inserts a new sub-s135F(1A). The new sub-s135F(1A) provides that each performer is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a preview copy of a broadcast of the performance. The effect of this subsection is that no right of action and no offence occur in respect of the preview copy under Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 94 and 95 Subsection 135F(5), Subsection 135F(5)
484. These items extend the operation of sub-s135F(5) to the new sub-s135E(1A). The effect of these amendments is that where a preview copy of a broadcast of a performance is retained under sub-s135F(4), sub-s135E(1A) applies in relation to the copy after the end of the preview period as if the copy had been made solely for a purpose referred to in paragraphs 135E(1A)(b) or (c). This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
485. This item extends the operation of sub-s135F(6) to sub-s135F(1A). The effect of this amendment is that where a preview copy of a broadcast of a performance is neither destroyed within the preview period nor retained under sub-s135F(4), then sub-s135F(1A) does not apply, and the making of the preview copy of the broadcast of a performance will constitute unauthorised use for the purposes of Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 97 At the end of section 135F
486. This item inserts a new sub-s135F(8). The new sub-s135F(8) provides the circumstances in which each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of a performance. These circumstances are based upon the existing circumstances for communication of a preview copy of a broadcast of a work or other subject matter in sub-s135F(7). The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
487. This item amends paragraph 135H(2)(a) to provide that for the purposes of determining equitable remuneration under a records notice, different amounts may also be determined in relation to different classes of performance.
Item 99 Subsections 135J(5) and 135JA(7)
488. This item omits the reference to 'subsections 135E(1) and 135F(1)' and substitutes 'sections 135E and 135F'. This amendment has the effect that if a sampling notice or agreed notice is given by or on behalf of an administering body to the collecting society and the administering body does not comply with one or more of the requirements of the sampling or agreed system, then ss135E and 135F will not apply. As a result, the copying and communication of a broadcast of a performance and the making or communication of a preview copy will constitute unauthorised use for the purposes of Part XIA. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
Item 100 Subparagraph 135KA(a)(i)
489. This item amends subparagraph 135KA(a)(i) to extend the requirement to give a notice, in certain circumstances, that states that the relevant communication and any work or other subject matter in it might be subject to performers protection under the Act. This amendment is consequential to the extension of the statutory licence scheme to copies or communications of broadcasts which would otherwise constitute unauthorised uses under Part VA.
490. This item amends sub-s135P(3) to omit all references to 'relevant copyright owners' and substitute 'relevant right holders'. This amendment is a consequence of the introduction of the concept of 'relevant right holders' as discussed at item 88.
491. This item amends sub-s135Q(b) to omit the reference to 'relevant copyright owners' and substitute 'relevant right holders'. This amendment is a consequence of the introduction of the concept of 'relevant right holders' as discussed at item 88.
Item 103 At the end of section 135Z
492. This item inserts a new sub-s135Z(2). New sub-s135Z(2) provides that nothing in the part affects the right of a performer in a performance included in a broadcast to authorise an administering body to make or cause to be made a sound recording or a cinematograph film of the performance; and to communicate, or cause to be communicated, that recording or film. The effect of this section is to preserve the ability of a performer to consent to making or communicating copies of broadcasts that include their performances outside of the statutory licence scheme in Part VA.
Item 104 At the end of subsection 248G(1)
493. This item adds a note to sub-s248G(1) that provides that an institution can copy and communicate a broadcast of a performance without the authority of the performer in some circumstances under ss135E and 135F.
Item 105 At the end of subsection 248P(8)
494. This item inserts a note to sub-s248P(8) that provides that an institution can copy and communicate a broadcast of a performance without contravening this section in some circumstances under ss135E and 135F.
Item 106 Application of amendments
495. This item provides that the amendments made by Part 4 apply in respect of copies of broadcasts or communications of broadcasts made after the day on which this item commences, even if the performance was given before that day.
Part 5 - Duration of copyright in photographs
496. This item repeals sub-s33(2) and adds a new subsection that extends the application of sub-s33(2) to photographs.
497. Before this amendment, sub-s33(2) set the term of copyright protection for a literary, dramatic or musical work, or an artistic work other than a photograph. Subject to the remainder of s33, if copyright subsisted in the work, it continued until the expiration of 50 years after the expiration of the calendar year in which the author of the work died.
498. Although photographs are categorised as artistic works under the Act, photographs were treated differently to other artistic works, as permitted by article 7(4) of the Berne Convention, and generally had a shorter term of copyright depending on whether the photograph was taken before or after 1 May 1969. Article 9 of the WCT requires Parties not to apply the provisions of article 7(4) of the Berne Convention. These amendments are intended to implement article 9. This change will give photographers equal treatment with other artistic creators and, in most cases, benefit photographers by lengthening the term of protection for photographs. However, there may be exceptions to this rule for some photographs taken after 1 May 1969 and not published until after the death of the author.
499. Items 108 and 116 repeal the provisions which previously set different terms of copyright for photographs.
500. This item repeals sub-s33(6) to bring the term of copyright for photographs taken after 1 May 1969 into line with other artistic works.
501. The repealed provision set the term of copyright protection for photographs taken after the commencement of the Act on 1 May 1969 as the expiration of 50 years after the expiration of the year in which the photograph is first published. This was different to, and usually shorter than, the term of copyright for other artistic works under sub-s33(2), being the life of the author plus 50 years.
502. The repeal of sub-s33(6), together with the amendment to sub-s33(2) at item 107, will give photographs still in copyright the same term of copyright as applies to other artistic works under sub-s33(2). Item 116 makes a similar amendment in relation to photographs taken before 1 May 1969.
503. This item repeals sub-s34(1) and substitutes a new subsection.
504. Currently sub-s34(1) establishes the duration of copyright in anonymous and pseudonymous works. It recognises that the term of copyright cannot be calculated from the death of the author if the author is unknown, and overcomes this problem by providing that the duration of copyright in anonymous and pseudonymous works shall be a specified period after the work is first published.
505. This amendment extends the operation of sub-s34(1) to photographs still covered by copyright. This will give anonymous and pseudonymous photographs the same term of copyright as other such artistic works.
506. This item replaces the words 'the last proceeding subsection' with the words 'Subsection (1)'. This change reflects current drafting practice and gives a clearer meaning.
507. This item replaces the words 'the expiration' with 'the end' to bring the wording of the subsection in line with the terms adopted in other amendments in this Part.
508. This item amends sub-s51(1) to bring the wording of the subsection in line with other amendments in this Part.
509. Subsection 51(1) permits the copying or communication of certain unpublished works that are open for public inspection in libraries or archives after a period of 50 years after the author died. In part, this provision reflects that copyright may subsist indefinitely in old unpublished works in libraries or archives such as manuscripts, diaries and private papers thereby posing difficulties for researchers who may wish to copy or publish extracts of the works.
510. The new wording applies this exception to all unpublished artistic works where a reproduction is kept in the open collection of a library or archives. Previously, unpublished photographs and engravings were the only artistic works covered. This change clarifies that the exception will apply to all unpublished artistic works in which copyright subsists. This amendment does not alter the requirement that, for the exception to operate, more than 50 years must have elapsed since the end of the year in which the author died.
511. This item will remove the reference to s51 in sub-s81(3).
512. The reference to s51 is incorrect since that provision deals with unpublished works while s81 applies only to published works of joint authorship.
Item 114 At the end of section 127
513. This item adds new sub-s127(4) which modifies the operation of the presumption at sub-s127(3) relating to the authorship of photographs.
514. Sections 126 to 131 contain a number of presumptions of fact which may assist plaintiffs in civil actions for infringement of copyright. Subsection 127(3) is a special provision relating to photographs. It provides a presumption, unless the contrary is shown, that the person who took a photograph is the person who owned the material on which the photograph is taken. If this cannot be established, there is a similar presumption in relation to the ownership of the apparatus with which the photograph was taken. If this, in turn, cannot be established the person who owned, or possessed the photograph at the time of their death is presumed to be the author. The wording of these presumptions is connected to the provisions in the Act defining the author of a photograph. If a photograph was taken after the commencement of the Act on 1 May 1969, under subsection 10(1) the author is the person who took the photograph. If a photograph was taken before 1 May 1969, under s208 the author was the owner of the material on which the photograph was taken.
515. The purpose of this amendment is to limit the operation of sub-s127(3) so that it applies only to determining ownership of the copyright in a photograph where the owner of the relevant material or apparatus was a body corporate. This limitation takes into account the possibility that a body corporate may be the 'author' of a photograph under s208 because it was the owner of the material or apparatus used when the photograph was taken. The amendment is to avoid confusion in the interaction of sub-s127(3) with other provisions dealing with the ownership or subsistence of copyright in a photograph which to make sense require a natural person as the author. For example, other amendments in this Part mean that the term of copyright in photographs will be calculated according to the life of the author.
