Issue 27 - 16 December 2002
AGD e-News on Copyright
Welcome to the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department.
We would like to ensure that the newsletter is accessible for all readers and for this reason recently reverted to plain text for mail-outs. An HTML version of this newsletter with formatting and links is available on-line at http://www.law.gov.au/copyrightenews/latest.
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SEASON'S GREETINGS TO ALL. WE WISH YOU A SAFE AND HAPPY CHRISTMAS AND NEW YEAR
e-News editor: Erin Driscoll, Legal Officer, erin.driscollATag.gov.au
WHAT'S IN THIS ISSUE?
1. Copyright Amendment (Parallel Importation) Bill 2002
3. Collecting Societies' Voluntary Code of Conduct finalised and code reviewer appointed
4. WIPO SCCRR, Geneva, 4-8 November, 2002
5. Discussions held on CLRC Copyright and Contract report
6. Update on Government's Review of the Digital Agenda Amendments
7. IP Enforcement Consultative Group
8. Commonwealth Arrangements for Use of Copyright Materials
9. Staff changes within the Copyright Law Branch
Go to the end of the e-News for answers to the following questions:
- Who do I contact in the Copyright Law Branch?
- Where can I get more information about copyright?
- How can I subscribe to this newsletter?
LEGISLATIVE UPDATE
1. Copyright Amendment (Parallel Importation) Bill 2002
The Copyright Amendment (Parallel Importation) Bill 2002 was passed in the House of Representatives on 9 December 2002. Debate on the bill commenced on Thursday 5 December 2002, following its introduction in the House of Representatives on 13 March 2002 by the Attorney-General, the Hon. Daryl Williams AM QC MP.
Under the Copyright Act 1968 (the Act), with some exceptions, notably, for sound recordings, copyright is infringed by a person who imports into Australia for sale or hire or distribution prejudicial to the copyright owner, an article, if this is done without the copyright owner's permission, and with knowledge that the importer did not have the right to make the article in Australia. This is so even if the article, such as a book, was legally produced and purchased in the overseas jurisdiction. The Bill would reverse that result and allow legitimately produced copies to be imported by persons other than the copyright owner or those authorised by them. Importation of pirated copies would continue to infringe the copyright.
The Bill is in substantially the same form as a Bill of the same name from 2001 that lapsed with the calling of the last Federal election. The Government proposed in its 2001 election policy, Arts for All, to reintroduce the legislation so as to enable persons to parallel import non-infringing books and computer programs into Australia without the permission of the owner of the Australian copyright.
The Bill contains 3 schedules. Amendments to the Act to enable parallel importation of computer software and certain electronic products are in Schedule 1, amendments to permit parallel importation of printed books, periodicals and sheet music are in Schedule 2 and Schedule 3 contains a number of miscellaneous amendments, most of which correct minor errors in the Copyright Amendment (Digital Agenda) Act 2000. The Bill deals with certain trade mark infringements in relation to legitimately imported copyright goods under the provisions, and excludes 'feature films' (see definition in the Bill) from its coverage.
The Bill (and associated material such as the explanatory memorandum) are available from http://www.aph.gov.au/bills/index.htm. The Hansard of debate on the Bill in the House of Representatives on 5 and 9 December 2002 is also available from http://www.aph.gov.au/hansard/.
2. New Designs Bills
On 11 December 2002, the Designs Bill 2002 and the Designs (Consequential Amendments) Bill 2002 were introduced into the House of Representatives by Mr Warren Entsch, Parliamentary Secretary to the Minister for Industry, Tourism and Resources. Together the Bills give effect to the Government's Response to the Australian Law Reform Commission (ALRC) Report No. 74 on Designs.
Schedule 1 of the Designs (Consequential Amendments) Bill 2002 contains a number of amendments to the Copyright Act. These amendments relate to the provisions in the Copyright Act (ss.74-77) which limit the overlap of copyright protection and design protection by removing copyright protection for essentially industrial products. The broad policy is that artistic works commercially exploited as three-dimensional designs should generally be denied copyright protection. However, artistic works exploited as two-dimensional designs continue to receive copyright protection. The ALRC supported the policy underlying ss.74-77 and the level of protection but in its second option, which was accepted by the Government, recommended amendments to give more clarity and legal certainty.
The amendments include measures to deal with specific copyright issues concerned with industrialisation and sale of unprotected designs.
In addition, Schedule 1 contains amendments to the Copyright Act that would be consequential to the enactment of the Designs Act 2002.
Both Bills (and associated material such as the explanatory memoranda) are available from http://www.aph.gov.au/bills/index.htm.
3. Collecting Societies' Voluntary Code of Conduct finalised and code reviewer appointed
On 27 November, the Acting Attorney-General, Senator Chris Ellison, welcomed the appointment, by the main copyright collecting societies, of Mr Jim Burchett QC to monitor their compliance with the voluntary code of conduct adopted by the societies earlier this year. Mr Burchett is a former Federal Court Judge and former President of the Copyright Tribunal. Under the code, the code reviewer also has the function of conducting a review of the operation of the code within 2 years of its commencement. The code has been adopted by APRA, AMCOS, CAL, PPCA, Screenrights, Vi$copy, ASDACS and AWGACS.
