Issue 32 - February 2004
AGD e-News on Copyright
Welcome to the first edition of the copyright newsletter of the Copyright Law Branch of the Attorney-General's Department for 2004. We wish all our subscribers the best for the coming year.
An HTML version of this newsletter with formatting and links is also available online at: http://www.law.gov.au/copyrightenews/latest.
You may (and please do) forward this newsletter to friends and colleagues. When quoting from this newsletter, please provide an acknowledgment of source. Information on how to subscribe or unsubscribe is included at the end of the newsletter.
e-News editor: Erin Driscoll, Legal Officer, erin.driscollATag.gov.au.
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WHAT'S IN THIS ISSUE?
POLICY UPDATE
1. Australia-United States Free Trade Agreement: agreed text negotiated
2. Copyright Law Review Committee (CLRC) publishes Crown Copyright Issues Paper
3. Attorney-General opens ACIPA Copyright Conference, Brisbane, 13 February 2004
4. Update: Review of Digital Agenda Reforms
LEGISLATIVE UPDATE
6. Update: Indigenous Communal Moral Rights Bill
CASE LAW UPDATE
7. Recording Industry Association of America v Verizon Internet Services 351 F.3d 1229
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?
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POLICY UPDATE
1. Australia-United States Free Trade Agreement: agreed text negotiated
On 8 February 2004, in Washington D.C., Trade Minister Mark Vaile concluded an agreed text for the Australia-United States Free Trade Agreement with his US counterpart, Trade Representative Bob Zoellick.
Minister Vaile's press release and fact sheets on a variety of elements of the Agreement, including intellectual property, are available online from the Department of Foreign Affairs and Trade.
Stephen Fox, Principal Legal Officer, assisted in the intellectual property-related negotiations relating to the Agreement. Stephen provided an overview of the negotiations as they concern copyright at the Copyright Conference on 13 February 2004. (See item 3, below, for further details of the conference).
2. Copyright Law Review Committee (CLRC) publishes Crown Copyright Issues Paper
On the 4 December 2003 the Attorney-General appointed a new Copyright Law Review Committee and asked it to inquire into the appropriateness of the law relating to government ownership of copyright material.
The members of the Committee represent diverse interests and bring a range of expertise to the CLRC. Once again, the Committee is chaired by Professor James Lahore. The other members of the Committee are:
- Professor Michael Pendleton, Professor of Law, Murdoch University,
- Dr Allan Brown, Associate Professor, Griffith Business School, Griffith University,
- Ms Susan Bridge, Chief Executive, Australian Publishers Association,
- Mr John Gilchrist, Senior Lecturer in Law, University of Canberra,
- Mr Nigel Hardiman, Convenor, States and Territories Copyright Use Group and Senior Project Officer, ACT Urban Services Department, and
- Ms Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General's Department.
The CLRC published an Issues Paper on 12 February 2004 examining the law relating to government ownership of copyright material. The paper invites submissions from interested persons and organisations. The closing date for submissions is 26 March 2004.
The Issues Paper looks at:
- whether the legislative scheme establishing government ownership of copyright is appropriate,
- whether, as a matter of public policy, the government should own copyright in material produced by the executive, judicial and legislative arms of government, and
- options for reform, legislative or otherwise, and the costs and benefits of those options.
The Issues Paper is available from the CLRC website or the CLRC Secretariat. Those making submissions should consult the Guidelines on the preparation of submissions.
For further information contact the CLRC Secretariat: clrc.secretariat@ag.gov.au.
3. Attorney-General opens ACIPA Copyright Conference
The Attorney-General gave the opening address at this year's Australian Centre for Intellectual Property in Agriculture (ACIPA) Copyright Conference. The conference, titled 'Copyright: Unlucky for Some?' was held on 13 February 2004.
The conference is the 9th annual Copyright Conference organised by ACIPA, which is located at Griffith University and The Australian National University.
Topics to be discussed during the conference include: the review of the Attorney-General's Digital Agenda copyright reforms; the Australia-United States Free Trade Agreement; Indigenous community moral rights; the legal regulation of digital music; as well as updates on recent Australian and international copyright cases.
The Attorney-General's speech will be available soon on the Department's website.
Further information about the conference is available from the ACIPA website.
4. Update: Review of Digital Agenda Reforms
A review of the amendments to the Copyright Act 1968 (Copyright Act) contained in the Copyright Amendment (Digital Agenda) Act 2000 (Digital Agenda Act) commenced on 1 April 2003.