Item 115 At the end of section 208
516. This item adds a new sub-s 208(2).
517. Section 208 provides for the authorship of a photograph taken before the commencement of the Act on 1 May 1969. It provides that the author is the person who owned the material on which the photograph was taken.
518. It is possible that under s208 a body corporate, which owned the material on which the photograph was taken, may be the author of a photograph. New sub-s208(2) provides that this rule applies only where a reference to the author of a photograph relates to ownership of copyright. The new provision will avoid confusion concerning the interaction of sub-s208(1) with other provisions dealing with the ownership or subsistence of copyright in a photograph which to make sense require a natural person as the author. For example, other amendments in this Part mean that the term of copyright in photographs taken before 1 May 1969, and still in copyright, will be calculated according to the life of the author.
519. This item repeals s212 to bring the term of copyright for photographs taken before 1 May 1969 into line with other artistic works.
520. Under s212, the duration of copyright for a photograph taken before the commencement of the Act on 1 May 1969 was 50 years after the expiration of the calendar year in which the photograph was taken.
521. The effect of repealing s212, together with the operation of s207, is that photographs taken before 1 May 1969 will have the same term of copyright as the Act provides for photographs taken after than date, provided copyright still subsists.
522. Under the amendments at items 107 and 109, the duration of copyright in photographs under sub-s33(2) will be made the same as for other artistic works; that is, the life of the author plus 50 years.
523. This item provides that the amendments made by this Part apply to copyright in photographs that subsists on or after the day on which this item commences.
Item 118 Compensation scheme for agreements made before Royal Assent
524. This item enables a person to obtain reasonable compensation from a copyright owner where the extension of copyright term frustrates an agreement made before the date of Royal Assent. It also permits the person to carry out the agreement if the copyright owner does not object or pay reasonable compensation.
525. For the new provision to apply, a person must have entered into an agreement for the purposes of doing an act that would otherwise infringe the copyright, where that agreement was made in reliance on the copyright having ceased to subsist before that time, and because of the amendments made by this Part, the copyright continues to subsist past that time.
526. The new provision provides that the owner of copyright may notify the person that the copyright owner objects to an act before that person does the act. The copyright owner and the person may agree on reasonable compensation that the owner is to provide to the person and the day by which the owner is to provide that compensation. If the person and the owner cannot agree, either of them may apply to the Copyright Tribunal for the tribunal to determine those matters.
527. Where the Tribunal has made such a determination, the person may recover the amount determined by the tribunal from the owner as a debt, if it is not paid by the time determined.
528. If an owner does not notify or pay compensation to the person, the person can do the act at any time after the copyright would have ceased if not for the amendments under this Part.
529. This item is not inserted into the Copyright Act. Instead it is located within the United States Free Trade Agreement Implementation Act 2004.
Item 119 Applications to Copyright Tribunal for determination of reasonable compensation payable
530. This item provides for applications to the Copyright Tribunal for the determination of compensation under item 118.
531. The new provision provides that where an application is made to the Copyright Tribunal under item 118, for the determination of reasonable compensation, then the parties to the application are the owner of the copyright and the person mentioned in that paragraph. The Tribunal must consider the application and make an order determining an amount of compensation that it considers reasonable in all of the circumstances. The definition of 'owner' clarifies that it includes an exclusive licensee of the copyright in the photo at that time in respect of that act.
532. This item is not inserted into the Copyright Act. Instead it is located within the United States Free Trade Agreement Implementation Act 2004.
Part 6 - Duration of copyright in works
533. Pursuant to article 17.4.4 of the Australia - United States Free Trade Agreement, this item extends the duration of copyright protection for a literary, dramatic, musical or artistic work under sub-s33(2) to the end of 70 years after the end of the calendar year in which the author of the work died. This will lengthen the duration of copyright for works previously covered by this provision by 20 years, provided the work is still in copyright.
Item 121 Subsections 33(3) and (5)
534. This item amends sub-ss33(3) and (5) by lengthening the term of copyright under those provisions to the end of 70 years after the end of the year in which the relevant event occurred.
535. On its wording, sub-s33(2) applies to published and unpublished literary, dramatic, musical and artistic works. However, sub-s33(3) sets the term of protection for literary (other than computer programs), dramatic or musical works which are unpublished, have not been broadcast or performed in public and records of which have not been offered for sale to the public at the time of the author's death. Where sub-s33(3) applies, the term of protection is indefinite until such time as one of these acts occurs. The effect of this amendment is to retain this general position but to extend the duration of copyright, if it subsists, from 50 years to 70 years after the end of the year in which the first act occurred.
536. Similarly, sub-s33(5) operates where an engraving has not been published before the death of the author. In that case, copyright, if it subsists, continued to subsist until 50 years after the year in which the engraving is first published. This item retains this position but extends the duration of copyright to 70 years after the end of the year in which the engraving is first published.
537. This item brings sub-s34(1) in line with other amendments in this Part by lengthening the duration of copyright protection in anonymous and pseudonymous works, which are still in copyright, to the end of 70 years after the end of the calendar year in which the work was first published.
538. This item amends sub-s81(2) which makes special rules for the duration of copyright in a work of joint authorship that was first published under two or more names, all of which were pseudonyms.
539. Section 34, as amended by item 122, will provide that the term of copyright in an anonymous or pseudonymous work, will be 70 years after the end of the year of publication. However, s34 ceases to apply if at any time during the 70 years the identity of the author is known or can be ascertained.
540. Subsection 81(2) previously provided that the term of copyright in a pseudonymous work of joint authorship would be calculated from the expiration of the year in which the last known author died if the identity of one or more of the authors was generally known or could be ascertained by reasonable inquiry at any time within 50 years after the expiration of the year in which the work was first published.
541. This amendment extends the period in which the identity of one or more authors may be identified from 50 to 70 years after first publication as a consequence of item 122 and other amendments in this Part which lengthen the term of copyright.
542. This item extends the duration of copyright in sound recordings to the end of 70 years after the end of the calendar year in which the recording was first published.
543. Previously the Act made a distinction between sound recordings made before the commencement of the Act on 1 May 1969 and those made after that date. If a sound recording was made after the commencement of the Act, and copyright subsisted in it, the copyright continued to subsist under s93 for 50 years after the end of the year in which it was first published. If copyright subsisted in a sound recording made before 1 May 1969, it continued to subsist under sub-s220(3) for 50 years after the end of the year in which the recording was made.
544. Subsection 220(3) is repealed by item 130. The effect is that the longer term of copyright introduced in this amendment to s93 will apply to sound recordings made before or after 1 May 1969, provided that copyright subsists in the recording on the day that the amendment commences.
545. This item extends the duration of copyright in cinematograph films to the end of 70 years after the end of the calendar year in which the film was first published.
546. This amendment is made to sub-s94(1) which operates where copyright subsists in a film because the maker was a qualified person or the film was made in Australia. The amendment also is made to sub-s94(2) which applies if copyright subsists in a film due to its first publication in Australia. Previously, the term of copyright under both sub-ss94(1) and (2) was 50 years after the expiration of the year of first publication.
547. The longer term of protection in sub-ss94(1) and (2) will apply to cinematograph films made after the commencement of the Act on 1 May 1969, provided that copyright subsists in the film on the day that this amendment commences. Under s221, copyright as a cinematograph film does not subsist in a film made before 1 May 1969. However, films made before 1 May 1969 can be protected as an original dramatic work or as photographs, and if such copyright subsists on commencement of this Part, they may benefit from the longer term of protection that is given to dramatic works and photographs by item 120.
548. This item amends paragraph 128(a) by omitting '50 years' and substituting '70 years' as a consequence of the amendments increasing the duration of copyright in works.
549. Subsection 128 provides that where a work was first published in Australia in the 50 years preceding the calendar year in which an action for infringement of copyright commenced, and a name purporting to be that of the publisher appeared on copies of the work as first published, copyright is presumed to subsist in the work and the publisher is presumed, unless the contrary is established, to have been the owner of the copyright at the time of publication.
550. This item is intended to maintain the benefit of the presumption at s128 for plaintiffs by having regard to the longer term of copyright protection adopted in this Part.
Item 127 At the end of subsection 132(1)
551. This item adds a note at the end of sub-s132(1) to the effect that a person who makes an agreement before the United States Free Trade Agreement Implementation Act 2004 receives Royal Assent, in accordance with items 118 and 132 of Schedule 9 to that Act, might not commit an offence under this section. It is noted that these items are not inserted into the Copyright Act. Instead they are located within the United States Free Trade Agreement Implementation Act 2004.
