Issue 47 - September 2007
AGD e-News on Copyright
Welcome to the third edition of the newsletter of the Copyright Law Branch of the Attorney-General’s Department for 2007.
An HTML version of the e-News newsletter with formatting and links is also available online.
You may forward this newsletter to others. 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: Tara Booth, Tara.BoothATag.gov.au.
**************
WHAT’S IN THIS ISSUE?
1. Asia-Pacific Economic Cooperation Forum - Intellectual Property
2. Intellectual Property Enforcement Workshop, August 2007
3. Draft Infringement Notice Guidelines
4. Update on Australian Free Trade Agreement negotiations
5. New Copyright Tribunal appointments
6. WIPO Internet treaties come into force in Australia
**************
1. Asia-Pacific Economic Cooperation Forum - Intellectual Property
Discussions on intellectual property issues featured during various APEC meetings held in Sydney between 2-9 September 2007. APEC Leaders and Ministers issued statements focusing on the benefits of developing knowledge based economies and enhancing intellectual property protection and enforcement. These issues were also discussed at meetings of the APEC Intellectual Property Experts Group held in Canberra in January and Taipei in June.
The APEC Economic Leaders Statement issued on 9 September 2007 stated:
We agreed to continue to strengthen protection and enforcement of intellectual property rights (IPR) in the region. We recognised that a strong knowledge based economy requires a comprehensive and balanced IPR system, as well as an environment that encourages creativity and innovation and provides the tools for successful management and utilisation of IPR. We also agreed to continued efforts by APEC economies to combat the sale of counterfeit and pirated goods at markets involved in this activity.
The APEC Ministerial Statement issued on 6 September 2007 stated:
We continue our efforts to strengthen protection and enforcement of intellectual property rights (IPR) in the region; an endeavour that fosters the development of knowledge-based economies, expands investment opportunities, and promotes economic growth. We also acknowledged the importance of a comprehensive and balanced intellectual property system, as well as an environment that encourages creation and innovation and provides the tools for successful management and exploitation of IPR.
We welcomed the progress APEC has achieved this year on the IPR front, including the launch of the Cooperation Initiative on Patent Acquisition Procedures, the development of the Best Practices Paper on Innovative Techniques for IPR Border Enforcement, and the creation of the IPR Guidelines on Capacity Building. We welcomed APEC’s attention to satellite and cable signal theft and called for APEC, in accordance with member economies' respective international obligations and legal systems, to explore ways to effectively address this problem, which harms copyright owners and the broadcasting and cable industries. We also agreed to continued efforts by APEC economies to combat the sale of counterfeit and pirated goods at markets involved in this activity and to address the challenge this represents to IPR protection around the world. We urged continuing implementation of the APEC Anti-Counterfeiting and Piracy Initiative and the six subsequent IPR Guidelines and agreed to undertake further work to strengthen IPR protection and enforcement.
2. Intellectual Property Enforcement Workshop, August 2007
The Attorney-General, the Hon Philip Ruddock MP, opened an Intellectual Property Enforcement Workshop on 23 August 2007 in Sydney.
The workshop was well attended by representatives from a broad range of IP industries, legal practitioners, Government agencies and law enforcement.
The Attorney-General commented that the workshop was an important opportunity for law enforcement and IP industries to discuss ways to more effectively enforce IP. The major copyright law reforms and Budget funding for IP enforcement has provided a significant impetus to improve enforcement. He noted that strong cooperation was needed to deliver sustainable long-term results.
In addressing the participants, the Attorney-General also used the workshop as an opportunity to release the draft copyright infringement notice guidelines for public comment (see item 3 below for further details).
Other presentations at the workshop were given by representatives from the Australian Federal Police; the Commonwealth Director of Public Prosecutions; and the film, music, broadcasting and liquor industries.
The workshop provided an important opportunity for participants to discuss the issues and challenges of effective IP enforcement and highlighted the importance of industry, Government and law enforcement continuing to work cooperatively together to develop positive responses to these challenges.
3. Draft Copyright Infringement Notice Scheme Guidelines
The amendments in the Copyright Amendment Act 2006 to the enforcement provisions included the creation of a tiered system of copyright criminal offences incorporating indictable, summary and strict liability offences.
The introduction of strict liability offences is designed to deal specifically with lower level copyright criminal activity such as first time offenders, street stall or market operators.
The strict liability offences do not contain fault elements and attract maximum penalties of 60 penalty units (currently the equivalent of $6,600).