Background to the review
When introducing the Copyright Amendment (Digital Agenda) Bill 1999 into the House of Representatives on 2 September 1999 the then Attorney-General, the Hon Daryl Williams, AM QC MP proposed that the operation of the legislation be reviewed within 3 years of commencement.
The amendments to the Copyright Act commenced on 4 March 2001. The review of those amendments, as foreshadowed by the Attorney-General is being conducted by the Attorney-General's Department and is due to be completed in 2004.
External consultant has conducted a major part of review
Law firm Phillips Fox was selected to conduct a major part of the Government's broader review of the digital agenda reforms. Phillips Fox released issues papers and conducted public consultation on matters within their terms of reference. Phillips Fox has completed their part of the review and have recently provided their report to the Attorney-General's Department. The Government will be considering that report as part of the broader review of the reforms.
Relevant link
For the latest information on the Review of the Copyright Digital Agenda reforms please go to: http://www.ag.gov.au/DAReviewNews.
LEGISLATIVE UPDATE
5. Amendments to the Copyright (International Protection) Regulations 1969 and Circuit Layouts Regulations 1989
Amendment to the Copyright (International Protection) Regulations 1969
The Copyright (International Protection) Amendment Regulations 2003 [No. 1] commenced on 23 December 2003 and amended the Copyright (International Protection) Regulations 1969 (the International Protection Regulations).
Pursuant to the amendments, the International Protection Regulations now extend copyright protection in Australia automatically to relevant foreign works and subject matter - to comply with the obligations of relevant international conventions.
Prior to this change the International Protection Regulations listed members of the relevant multilateral conventions in a number of Schedules. These Schedules required manual updating for each change of membership of the relevant conventions. Drafters' notes in the International Protection Regulations now provide guidance as to where lists of members of relevant conventions can be found.
Amendment to the Circuit Layouts Regulations 1989
The Circuit Layouts Amendment Regulations 2003 [No. 1] (the Circuit Layouts Amendment Regulations) also commenced on 23 December 2003.
The Circuit Layouts Act 1989 (the Act) grants and determines the scope of circuit layout rights in Australia. It protects original circuit layouts made by an Australian citizen or an Australian corporation, or first commercially exploited in Australia. In addition any layout originating from a country declared in the Circuit Layout Regulations will also be an eligible layout given protection by the Act.
The Circuit Layouts Amendment Regulations update the list of eligible foreign countries to which Australia extends protection of circuit layouts. The following countries were added to the list of eligible foreign countries: Albania, Armenia, China, Chinese Taipei, Croatia, Estonia, Former Yugoslav Republic of Macedonia, Georgia, Jordan, Kyrgyz Republic, Latvia, Lithuania, Moldova and Oman.
The text of both sets of amending Regulations and consolidated Regulations are available at http://scale.law.gov.au/.
6. Update: Indigenous Communal Moral Rights Bill
The Attorney-General's Department is continuing to work on amendments to the Copyright Act which will give effect to 'Indigenous communal moral rights'.
The proposed amendments will introduce such rights in relation to a work or film that draws on traditions, observances, customs or beliefs held in common by an Indigenous community.
The proposed amendments were incorporated into an Exposure Draft Bill that was developed late last year in consultation with the Department of Communications, Information Technology and the Arts and the Department of Immigration, Multicultural and Indigenous Affairs.
The proposed amendments have been listed for possible introduction in the Autumn Sittings of the Australian Parliament.
The Exposure Draft was released on a limited basis to identified interests. Responses are currently being examined and where considered necessary changes will be incorporated into the legislation for introduction.
CASE LAW UPDATE
7. Recording Industry Association of America v Verizon Internet Services 351 F.3d 1229
The case, decided on the 19 December 2003 by the United States Court of Appeals, relates to an appeal brought by the Internet Service Provider (ISP), Verizon, against a decision of the US District Court on 21 January 2002. The lower court had ruled in favour of the Recording Industry Association of America (RIAA) in relation to the validity of 2 subpoenas issued to Verizon in July 2002 under amendments made to the US Copyright Act 1975 (title 17 USC) by the Digital Millennium Copyright Act 1998 (DMCA). The subpoenas, issued under s 512(h), ordered Verizon to reveal the identify of two of its subscribers believed to be trading mp3 files of copyright music via "peer-to-peer" file sharing programs.