Item 128 Paragraphs 187(2)(b) and 188(2)(b)
552. This item amends paragraphs 187(2)(b) and 188(2)(b) by omitting 'the expiration of 50 years after the expiration' and substituting 'the end of 70 years after the end' as a consequence of other amendments increasing the duration of copyright in works, sound recordings and cinematograph films.
553. Paragraphs 187(2)(b) and 188(2)(b) contain special provisions for the duration of copyright in works, sound recordings and cinematograph films published by, or under the direction or control of, prescribed international organizations. Previously, under those provisions, copyright subsisted until the expiration of 50 years after the expiration of the calendar year in with the work, sound recording or cinematograph film was first published. This amendment extends the term of copyright to 70 years after the end of the calendar year in which the work, recording or film was first published, provided copyright subsists on the day this amendment commences.
554. This item amends paragraph 188(3)(b) to bring the wording of the paragraph in line with other amendments in this Part.
555. This item repeals sub-s220(3).
556. Prior to these amendments, the Act distinguished between sound recordings made before the commencement of the Act on 1 May 1969 and sound recordings made after that date. If copyright subsisted in a sound recording made before 1 May 1969, it continued to subsist under sub-s220(3) for 50 years after the end of the year in which the recording was made. Section 93 provided a different duration of copyright for sound recordings made after 1 May 1969.
557. The effect of repealing sub-s220(3) is that, due to s207, sound recordings made before 1 May 1969 will have the same term of copyright as the Act provides for recordings made after than date.
558. Item 124 amends s93 to lengthen the duration of copyright in sound recordings. This longer term of copyright will apply to sound recordings made before 1 May 1969, provided that copyright subsists in the recording on the day that the amendments in this Part commence.
Item 131 Application of amendments
559. This item provides that the amendments made by this Part apply to copyright in works and other subject matter that subsists on or after the day on which this item commences.
Item 132 Compensation scheme for agreements made before Royal Assent
560. This item enables a person to obtain reasonable compensation from a copyright owner where the extension of copyright term frustrates an agreement made before the date of Royal Assent. It also permits the person to carry out the agreement if the copyright owner does not object or pay reasonable compensation.
561. For the new provision to apply, a person must have entered into an agreement for the purposes of doing an act that would otherwise infringe the copyright, where that agreement was made in reliance on the copyright having ceased to subsist before that time, and because of the amendments made by this Part, the copyright continues to subsist past that time.
562. The new provision provides that the owner of copyright may notify the person that the copyright owner objects to an act before that person does the act. The copyright owner and the person may agree on reasonable compensation that the owner is to provide to the person and the day by which the owner is to provide that compensation. If the person and the owner cannot agree, either of them may apply to the Copyright Tribunal for the tribunal to determine those matters.
563. Where the Tribunal has made such a determination, the person may recover the amount determined by the tribunal from the owner as a debt, if it is not paid by the time determined.
564. If an owner does not notify or pay compensation to the person, the person can do the act at any time after the copyright would have ceased if not for the amendments under this Part.
565. This item is not inserted into the Copyright Act. Instead it is located within the United States Free Trade Agreement Implementation Act 2004.
Item 133 Applications to Copyright Tribunal for determination of reasonable compensation payable
566. This item provides for applications to the Copyright Tribunal for the determination of compensation under item 132.
567. The new provision provides that where an application is made to the Copyright Tribunal under item 132, for the determination of reasonable compensation, then the parties to the application are the owner of the copyright and the person mentioned in that paragraph. The Tribunal must consider the application and make an order determining an amount of compensation that it considers reasonable in all of the circumstances. The definition of 'owner' clarifies that it includes an exclusive licensee of the copyright in the photo at that time in respect of that act.
568. This item is not inserted into the Copyright Act. Instead it is located within the United States Free Trade Agreement Implementation Act 2004.
Part 7 - Electronic rights management information
569. The items in this Part implement obligations under Article 17.4.8 of the Australia - United States Free Trade Agreement that relate to electronic rights management information (ERMI). ERMI typically includes details about the copyright owner and the terms and conditions of the use of copyright material that is electronically attached to, or appears in connection with, the material. The Act already includes provisions protecting ERMI and provides for civil remedies and criminal offences where ERMI is altered or removed. The existing provisions apply to ERMI that is attached to a copy of a work or other subject-matter. Under the Agreement, protection of ERMI, including both civil remedies and criminal offences, is extended to include ERMI that is separate from, but has at some point in time appeared in connection with a copy of the work or other subject matter. This Part effectively broadens the protection afforded to ERMI in the Act.
Item 134 Subsection 10(1) (definition of electronic rights management information)
570. This item repeals the current definition of 'electronic rights management information' (ERMI) in sub-s10(1) and substitutes a new definition for that term. The new definition makes it explicit that the definition only covers information that is electronic. Under the existing definition, ERMI has to be 'attached to, or embodied in, a copy of a work or other subject-matter'. The new definition retains this as well as the other existing elements of the current definition and extends the definition to also cover information that appears in connection with a copy of a work or other subject-matter. ERMI is also able to exist independently of the work or other subject-matter providing that it was originally attached to or appeared in connection with a copy of the work or other subject-matter.
571. This item repeals the current paragraph 116B(1)(a) concerning the removal or alteration of ERMI and substitutes a new paragraph 116B(1)(a). The amendment is a consequence of the broadening of the definition of ERMI to cover information that had been attached to, or appeared in connection with, a copy of a work or other subject-matter. While retaining the elements of the current paragraph 116B(1)(a) the new provision ensures that a civil remedy is also available where the ERMI appears in connection with the copyright material.
Item 136 Subparagraph 116C(1)(a)(i)
572. This item repeals the current subparagraph 116C(1)(a)(i) and substitutes a new subparagraph 116C(1)(a)(i) so that the requirement that distribution be 'for the purpose of trade' is no longer included. The new provision applies where a person distributes a copy of the work or other subject-matter to the public. The current heading to s116C is also replaced with a new heading 'Distribution to the public etc of works whose electronic rights management information has been removed or altered.'
Item 137 Subparagraph 116C(1)(a)(ii)
573. This item amends subparagraph 116C(1)(a)(ii) by omitting the phrase 'for the purpose of trade' and substituting the term 'for distribution to the public'. The amended provision applies where a person imports into Australia a copy of the work or other subject-matter for distribution to the public.
574. This item repeals the current paragraph 116C(1)(b) and substitutes a new paragraph 116C(1)(b) so that the requirement that ERMI be attached to the copyright material is no longer included. The new provision ensures that a civil action may be brought by the owner or licensee of the copyright for removal or alteration of ERMI whether the ERMI is attached to or appears in connection with the work or other subject-matter.
575. This item inserts a new s116CA and a new s116CB.
New 116CA Distribution and importation of electronic rights management information that has been removed or altered
576. The Act currently does not have any provision that proscribes dealing with ERMI that has been removed from the work or other subject-matter, or altered, without authority. New sub-ss116CA(1) and 116CA(2) ensure that a civil action may be brought by the owner or exclusive licensee of the copyright for the distribution of ERMI or the importing of ERMI for distribution where that ERMI has been removed from a copy of the work or subject-matter, or altered, without the permission of the owner or licensee of the copyright. For the action to be available the person who distributes or imports the ERMI must have known that the ERMI had been removed or altered without that permission and have known, or ought reasonably to have known, that the distribution of importing would induce, enable, facilitate or conceal an infringement of copyright. This mirrors the knowledge requirements in current sub-ss116C(1)(c) and 116C(1)(d) in relation to the new cause of action.
577. New sub-s116CA(3) contains a presumption in relation to the knowledge elements in paragraphs 116CA(1)(d) and 116CA(1)(e) that mirrors the presumption in current sub-s116C(3) in relation to the new cause of action.
New 116CB Exception relating to national security and law enforcement
578. New s116CB inserts a new provision that states that none of the causes of action in relation to ERMI set out in ss116B to 116CA apply where something is lawfully done for the purposes of law enforcement or national security by or on behalf of the Commonwealth or a State or Territory; or an authority of the Commonwealth, a State or a Territory.
Item 140 Subsections 116D(1) and (2)
579. This item amends s116D that deals with remedies in civil actions relating to ERMI. The amendment ensures that this provision applies to the new s116CA.
Item 141 Subsections 132(5C) and (5D)
580. This item repeals current sub-ss132(5C) and 132(5D) and inserts new sub-ss132(5C), 132(5D) and 132(DA) concerning offences relating to ERMI and ensure that the offences not only apply where the ERMI is or was attached to a copy of a work or other subject-matter but also where the ERMI appears or appeared in connection with a copy of a work or other subject-matter.