Senator Ellison noted that declared collecting societies under the relevant statutory licences in the Copyright Act are already subject to Ministerial and Parliamentary scrutiny. In addition to other statutory compliance obligations, the code of conduct will strengthen the accountability and transparency of all copyright collecting societies that have adopted the code.
The Acting Attorney-General's press release can be accessed here.
It includes a link to the text of the code of conduct at the website of one of the societies.
4. Meeting of WIPO Standing Committee on Copyright and Related Rights (SCCRR), Geneva, 4-8 November 2002
The World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights (SCCRR) further considered proposals for a new treaty on the protection of broadcasts, at its 8th meeting on 4-8 November 2002. Present protection of broadcasts, which is governed by the Rome Convention of 1961, is confined to over-the-air transmission and fails to address more recent practices such as cable transmission and Internet streaming.
Most discussion focused on the recently tabled US proposal which would extend protection to webcasters. None of the other proposals, including those from the EC, Japan, Switzerland, explicitly cover webcasters.
Identification of the proper object of protection was discussed at length. There seemed wide agreement that cable-originated transmissions to the public should be protected, but that interactive services should not be protected, under the new treaty. Real-time streaming on the Internet, ie, where timing of the transmission is dictated by the webcaster not the viewer, seemed to be essentially the same as a pay-TV transmission.
Another big issue was who should qualify for the new protection. The Rome Convention confers protection on broadcasting 'organisations'. If protection was to be extended to webcasters, protection under the new treaty should not necessarily extend to individuals streaming from their homepages. Other issues were whether the new treaty rights should cover downstream uses of legitimate copies of broadcasts (eg, reproduction, Internet uploading, rental), rights against hacking into encrypted signals and protection of signals prior to transmission to the public.
The proposals for a new broadcasters' treaty will be further considered at the next SCCRR scheduled for 23-27 June 2003. The full WIPO report of the SCCRR 8 meeting will shortly be available as document SCCR/8/9 at http://www.wipo.int/copyright/en/index.html.
5. Discussions held on CLRC Copyright and Contract Report
There has been substantial interest in the Copyright Law Review Committee's (CLRC) report on Copyright and Contract, which was released by the Attorney-General on 1 October 2002. In addition to wide-ranging press coverage, various functions have been held to discuss the report.
The Copyright Society of Australia hosted forums in both Sydney and Melbourne in October, where members of the CLRC provided an overview of the report and its recommendations. There was a strong level of interest at these events and over 50 people attended the Sydney function. The CLRC Secretariat also spoke at a meeting of the Copyright in Cultural Institutions Group at the National Museum of Australia and is scheduled to provide a presentation to the Victorian Society for Computers and the Law (VSCL) in February. (The Report will also be the subject of two separate addresses at the copyright conference in Brisbane on 14 February 2003 hosted by the Intellectual Property Research Centre and the Australian Centre for Intellectual Property in Agriculture.)
The public discussions held to date have provided a further opportunity to discuss the relationship between copyright and contract in light of the CLRC's findings that contracts are being used to set the terms and conditions of access to, and use of, copyright material in the digital environment. The interest in this issue and the level of discussion at these functions provide a useful starting point for the Government's consideration of the report.
Copies of the report are available from Commonwealth Government Bookshops and on-line at: http://www.ag.gov.au/clrc.
6. Update on Government's Review of the Digital Agenda Amendments
The Copyright Amendment (Digital Agenda) Act 2000 commenced on 4 March 2001. The amendments were designed to update Australia's copyright regime in response to rapid technological developments in communications technology, particularly the Internet.
During the passage of the Digital Agenda Act, the Government indicated that it would review the amendments within three years of their commencement to ensure that an appropriate balance was maintained between the rights of copyright owners and users. This commitment was reflected in the Government's election policy statement Arts for All in October 2001.
The Government's proposal for a three year review was made in recognition that the amendments placed Australia among leaders in digital copyright reform, and there were few existing legislative responses and established business models against which to measure the efficacy of the legislation. It was also made in recognition of the challenges posed to copyright law as new technologies continue to rapidly evolve.
As part of the review, the Government is selecting a consultant or consultants to undertake research and analysis (including economic analysis) on the impact of specific areas of the reforms. A request for expressions of interest from potential consultants was advertised nationally in May 2002. The tendering process is in an advanced stage and the successful consultant(s) will be announced early in the new year. It is expected that public consultations will commence in the first quarter of 2003.