At issue in the case before the Court of Appeals was whether Verizon, who only transmitted rather than stored the allegedly infringing material on their server (due to their function as a conduit for user-directed communications rather than as a storage facility for subscribers) fell within or outside of the DMCA requirements in relation to the issuing of such subpoenas.
In deciding the case, the Court assessed both the terms and structure of s 512(h). It noted that section 512(c)(3)(A)(iii) requires that any notifications issued under the DMCA must clearly identify the material that is claimed to be infringing or the subject of infringing activity and that is to be removed or access to which is to be disabled; and also identify information reasonably sufficient to permit the service provider to locate the material. As RIAA's notification failed to identify any material Verizon could remove or access to which it could disable, the Court ordered that the subpoenas issued to Verizon be quashed. Chief Judge Ginsburg further noted, on behalf of the Court, that 'any notice to an ISP concerning its activity as a mere conduit does not satisfy the condition of s 512(c)(3)(A)(iii)'.
The decision of the Court of Appeals can be accessed at:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200312/03-7015a.pdf.
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WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
- Australia's participation in World Intellectual Property Organisation (WIPO) activities
- Broadcast royalties for sound recordings
- Collective administration of copyright
- Ergas Report - Review of intellectual property legislation under the Competition Principles Agreement
- Film directors' rights
- International copyright regulations
- Moral rights
- Performers' rights
- Photographs - term of protection
- Statutory licences and related issues
Contact: Chris Creswell, tel: (02) 6250 6312; e-mail: chris.creswell@ag.gov.au
- Circuit Layouts Act
- Australian Government copyright
- Copyright and designs overlap
- Copyright Tribunal appointments
- Digital Agenda Amendments Review
- E-commerce issues
- CLRC Report on Copyright and Contract
- CLRC Report into the Jurisdiction and Procedures of the Copyright Tribunal
- CLRC Reports into Simplification of the Copyright Act
- Regional copyright and related matters including Asia-Pacific Economic Cooperation
Contact: Gabrielle Mackey, tel (02) 6250 6608; e-mail: gabrielle.mackey@ag.gov.au
- Bilateral copyright issues (including Aust/US Free Trade Agreement)
- Copyright and trade
- Government use of copyright
- IP and protection of arts and cultural expressions of Indigenous people
- WTO copyright issues
Contact: Stephen Fox: tel (02) 6250 6613, e-mail: stephen.fox@ag.gov.au
- Copyright Law Review Committee Secretariat
Contact: Fiona Phillips, tel (02) 6250 6658, e-mail: fiona.phillips@ag.gov.au
The head of the Copyright Law Branch is Helen Daniels, Assistant Secretary. She can be contacted on 6250 6655, e-mail: helen.daniels@ag.gov.au
Mr Peter Treyde is responsible for copyright matters in the office of the Attorney-General, the Hon Mr Philip Ruddock MP, please phone: (02) 6277 7300.
For general enquiries telephone (02) 6250 6655; fax: (02) 6250 5929; e-mail: copyrightlawbranch@ag.gov.au.
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WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?
The Copyright Law Branch website is at: http://www.ag.gov.au/copyright.
The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. It has published an updated addendum to this guide to reflect recent legislative amendments. To obtain copies of the guide and addendum please phone (02) 6250 6655. The updated version is available online at:
http://www.ag.gov.au/agd/www/Securitylawhome.nsf/Page/
DDE9E530E5D5ADD6CA256B8900079356?OpenDocument.
Past publications including discussion papers and fact sheets on a variety of issues, are also available online at: http://www.ag.gov.au/agd/www/Securitylawhome.nsf/Page/
107D174167C51D4FCA256B89000A7F7C?OpenDocument.
The Copyright Law Branch does not give legal advice to members of the public. The Copyright Law Branch can provide federal Government departments and agencies with legal advice on copyright law matters.
Individual creators with a specific copyright inquiry may be able to obtain advice from the Australian Copyright Council tel: 02 9318 1788. See also the Copyright Council website at: http://www.copyright.org.au/.
For information on patents, trade marks and designs contact IP Australia on tel: 1300 651 010 or access information online at: http://www.ipaustralia.gov.au/.
Information on the Copyright Law Review Committee, including copies of past reports, is available at http://www.ag.gov.au/clrc.
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