Offences relating to electronic rights management information
581. New sub-s132(5C) proscribes the removal or alteration of ERMI from a work or other subject-matter in which copyright subsists, except with the permission of the copyright owner or licensee. The offence applies where the person is reckless as to whether the removal or alteration of the ERMI will induce, enable, facilitate or conceal an infringement of the copyright.
582. New sub-s132(5D) proscribes the commercial distribution, commercial importation or communication to the public of a copy of a work or other subject-matter, without the permission of the copyright owner or licensee of the copyright, if any ERMI has been removed or altered. In relation to the offences relating to distribution and importation, the acts must have been carried out with the intention of trading and obtaining a commercial advantage or profit, which is consistent with other new criminal provisions in this Schedule. The first requisite mental element for each offence in new sub-s132(5D) is that the defendant knows that the ERMI has been removed or altered without the permission of the copyright owner or licensee. The second requisite mental element is that the defendant is reckless as to whether, the doing of the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
583. New sub-s132(5DA) proscribes the distribution of ERMI and the importation of ERMI that has been altered or removed, without the permission of the copyright owner or the licensee of the copyright. The acts must have been carried out with the intention of trading and obtaining a commercial advantage or profit, which is consistent with other new criminal provisions in this Schedule. The first requisite mental element for each offence in new sub-s132(5DA) is that the defendant knows that the ERMI has been removed or altered without the permission of the copyright owner or licensee. The second requisite mental element is that the defendant is reckless as to whether, the doing of the act referred to in paragraph (b) will induce, enable, facilitate or conceal an infringement of the copyright.
584. The fact that the word 'knows' in current sub-ss132(5C) and 132(5D) has not been included in new sub-ss132(5C), 132(5D) or 132(5DA) is of no significance and results from the fact that under the Criminal Code if the lesser standard of recklessness is proved, it would also cover the situation where the defendant had the requisite knowledge.
Item 142 After subsection 132(5E)
Defence for certain public institutions etc
585. This item inserts a new sub-s132(5EA) and provides a specific exception from the offences in relation to ERMI for the lawful activities of certain public institutions in performing their functions. These public institutions are listed in sub-s132(5EA). The exception applies to the following bodies: a library (other than a library that is conducted for the profit, direct or indirect, of an individual or individuals); archives; an educational institution; and a public non-commercial broadcaster, including a body that provides a national broadcasting service within the meaning of the Broadcasting Services Act 1992 or a body that holds a community broadcasting licence within the meaning of that Act. In relation to 'archives' and 'educational institution', these terms are defined in sub-s10(1).
586. This item amends sub-s132(5J) to add new sub-s132(5EA) to the existing list of provisions covered by sub-s132(5J) in relation to the evidential burden imposed on the defendant in relation to the listed provisions. It is considered that the matters referred to in sub-s132(5EA) will be peculiarly within the knowledge of the defendant, and will be significantly more costly for the prosecution to disprove than for the defendant to establish. The amendment provides that the only burden of proof the defendant bears in respect of sub-s132(5EA) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the act was done, or matter in question existed.
587. This item amends sub-s134(2) to add sub-s116CA to the list of sections referred to in sub-s134(2) which deals with limitations of actions in respect of infringement of copyright.
Item 145 Application of amendments
588. This item provides that the amendments made by this Part apply in respect of acts done after the day on which this item commences.
Part 8 - Criminal offences
589. The items in this Part implement obligations under Article 17.11.26 of the Australia - United States Free Trade Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful copyright piracy on a commercial scale. Under the Agreement, wilful copyright piracy on a commercial scale includes significant wilful infringements of copyright that have no direct or indirect motivation of financial gain and wilful infringements for the purposes of commercial advantage or financial gain.
590. It is intended that the expression 'commercial advantage' where used in the offences in the Act may include circumstances where a business has knowingly infringed copyright material for the purpose of commercial gain. It is also intended that the expression 'profit' where used in the offences in the Act may include circumstances where a person (whether a business entity or not) commits an infringement by knowingly selling copyright material.
Item 146 Paragraphs 132(1)(b) and (c)
591. This items inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in paragraphs 132(1)(b) and (c). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
592. This item amends paragraph 132(1)(b) so that it is an offence where a person, by way of trade and with the intention of obtaining a commercial advantage or profit, offers or exposes for sale or hire, an article that they know or ought reasonably to know to be an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
593. This item also amends paragraph 132(1)(c) so that it is an offence where a person by way of trade and with the intention of obtaining a commercial advantage or profit, exhibits a copyright article in public that they know or ought reasonably to know to be an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
594. In accordance with current drafting practices, Note 1 inserts the heading 'Offences relating to infringing copies' to sub-s132(1). This is intended to assist readers to identify the content of the provision.
Item 147 Subparagraph 132(1)(d)(i)
595. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 132(1)(d)(i). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
596. This item amends subparagraph 132(1)(d)(i) so that it is an offence where a person imports a copyright article into Australia by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing for sale of hire, that they know or ought reasonably to know to be an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 148 Subparagraph 132(1)(d)(ii)
597. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 132(1)(d)(ii). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
598. This item amends subparagraph 132(1)(d)(ii) so that it is an offence where a person imports a copyright article into Australia for the purpose of distributing the article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, that they know or ought reasonably to know to be an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 149 Subparagraph 132(1)(d)(iii)
599. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 132(1)(d)(iii). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
600. This item amends subparagraph 132(1)(d)(iii) so that it is an offence where a person imports a copyright article into Australia for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, exhibiting the article in public that they know or ought reasonably to know to be an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
601. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in paragraph 132(2)(a). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
602. This item amends paragraph 132(2)(a) so that it is an offence where a person distributes a copyright article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, where the person knows or ought reasonably to know, that the article is an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
603. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in paragraph 132(2A)(a). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
604. This item amends paragraph 132(2A)(a) so that it is an offence where a person has in his or her possession a copyright article for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing for sale or hire, the article, where the person knows or ought reasonably to know, that the article is an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
605. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in paragraph 132(2A)(b). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
606. This item amends paragraph 132(2A)(b) so that it is an offence where a person has in his or her possession a copyright article for the purpose of distributing the article for the purpose of trade and with the intention of obtaining a commercial advantage or profit, where the person knows or ought reasonably to know, that the article is an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
607. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in paragraph 132(2A)(c). This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material (see item 158). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
608. This item amends paragraph 132(2A)(c) so that it is an offence where a person has in his or her possession a copyright article for the purpose of by way of trade and with the intention of obtaining a commercial advantage or profit, exhibiting the article in public where the person knows or ought reasonably to know, that the article is an infringing copy of the work. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
609. In accordance with current drafting practices, notes at the foot of Item 153 insert new headings to assist readers identify the subject matter of certain provisions. Note 1 inserts the heading 'Offence relating to infringing public performances of literary, dramatic or musical works' to subsection 132(5). Note 2 inserts the heading 'Offences relating to sound recordings or films heard or seen in public' to sub-s132(5AA). Note 3 inserts the heading 'Offences relating to circumvention services and devices' to sub-s132(5A).
Item 154 Before subsection 132(5E)
Offence relating to significant infringement of copyright
610. This item inserts new sub-s132(5DB) a new offence relating to a significant infringement of copyright on a commercial scale. Under the new provision, a person commits an offence if they engage in conduct that results in one or more infringements of the copyright in a work or other subject-matter; the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and the infringement or infringements occur on a commercial scale. The offence is intended to implement the obligation under the Agreement that criminal procedures and remedies apply to a person who has committed significant wilful infringement of copyright on a commercial scale who may be acting with no direct or indirect motivation of financial gain. This enables the offence to impose criminal liability on a person acting with no direct or indirect motivation of financial gain in certain circumstances. Note that the fault elements of the Criminal Code Act 1995 apply.
611. This item also inserts a new sub-s132(5DC) to clarify that certain matters are to be taken into account in determining whether one or more infringements on a commercial scale under sub-s132(5DB) occurs. These include the volume and value of any articles that are infringing copies that constitute the infringement or infringements. This provision is non-exhaustive because the factors that may be relevant to the question of determining whether one or more infringements on a commercial scale has occurred may be wider than those specified.
612. This item amends sub-s132(5E) to provide that sub-ss(5C), (5D) and the new sub-ss132 (5DA) and 132(5DB) do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of a Commonwealth, State or Territory or an authority of the Commonwealth, State or Territory. This law enforcement/national security exception currently applies to offences in sub-ss132(5A) and (5B).
613. In accordance with current drafting practices, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions. Note 1 inserts the heading 'Defence relating to law enforcement and national security' to sub-s132(5E). Note 2 inserts the heading 'Permitted purpose exceptions' to sub-s132(5F). Note 3 inserts the heading 'Section applies only in respect of acts done in Australia' to sub-s132(6). Note 4 inserts the heading 'Penalties' to sub-s132(6AA).