7. IP Enforcement Consultative Group
The IP Enforcement Consultative Group held its fifth meeting in Canberra on 5 December 2002. This Group was established during 2001 under the leadership of the Australian Federal Police (AFP) to facilitate cooperation between federal and state law enforcement agencies and bodies representing intellectual property rights holders. A primary focus of the group is to exchange intelligence and other information about intellectual property crime, particularly relating to copyright and trade marks. In addition to the AFP, agencies from the Attorney-General's portfolio taking part are the Attorney-General's Department, Customs and the Commonwealth Director of Public Prosecutions. The meeting examined recent enforcement investigations carried out by the AFP, State police services and commercial investigators.
8. Commonwealth Arrangements for Use of Copyright Materials
Following the expiry of an agreement with the Copyright Agency Limited (CAL) the Copyright Law Branch has been negotiating on behalf of the Commonwealth a new agreement seeking to take into account amendments made to the Act. These include those made in 1998 in relation to sampling and amendments made by the Copyright Amendment (Digital Agenda) Act 2000. These negotiations are nearing completion. The Branch has also negotiated with Screenrights, the other copyright royalty collecting society declared under the Act for government use, in relation to Commonwealth copyright use of broadcast copyright material. A process of data collection has been agreed and commenced.
9. Staff changes within the Copyright Law Branch
Robyn Frost will replace Simon Cordina in the new year as the head of the New Technologies section of the Copyright Law Branch. Simon took up a position as a Departmental Liason Officer in the office of the Attorney-General at the beginning of December 2002. Until Robyn commences with the Branch in late January 2003 you may contact Barton Hoyle for issues concerned with the Digital Agenda review and other new technology matters - see contact details below.
Elena Down will be taking leave from the Attorney-General's Department to spend time in China to further her language studies and hopes to undertake humanitarian work with deaf children. Mr Chris Creswell, copyright law consultant, remains the contact officer for the International and Projects section of the Branch.
10. Branch e-mail address
The Copyright Law Branch's e-mail address is: copyrightlawbranch@ag.gov.au.
WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
A. INTERNATIONAL AND PROJECTS, INCLUDING:
- Australian participation in World Intellectual Property Organisation (WIPO) activities
- Review of intellectual property legislation under the Competition Principles Agreement (Ergas Report)
- Collective administration of copyright
- Commonwealth copyright
- Moral rights (Authors' rights)
- Film directors' rights
- Performers' rights
- Photographs - term of protection
Contact: Mr Chris Creswell, tel: (02) 6250 6318; e-mail: chris.creswellATag.gov.au
B. TRADE AND REGIONAL ISSUES, INCLUDING:
- Parallel importation
- World Trade Organisation, bilateral and regional copyright and related matters including Asia-Pacific Economic Cooperation
- IP and protection of arts and cultural expression of Indigenous people
- Commonwealth copying - agreements with collecting societies
- Copyright and designs overlap issues
- Enforcement of copyright
- Innovation and non-copyright IP rights generally
- Government Response to CLRC Report on Copyright and Contract
Contact: Stephen Fox, tel: (02) 6250 6313; e-mail: stephen.foxATag.gov.au
C. NEW TECHNOLOGIES ISSUES AND PROJECTS, INCLUDING:
- Implementation of Digital Agenda amendments and three year review
- E-commerce issues
- CLRC report into Simplification of the Copyright Act
- CLRC report into the Jurisdiction and Procedures of the Copyright Tribunal
- Circuit Layouts Act
- Copyright Tribunal appointments
Contact: Barton Hoyle, tel (02) 6250 6323, e-mail: barton.hoyleATag.gov.au
D. COPYRIGHT LAW REVIEW COMMITTEE SECRETARIAT:
Contact: Fiona Phillips, tel (02) 6250 6658; e-mail: fiona.phillipsATag.gov.au
E. OTHER ISSUES:
If you wish to contact the Copyright Law Branch on another matter, please contact the Assistant Secretary, Copyright Law Branch, Joan Sheedy, (tel: (02) 6250 6313; fax: (02) 6250 5929; e-mail: joan.sheedyATag.gov.au
Peter Arnaudo (tel: (02) 6277 7300) is the current Departmental Liaison Officer responsible for copyright matters in the office of the Attorney-General, Mr Daryl Williams AM QC MP.
For administrative matters, please contact: Michelle Tippett (tel: (02) 6250 6655; Fax: (02) 6250 5929 (michelle.tippettATag.gov.au).
WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?
The Copyright Law Branch website is here.
The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. It has recently published an updated version of this guide to reflect recent legislative amendments.
To obtain copies please phone (02) 6250 6655. The updated version is available on-line here.
Past publications including discussion papers and fact sheets on a variety of issues, are also available on line here.
The Copyright Branch does not give legal advice to members of the public. The Copyright Law Branch can provide Commonwealth Government departments and agencies with legal advice on copyright law matters.
Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at http://www.copyright.org.au.
For information on patents, trade marks and designs contact IP Australia on tel: 1300 651 010 or access information on-line at http://www.ipaustralia.gov.au.
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