614. This item amends sub-s132(6A) to provide that a person who contravenes new sub-ss132 (5DA) or 132(5DB) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.
615. In accordance with current drafting practices, the note at the foot of this item inserts the heading 'Proceedings may be brought in Federal Court etc' to sub-s132(7). This is intended to assist readers identify the content of the provision.
616. This item inserts a definition of 'copyright material' to mean a work, published edition of a work, sound recording, cinematograph film, television or sound broadcast, or a work that is included in a sound recording, a cinematograph film or a television or sound broadcast. The same definition is used in s182B of the Act and, for reasons of consistency, it is necessary to include it in sub-s132(9) because the expression 'copyright material' is included in the definition of 'profit' in the same section under item 158.
617. In accordance with current drafting practices, the note at the foot of this item inserts the heading 'Definitions' to sub-s132(9). This is intended to assist readers identify the content of the provision.
618. This items inserts a definition of 'profit' into sub-s132(9) to provide that profit does not include any advantage, benefit or gain resulting from or associated with private or domestic use of any copyright material in the work or other subject-matter. This definition ensures that a person cannot be subject to criminal proceedings where, for example, they have obtained an infringing copy of copyright material for their own private use. 'Domestic use' can include use involving another person. Where there are private or domestic uses and there are also commercial uses of the copyright material, the fact that there is a private or domestic use is not intended to exclude any liability that results from the commercial use.
Item 159 At the end of section 132
Burden of proof relating to profit
619. This item inserts a new sub-s132(11) which provides that, in a prosecution for an offence against s132, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.
620. This item provides that the amendments made by this Part apply to acts done after the day on this item commences. Accordingly, the provisions do not operate retrospectively.
Part 9 - Amendments Relating To Broadcast Decoding Devices
621. The items in Part 9 implement obligations under Article 17.7 of the Australia - United States Free Trade Agreement to provide for criminal offences and civil remedies in respect of devices used to decode encrypted program-carrying signals, and in relation to receiving, making use of, and further distributing program carrying signals. This obligation in relation to enhancing protection against pay television piracy is implemented on a technology-neutral basis, extending coverage to all relevant modes of delivery of encrypted program-carrying broadcast signals, including cable.
622. This item inserts a definition of 'channel provider' into s135AL to provide that channel provider means a person who packages a channel (which might include programs produced by the person); supplies a broadcaster with the channel; and carries on a business that involves the supply of the channel. An additional requirement for the definition to apply is that, apart from any breaks for the purposes of the transmission of incidental matter, the channel is broadcast as part of an encoded broadcast service. This definition is based on a definition in s103C of the Broadcast Services Act 1992.
623. This item inserts a definition of 'copyright material' to mean a work, published edition of a work, sound recording, cinematograph film, television or sound broadcast, or a work that is included in a sound recording, a cinematograph film or a television or sound broadcast. The same definition is used in s182B of the Act and, for reasons of consistency, it is necessary to include it in sub-s135AL to ensure that the expression 'copyright material' in the definition of 'profit' in s135AL (in item 163) has the same meaning.
624. This item inserts a definition of 'profit' into s135AL to provide that profit does not include any advantage, benefit or gain resulting from, or associated with, private or domestic use of copyright material. This definition is consistent with corresponding changes being made to the general criminal law provisions in s132. The definition ensures that a person cannot be subject to criminal proceedings where they have obtained an advantage, benefit or gain resulting from or associated with private or domestic use of any copyright material. Such persons may still be subject to a civil action. Where there are private or domestic uses and there are also commercial uses of the copyright material, the fact that there is a private or domestic use is not intended to exclude any liability that results from the commercial use.
Item 164 Subparagraph 135AN(1)(b)(iii)
625. This item amends subparagraph 135AN(1)(b)(iii) to provide that civil action may be brought in respect of the export of a broadcast decoding device from Australia for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster. As with all the other acts in paragraph 135AN(1)(b), the action may be brought against a person where a broadcaster has made an encoded broadcast and where that person knew, or ought reasonably to have known, that the broadcast decoding device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. Although the concept of distribution in s135AN is likely to include 'exporting', this provision makes it clear that it does.
626. In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions. Note 1 inserts the heading 'Actions in relation to the manufacture of and dealing with broadcast decoding devices' to sub-s135AN(1). Note 2 inserts the heading 'Exception relating to law enforcement and national security' to sub-s135AN(2).
627. This item repeals current sub-s135AN(3) and inserts a new sub-s135AN(3) to expand the category of persons who can bring a civil action against a person for an alleged contravention of sub-s135AN(1). Under new paragraphs 135AN(3)(a)-(c) a person may bring a civil action for an alleged contravention of sub-s135AN(1), if that person has an interest in the copyright in the broadcast, an interest in copyright in the content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast.
628. In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions. Note 1 inserts the heading 'Relief etc' to sub-s135AN(4). Note 2 inserts the heading 'Presumption relating to defendant's knowledge' to sub-s135AN(7). Note 3 inserts the heading 'Limitation on bringing actions' to sub-s135AN(8).
629. This item is a technical amendment that substitutes 'this subsection' for 'this section' in sub-s135ANA(1). This is necessary because of the proposed insertion of sub-s(1A) under item 169, which introduces another form of civil contravention.
630. In accordance with current drafting practice, notes at the foot of this item insert new headings to assist readers identify the subject matter of certain provisions. Note 1 provides that the heading to section 135ANA is altered by omitting 'for commercial purposes'. This reflects the repeal of paragraph 135ANA(1)(c) by item 168. Note 2 inserts the heading 'Actions in relation to the use of broadcast devices' to sub-s135ANA(1).
Item 167 Paragraph 135ANA(1)(b)
631. This item is a minor technical amendment which clarifies that the encoded broadcast referred to in paragraph 135ANA(1)(b) is the same encoded broadcast referred to in paragraph 135ANA(1)(a). This ensures that a civil action can only be brought in respect of the encoded broadcast which has been made by the broadcaster under paragraph 135ANA(1)(a), rather than any encoded broadcast.
Item 168 Paragraph 135ANA(1)(c)
632. This item repeals paragraph 135ANA(1)(c). The effect of this amendment is that the existing civil action provision for the unauthorised use of a decoding device is extended from unauthorised use for commercial purposes to cover the unauthorised use for any purpose (including private purposes) of broadcast decoding devices.
Item 169 After subsection 135ANA(1)
633. This item inserts a new sub-s135ANA(1A) to provide that a person may be subject to a civil action in circumstances where a broadcast decoding device has been used to gain access to an encoded broadcast without the authorisation of the broadcaster; that person has further distributed the encoded broadcast; that person knows that the broadcaster had not authorised access to the broadcast; and the distribution affects prejudicially a person with either an interest in the copyright in the broadcast, an interest in copyright in any content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast. This new provision is intended to apply where a person has engaged in further distribution of an encoded broadcast after the person has accessed the encoded broadcast without the authorisation of the broadcaster. This goes beyond the civil provision in s135ANA of the Act which allows civil action to be brought in respect of unauthorised use of a broadcasting device alone.
634. This item also inserts a new sub-s(1B) to provide that a person may be subject to a civil action in circumstances where a broadcast decoding device has been used to gain access to an encoded broadcast without the authorisation of the broadcaster; that person has received the broadcast that has been accessed by the device; that person knew that the broadcaster had not authorised the access to the encoded broadcast. This provision is intended to apply where a person has not used a broadcast decoding device to gain unauthorised access to an encoded broadcast, but has accessed the encoded broadcast knowing that it had been accessed without the authorisation of the broadcaster.
635. In accordance with current drafting practice, a note at the foot of this item inserts a new heading to assist readers identify the subject matter of certain provisions. The note inserts the heading 'Exception relating to law enforcement and national security' to sub-s135ANA(2).
636. This item repeals current sub-s135ANA(3) and inserts a new sub-s135ANA(3) to expand the category of persons who can bring a civil action against a person for an alleged contravention of sub-s135ANA(1), (1A) or (1B). Under new paragraphs 135ANA(3)(a)-(c) a person may bring a civil action for an alleged contravention of sub-ss135ANA(1), (1A) or (1B), if that person has an interest in the copyright in the broadcast, an interest in copyright in any content of the broadcast, or is a channel provider who supplies the broadcaster with the channel for the broadcast.
637. In accordance with current drafting practice, a note at the foot of this item inserts the heading 'Relief etc' to assist readers identify the subject matter of sub-s135ANA(4).
Item 171 Paragraph 135ANA(5)(a)
638. This item amends paragraph 135ANA(5)(a) to include ', or (1A)(c) or (1B)(c)' after 'paragraph (1)(b)'. The effect of this amendment is that a court may, in considering an award of damages, have regard to the flagrancy with which the defendant did an act described in paragraph 135ANA(1A)(c) or (1B)(c), ie a distribution, or the authorisation of a distribution of an encoded broadcast, or receiving a broadcast that has been accessed by a decoding device without the authorisation of the broadcaster.
Item 172 Paragraph 135ANA(5)(b)
639. This item amends paragraph 135ANA(5)(b) to substitute 'any trade' with 'the trade' that is carried on by, or in association with the defendant. This is necessary to reflect the repeal of paragraph 135ANA(1)(c) which contained the element that a person uses, or authorises the use, of a broadcast decoding device for the purposes of, or in connection with, a trade or business carried on by, or in association with, the person. The expression 'the trade' referred to the trade in repealed paragraph 135ANA(1)(c).
640. This item amends sub-s135ANA(7) to include ', (1A)(c) or (1B)(c)' after 'paragraph (1)(b)'. The effect of this amendment is that an action cannot be brought against a person under s135ANA in respect of an act in paragraph 135ANA(1A)(c) (ie a distribution, or the authorisation of a distribution of an encoded broadcast) or paragraph 135ANA(1B)(c) (ie the receiving of a broadcast that has been accessed by a broadcast decoding device) after the expiration of 6 years from the time when the person did the act.
641. In accordance with current drafting practice, a note at the front of this item inserts the heading 'Limitation on bringing actions' to assist readers identify the subject matter of sub-s135ANA(7).
Item 174 Paragraph 135AS(1)(b)
642. This item amends paragraph 135AS(1)(b) to include the phrase 'and with the intention of obtaining a commercial advantage or profit'. This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
643. The effect of this amendment is that it will be an offence where, by way of trade and with the intention of obtaining a commercial advantage or profit, a person offers or exposes for sale of hire, a broadcast decoding device, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
644. In accordance with current drafting practices, a note at the front of this item inserts the heading 'Offences in relation to manufacture of or dealing with broadcast decoding devices' to assist readers identify the subject matter of sub-s135AS(1).
Item 175 Paragraph 135AS(1)(c)
645. This item repeals current paragraph 135AS(1)(c) and inserts a new paragraph 135AS(1)(c) to make it an offence to distribute, including by exporting from Australia, a broadcast decoding device with the intention of trading and obtaining a commercial advantage or profit, or in any other activity that will affect prejudicially a broadcaster. This implements the requirement under article 17.7.1 of the Agreement for the creation of a criminal offence where a person has exported a broadcast decoding device. Although the export of a broadcast decoding device is likely to be covered by the existing 'distribution' element in the current offence, the amendment makes it clear that this is the case.
646. New paragraph 135AS(1)(c) includes the phrase 'and with the intention of obtaining a commercial advantage or profit'. This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
647. The effect of this amendment is that it will be an offence where a person distributes a broadcast decoding device with the intention of trading and with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 176 Paragraph 135AS(1)(d)
648. This items amends paragraph 135AS(1)(d) to include the phrase 'and with the intention of obtaining a commercial advantage or profit'. This implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
649. The effect of this amendment is that it will be an offence where a person exhibits a broadcast decoding device in public by way of trade and with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 177 Subparagraph 135AS(1)(e)(i)
650. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 135AS(1)(e)(i). This reflects corresponding changes that are being made to the general criminal law offences in s132. It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
651. The effect of this amendment is that it will be an offence for a person to import a broadcast decoding device into Australia by way of trade and with the intention of obtaining a commercial advantage or profit, offering or exposing the device for sale or hire, if the person knows, or is reckless as to whether, the device will be used to enable access to encoded broadcasts without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 178 Subparagraph 135AS(1)(e)(ii)
652. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 135AS(1)(e)(ii). This reflects corresponding changes that are being made to the general criminal law offences in s132. It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
653. The effect of this amendment is that it will be an offence where a person imports a broadcast decoding device into Australia with the intention of distributing the device for trading with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 179 Subparagraph 135AS(1)(e)(iii)
654. This item inserts the phrase 'and with the intention of obtaining a commercial advantage or profit' in subparagraph 135AS(1)(e)(iii). This reflects corresponding changes that are being made to the general criminal law offences in section 132. It implements the requirement under the Agreement to provide for criminal procedures and penalties to be applied at least in cases of wilful infringements for the purposes of commercial advantage or financial gain. Instead of the expression 'financial gain', the term 'profit' is included with the qualification that 'profit' be defined to exclude any advantage, benefit or gain resulting from, or associated with private or domestic use of copyright material (see item 163). Such a definition is consistent with the Government's policy that the copyright law should not unduly intrude into the private sphere.
655. The effect of this amendment is that it will be an offence where a person imports a broadcast decoding device into Australia with the intention of exhibiting the device in public by way of trade with the intention of obtaining a commercial advantage or profit, if the person knows, or is reckless as to whether, the device will be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster. This clarifies that the offence provision will apply where a person is intending to obtain a commercial advantage or profit.
Item 180 At the end of subsection 135AS(1)
656. This item inserts a cross-referencing note to the definition of profit in s135AL.
Item 181 After subsection 135AS(1)
657. This item inserts sub-s135AS(1A) to provide a new offence in relation to the use of broadcast decoding devices for commercial advantage or profit. Under the new subsection, a person will commit the offence if, amongst other things, they make use of, or authorise use of, an encoded broadcast to gain access to an encoded broadcast without the authorisation of the broadcaster. To come within the offence, a person must act with the intention of obtaining a commercial advantage or profit and, be reckless as to whether, the broadcaster has not authorised the access to the broadcast. This implements the obligation under article 17.7 of the Agreement that a criminal offence be created that covers conduct amounting to 'receiving and making use' of an encoded broadcast that has been decoded without the authorisation of the broadcaster. Note that the fault elements of the Criminal Code Act 1995 apply. This conduct does not come within the s135AS offence.
658. A note at the foot of sub-s135AS(1A) inserts a cross-reference to the term 'profit' which is defined in s135AL.
659. This item also inserts sub-s135AS(1B) to provide a new offence in relation to the distribution of an encoded broadcast that has been accessed without authorisation. Under the elements of the new offence, the distribution of the encoded broadcast must prejudicially affect a person who has an interest in any copyright in the broadcast, an interest in copyright in the content of the broadcast, or who is a channel provider who supplies the broadcaster with the channel for the broadcast. To come within the offence, a person must know the broadcaster had not authorised the access to the broadcast. This new offence provision is intended to apply where a person has engaged in further distribution of an encoded broadcast after the person has gained unauthorised access to the encoded broadcast. This goes beyond the criminal provision in s135AS of the Act.
660. This item substitutes 'This section' for 'Subsection (1)' in sub-s135AS(2) to reflect the insertion of new offences (sub-ss135AS(1A) and (1B)) in s135AS.
661. In accordance with current drafting practices, a note at the front of this item inserts the heading 'Defence relating to law enforcement and national security' to assist readers identify the subject matter of sub-s135AS(2).
Item 183 After subsection 135AS(3)
662. This item inserts a new sub-s135AS(3A) which provides that, in a prosecution for an offence against s135AS, the burden of proving that any advantage, benefit or gain does not result from or is not associated with any private or domestic use of the copyright material on the work or other subject matter is on the prosecution. This retains the onus of proof in respect of this matter on the prosecution and is consistent with Commonwealth criminal law policy.
663. In accordance with current drafting practice, a note at the foot of this item insert the heading 'Burdens of proof' to assist readers identify the subject matter of sub-s135AS(3).
664. This item inserts ',(1A) or (1B)' after 'subsection (1)' in sub-s135AS(4). The effect of this amendment is that a person who contravenes sub-ss135AS(1A) and (1B) is guilty of an offence punishable on summary conviction by a fine not more than 550 penalty units and/or imprisonment for not more than 5 years. This is same penalty level for the offence in sub-s135AS(1).
665. In accordance with current drafting practices, a note at the foot of this item inserts the heading 'Penalty for contravening section' to assist readers identify the subject matter of sub-s135AS(4).
Item 185 Application of amendments
666. This item provides that the amendments made by this Part apply to broadcasts made after the commencement of the Bill. Accordingly, the provisions do not operate retrospectively.
Part 10 - Reproductions
667. The items in this Part implement the requirement in Article 17.4.1 of the Australia - United States Free Trade Agreement that each party shall provide that the categories of persons listed in that Article 'have the right to authorise or prohibit all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form)' of their works (including cinematograph films), performances as fixed in a phonogram, and phonograms. It also reflects the right each party has, under Article 17.4.10, to create limitations or exceptions to exclusive rights where the limitations or exceptions apply to 'certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder'.
Item 186 Subsection 10(1) (definition of material form)
668. This item repeals the current definition of 'material form' in sub-s10(1) and substitutes a new definition for that term. Under the current Act, reproductions that are capable of further reproduction have copyright protection. Under the new definition, to be in 'material form' the form of the work or adaptation of a work no longer needs to be capable of reproduction. A work or an adaptation of a work is in 'material form' in any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, whether or not it can be reproduced. When the definition is applied with s31 concerning copyright in original works, it means that copyright applies to all reproductions, in any manner or form, permanent or temporary.
Item 187 After subsection 10(4)
669. Item 187 inserts new sub-s10(5) and sub-s10(6). New sub-s10(5) provides that for the purposes of the definition of copy in sub-s10(1), such a copy includes any form (whether visible or not) of storage of a cinematograph film, or a substantial part of a cinematograph film, (whether or not the copy of the film, or a substantial part of the film, can be reproduced). When applied with paragraph 86(a) of the Act concerning the nature of copyright in cinematographic films, the effect of this amendment is that copyright applies to all copies of a cinematographic film in any manner or form permanent or temporary.
670. New sub-s10(6) provides that for the purposes of paragraph 10(3)(c), a reference to a copy of a sound recording includes any form (whether visible or not) of storage of the sound recording, or a substantial part of the sound recording, (whether or not the copy of the recording, or a substantial part of the recording, can be reproduced). When applied with paragraph 85(1)(a) of the Act concerning the nature of copyright in sound recordings, the effect of this amendment is that copyright applies to all copies of a sound recording in any manner or form permanent or temporary.
New 43B Reproduction of works as part of a technical process of use
671. This item inserts a new s43B to provide an exception to infringement for reproductions of a work where the reproduction is incidentally made as part of a technical process of using a copy of the work. The extended definition of 'material form' effectively extends the application to all reproductions made in using copyright material. It will include, for example, electronic copies of a transitory nature made in the random access memory (RAM) of digital devices such as computers, DVD and compact disc players. In order that users of copyright material are not potentially liable for copyright infringement for the normal use of non-infringing copyright material an exception is required.
672. New sub-s43B(1) provides that the copyright in a work is not infringed by the making of a reproduction of the work if the reproduction is incidentally made as part of a technical process of using a copy of the work.
673. New sub-s43B(2) provides that the exception in sub-s43B(1) does not apply if the reproduction is made from an infringing copy of the work.
674. Section 47B continues to allow for a variety of computer program licences to operate, while the new exception ensures that users may continue to use non-infringing copyright material.
New 111B Reproduction of subject-matter as part of a technical process of use
675. This item inserts a new s111B to provide a corresponding exception to that in sub-s43B(1) in relation to infringement for reproductions of subject-matter other than works. New sub-s11B(1) provides that the exception applies where the reproduction is incidentally made as part of a technical process of using a copy of the subject matter. New sub-s111B(2) provides that the exception in sub-s111B(1) does not apply if the reproduction is made from an infringing copy of the subject-matter.
676. This item provides that the amendments made by this Part apply in respect of acts done after the day on which this item commences.
Part 11 - Limitation on remedies available against carriage service providers
677. The items in this Part implement obligations under Article 17.11.29 of the Australia - United States Free Trade Agreement. The provisions limit remedies available against carriage service providers for infringements of copyright that relate to the carrying out of activities specified in Article 17.11.29(b)(i)(A) - (D) by carriage service providers. The provisions also detail the nature of the limitations in accordance with Article 17.11.29 and set out the conditions referred to in that Article that must be satisfied before the limitations apply. The obligations in respect of some of the conditions, notably those concerning notifications and counter-notifications referred to in Articles 17.11.29(iv) - (x) will be prescribed in regulations that will come into effect at the same time as new Division 2AA.
Item 191 After Division 2 of Part V
678. This item inserts Division 2AA.
Division 2AA - Limitation on remedies available against carriage service providers
679. New Subdivision A of Division 2AA provides information on the purpose of the Division, the relationship of the Division to other parts of the Act and definitions of relevant terms.
New 116AA Purpose of this Division
680. New sub-s116AA(1) sets out the purpose of the new Division. The Division limits the remedies that are available against carriage service providers for infringements of copyright where the service provider has met certain conditions. Notes to sub-s116AA(1) give references to the subdivisions in the Division and identify the components of the scheme that each subdivision addresses. Subsection 116AA(1) also provides that the Division only applies to certain online activities undertaken by carriage service providers. Those activities are set out in Subdivision B.
681. New sub-s116AA(2) provides that the Division does not limit the operation of provisions in the Act outside the Division in relation to determining liability for infringement of copyright. While actions taken by a carriage service provider in relation to the conditions set out in this Division may have some relevance to whether or not copyright infringement has occurred, the Division does not affect the way provisions in the Act in relation to the determination of liability should be interpreted or limit the application of the exceptions in the Act. Further, the failure of a carriage service provider to qualify for any limitations on remedies in this Division does not make the service provider liable for copyright infringement. A copyright owner must still establish that a carriage service provider has infringed copyright under the Act.
682. New s116AB provides definitions for 'caching', 'copyright material', 'financial benefit' and 'industry code' for the purposes of the Division.
683. The definition of 'financial benefit' is intended to exclude benefits merely gained as a result of ordinary pricing models used by carriage service providers in charging for their services. For example, some models apply additional charges when download or access limits are exceeded. It is intended that a court will be able to determine that a financial benefit does not 'merely' relate to the level of activity on a carriage service provider's network where there are further relevant circumstances, for example, where the carriage service provider knew that an infringement of copyright was involved.
684. The definition of 'industry code' is intended to allow codes to be developed in relation to specific conditions specified in Subdivision C. It covers an industry code that meets any prescribed requirements and is registered under Part 6 of the Telecommunications Act 1997 or an industry code developed in accordance with the regulations. The definition would allow the Government to prescribe requirements of a code, or a process under which a code must be developed. The regulations may, for example, prescribe a process whereby the Government develops a code in consultation with industry representatives. If an industry code is to be registered under Part 6 of the Telecommunications Act it would also need to comply with relevant code requirements under that Act.
Subdivision B - Relevant activities
685. New Subdivision B of Division 2AA sets out the four categories of online activities to which the limitations on remedies apply.
686. New s116AC provides that a carriage service provider will be undertaking a Category A activity where the carriage service provider acts as a conduit for internet activities through the provision of facilities for transmitting, routing or providing connections for copyright material. The activity also covers the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections. Examples of activities that fall within this category include where a carriage service provider provides internet access to a user, or where a carriage service provider acts as a conduit for the communication of material between online locations.
687. New s116AD provides that a carriage service provider will be undertaking a Category B activity where the carriage service provider caches copyright material through an automatic process. Caching is defined in s116AB of the Division. Category B activities cover situations where a carriage service provider reproduces copyright material onto its system or network in response to an action by a user. The carriage service provider reproduces the material so that requests for that material can be transmitted from the cached copy, rather than from the original source. The ability to cache material is an important practice in the online environment as it contributes to the efficient operation of systems and networks by reducing the processing time for requests for the same information and reducing bandwidth requirements.
688. Category B activities are limited to situations where the caching occurs in response to an action undertaken by a user (eg a request to view a website through the carriage service provider's system). A Category B activity includes caching through an automatic process but not the manual selection of material for caching. This includes, for example, circumstances in which the material to be cached is determined by software on the carriage service provider's system based on certain criteria. It does not include situations where the carriage service provider manually selects the specific material to be reproduced. An 'automatic process' may involve some manual intervention, for example, as part of creating or modifying a caching program or setting criteria for caching programs that operate automatically.
689. New s116AE provides that a carriage service provider will be undertaking a Category C activity where the carriage service provider stores copyright material on their systems or networks. It applies to storage of copyright material at the direction of a user. An example of this activity is where a carriage service provider hosts a user's website on their system or network.
690. New s116AF provides that a carriage service provider will be undertaking a Category D activity where the carriage service provider refers users to an online location using online information location tools or technology. Examples of online location tools or technologies include hyperlinks, online directories and search engines.
Subdivision C - Limitations on remedies
691. New Subdivision C of Division 2AA sets out the limitations on remedies available against a carriage service provider where they have been found liable for copyright infringement in relation to the activities described in Subdivision B.
New 116AG Limitations on remedies
692. New sub-s116AG(1) provides that the relevant conditions in Subdivision D must be met before the limitations in this section apply.
693. New sub-s116AG(2) places a complete bar on monetary relief where a carriage service provider qualifies for any of the categories of activities in Subdivision B.
694. New sub-s116AG(3) provides the remedies that are available against a carriage service provider that qualifies for a Category A activity.
695. New sub-s116AG(4) provides the remedies that are available against a carriage service provider that qualifies for a Category B, C or D activity.
696. New sub-s116AG(5) provides the matters a court must have regard to in making an order under sub-ss116AG(3) and 116AG(4). The order of the list does not indicate any priority of consideration.
697. Subdivision D provides the conditions that a carriage service provider must comply with in order to qualify for the limitations on remedies in relation to each of the categories of activities.
698. New s116AH provides a table which sets out the conditions. A person seeking to limit remedies for copyright infringement under this Division must fall within the definition of 'carriage service provider' in the Act; must be liable for copyright infringement in relation to an activity which falls within one of the categories of online activities set out in Subdivision B; and must have satisfied the conditions in this subdivision that relate to the particular activity. A determination of whether or not a carriage service provider qualifies for the limitation on remedies in relation to one category of activities does not affect the determination of whether or not the carriage service provider qualifies, or does not qualify, in relation to any of the other categories of activities.
General conditions
699. To be eligible for the limitation on remedies in relation to any of the categories of activities in Subdivision B, a carriage service provider must meet the following two general conditions.
- 1)
- The carriage service provider must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of users who are repeat copyright infringers. This policy is to be determined by the carriage service provider.
- 2)
- The carriage service provider must accommodate and not interfere with standard technical measures used to protect and identify copyright material in accordance with a relevant industry code. If an industry code (as defined in s116AB) is not in force, this condition does not apply. Any industry code in relation to this condition must comply with any conditions prescribed by the regulations. These may, for example, require that the code be developed through an open, voluntary process by a broad consensus of copyright owners and carriage service providers.
Category A Conditions
231. In order to qualify for the limitations on remedies associated with Category A activities a carriage service provider must meet the following two conditions in addition to the general conditions.
- 1)
- Any transmission, routing or provision of connections for copyright material must be initiated by or at the direction of another person. This may, for example, be a subscriber of the carriage service provider's system or network, or another person using the system or network. To be deemed not to have initiated the transmission, a carriage service provider must not have manually selected the copyright material being transmitted, nor the recipients of the material.
- 2)
- The copyright material must be transmitted without any substantive modifications to its content. This condition does not apply to modifications made as part of a technical process, for example where 'format shifting' is necessary to provide access to copyright material via different technologies.
Category B Conditions
231. In order to qualify for the limitations on remedies associated with Category B activities a carriage service provider must meet the following four conditions in addition to the general conditions.
- 1)
- If the copyright material that is cached is subject to conditions on user access at the originating site the carriage service provider must ensure that access to significant parts of the cached material is permitted only to users who have met those conditions. Examples of relevant conditions that may apply at the originating site include requiring registration or subscription in order to access the copyright material. The condition only applies to significant parts of the copyright material so as to not apply where, for example, an extract of the material is displayed by a search engine without the user having met any conditions on access.
- 2)
- If a relevant industry code is in force, the carriage service provider must comply with relevant provisions of the code relating to updating the cached copyright material. It must also comply with any relevant industry code relating to not interfering with technology used at the originating site to obtain information about the use of the material. An example of technology to which such a code may apply includes technology that counts the number of times that certain material is accessed. The relevant industry code must satisfy any requirements prescribed by the regulations. If an industry code as defined in s116AB is not in force this condition does not apply.
- 3)
- Any copyright material must be removed or access to the material blocked if the carriage service provider receives a notice in the prescribed form that the material has been removed or blocked at the originating site. This action must occur expeditiously from the receipt of the notice.
- 4)
- The copyright material must be transmitted without any substantive modifications to its content. This condition does not apply to modifications made as part of a technical process, for example where 'format shifting' is necessary to provide access to copyright material via different technologies.
Category C Conditions
231. In order to qualify for the limitations on remedies associated with Category C activities a carriage service provider must meet the following three conditions in addition to the general conditions.
- 1)
- If the carriage service provider has the right and ability to control the infringing activity, the service provider must not receive a financial benefit directly attributable to the infringing activity. Financial benefit is defined in s116AB to exclude a benefit that merely results from the level of activity on the carriage service provider's system or network. The legislation also provides that a financial benefit will only be regarded as being 'directly attributable' to the infringing activity if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.
- 2)
- The carriage service provider must expeditiously remove or disable access to material residing on its system or network upon receipt of a notice in the prescribed form that the copyright material has been found to be infringing by a court.
- 3)
- The carriage service provider must comply with a prescribed procedure in relation to removing or disabling access to copyright material residing on its system or network. This may, for example, include a notice and takedown procedure and a counter-notice scheme.
231. Conditions (2) and (3) only apply to copyright material stored on a carriage service provider's own system or network. This does not include copyright material on systems or networks that are not run by or on behalf of the carriage service provider, or material stored on the computer of a user of the carriage service provider's system or network.
232. The procedure, including the form of relevant notices, referred to in relation to these conditions will be prescribed in the regulations. It is also proposed that these regulations will come into effect at the same time as new Division 2AA.
Category D Conditions
233. In order to qualify for the limitations on remedies associated with Category D activities a carriage service provider must meet the following three conditions in addition to the general conditions.
- 1)
- If the carriage service provider has the right and ability to control the infringing activity, the service provider must not receive a financial benefit directly attributable to the infringing activity. Financial benefit is defined in s116AB to exclude a benefit that merely results from the level of activity on the carriage service provider's system or network. The conditions also provide that a financial benefit will only be regarded as being 'directly attributable' to the infringing activity if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.
- 2)
- The carriage service provider must expeditiously remove or disable access to a reference residing on its system or network upon receipt of a notice in the prescribed form that the copyright material to which it refers has been found to be infringing by a court.
- 3)
- The carriage service provider must comply with a prescribed procedure in relation to removing or disabling a reference residing on its system or network.
231. The procedure, including the form of relevant notices, referred to in relation to these conditions will be prescribed in the regulations. It is also proposed that these regulations will come into effect at the same time as new Division 2AA.
232. New sub-s116AH(2) provides that nothing in the Division requires a carriage service provider to monitor its service or to seek facts to indicate infringing activity in order to be eligible for any of the limitations on remedies associated with the four categories of online activity. An exception occurs where the carriage service provider is required to monitor its system or seek facts to indicate infringing activity in order to comply with an industry code in force, as set out by the general conditions in sub-s116AH(1), in relation to accommodating and not interfering with standard technical measures used to protect and identify copyright material.
New 116AI Evidence of compliance with conditions
233. New s116AI provides a presumption in relation to a carriage service provider's compliance with a condition listed in s116AH. If a carriage service provider points to evidence prescribed by the regulations in relation to a certain condition, which suggests that the provider has complied with that condition, the court must presume, in the absence of evidence to the contrary, that the provider has complied with the condition. Regulations may be made prescribing the evidentiary requirements for this presumption to apply. Where the regulations do not prescribe evidence in relation to a certain condition the presumption does not apply, and the carriage service provider must satisfy the court that it has complied with that condition.
234. New Subdivision E provides for the making of regulations in relation to Division 2AA.
235. New s116AJ provides for the making of regulations on various matters relating to the conditions that must be satisfied before a carriage service provider can take advantage of the limitation on remedies for certain online activities.
236. A carriage service provider's actions in compliance with the conditions may result in loss or harm to another person, for example a person who uses the system or network provided by the carriage service provider. Regulations made pursuant to the power in new sub-s116AJ(1) may provide that a carriage service provider is not liable for damages or any other civil remedy from some or all parties as a result of action taken in good faith to comply with a condition. The regulations may also prescribe circumstances in which a carriage service provider may be liable for legal actions where they have not fully complied with the prescribed procedure in relation to a condition.
237. New sub-s116AJ(2) permits the making of regulations that provide civil remedies for conduct by relevant parties in relation to the conditions. Regulations made pursuant to this power, for example, could provide a civil remedy for acts undertaken by the relevant parties, purportedly in accordance with a prescribed procedure, where those acts were not taken in good faith and a person suffers loss as a result.
238. New sub-s116AJ(3) permits the making of regulations that provide offences for conduct by persons issuing notices under the regulations and the prescribing of penalties for those offences that do not exceed 50 penalty units. Regulations made pursuant to this power, for example, could provide that certain acts undertaken by the relevant parties, purportedly in accordance with a prescribed procedure, constitute offences. Such acts might include, for example, wilful misrepresentations.
Item 192 At the end of section 115
239. This item amends s115 of the Telecommunications Act 1997 by adding new sub-s115(4). Subsection 115(1) of that Act provides that industry codes and standards registered under Part 6 of the Telecommunications Act will have no effect to the extent they deal with the content of content services, or to the extent that they require customer equipment, customer cabling, a telecommunications network or a facility to have particular design features or performance requirements except as specified in sub-s115(2). New sub-s115(4) provides that this rule does not apply to an industry code made for the purposes of this Division of Part V of the Copyright Act.