These offences in the Copyright Act 1968 are underpinned by an infringement notice scheme provided for under the Copyright Regulations 1969.
The scheme is intended to provide for a more cost-effective and streamlined administration of enforcement provisions by enabling these offences to be dealt with expeditiously.
Under this scheme, an offender issued with an infringement notice will have the option of paying a fine or risking prosecution in court. In addition to paying a fine, some offences will also require the offender to forfeit copyright material and/or related devices in order to avoid prosecution.
The Attorney-General's Department has developed draft guidelines for the administration of the infringement notice scheme. These are intended to assist police officers in the administration of the scheme. For example, these include a list of factors that police officers may take into account when deciding whether to issue an infringement notice, and procedures for the destruction of forfeited infringing copies.
The development of guidelines for the infringement notice scheme also partly implements a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs made during its consideration of the Copyright Amendment Act 2006. That recommendation was that guidelines be developed and that consultation on them should take place with appropriate bodies.
The draft guidelines are now publicly available for consideration and comment.
All comments on the draft documents should be provided to copyrightlawbranch@ag.gov.au by the closing date of 5 October 2007.
A copy of the Draft Copyright Infringement Notice Scheme Guidelines is available.
4. Update on Australian Free Trade Agreement negotiations
The Copyright Law Branch continues to work closely with the Department of Foreign Affairs and Trade (DFAT), IP Australia, and other agencies on the IP issues in relation to the Free Trade Agreements (FTAs) Australia is currently negotiating.
Chile
On 18 July 2007 the Government announced its decision to commence FTA negotiations with Chile. The first round of negotiations was held in Canberra on 7‑9 August and included discussions on IP. These discussions will continue at the next round scheduled for 9-12 October 2007.
China
Negotiations for an Australia-China FTA began in May 2005. Since then useful progress has been made on a number of issues.
Both Australia and China have tabled draft text on an IP chapter which were consolidated in the last round held from 8-22 June in Beijing. Australia hopes that the combined draft text will highlight issues of convergence and assist progress detailed discussions on specific provisions at future rounds. The next round is scheduled to be held in October 2007.
Gulf Cooperation Council
Australia and the Gulf Cooperation Council (GCC) met in Canberra from 31 July to 2 August to launch the first round of their negotiations on an FTA. Australia provided the GCC with draft text for an IP chapter to consider, and explained our approach.
The next round of negotiations are scheduled to be held in Saudi Arabia, in the third week of November 2007.
Japan
The first round of negotiations with Japan was held in Canberra from 23-24 April, where it was agreed that negotiations would be held every two to three months and cover a comprehensive list of issues, including IP. The second round of negotiations was held in Japan from 6‑10 August, where the focus was the exchange of information leading to the development of negotiating text in the third and later rounds. The next round of talks are scheduled to be held in Australia in early November.
Malaysia
IP issues were last discussed at an Australia-Malaysia FTA inter‑sessional meeting in Canberra in September 2006. Since that time, slippage has occurred in the negotiations as Malaysia seeks to manage a heavy trade agenda and changes to key negotiating personnel. Australia's lead negotiator met with Malaysia's new lead negotiator in June 2007 and agreed on a program to take negotiations forward. A meeting of lead negotiators and the co-chairs of working groups, including IP, is scheduled to be held in Malaysia, on 1‑2 October 2007. This will lay the groundwork for a full round of negotiations in November.
Australia, New Zealand and the Association of Southeast Asian Nations (ASEAN)
Australia and New Zealand commenced FTA negotiations with the 10 ASEAN countries in early 2005 and progress continues to be made across the FTA agenda, including IP.
At the last round of negotiations held in Perth on 31 July to 3 August, IP experts from all parties (except Myanmar, Laos and Vietnam) engaged in detailed and constructive discussion on the draft IP text tabled by Australia and New Zealand in late 2006. The next meeting is scheduled to take place in Kuala Lumpur from 24 – 28 September 2007.
IP Consultative Group
DFAT hosted an IP Consultative Group meeting in July attended by relevant Government agencies and a broad range of IP industry representatives. These meetings are an important opportunity to update industry on the progress of FTA negotiations and to ensure ongoing industry consultation. It is anticipated that another meeting will be held in December this year.
In the interim stakeholders are encouraged to raise FTA related copyright issues directly with either DFAT or the Copyright Law Branch of the Attorney-General's Department.
Further information in relation to Australia’s existing FTAs (eg Singapore, Thailand and the United States) and the negotiations currently underway with China, Chile, GCC, Japan, Malaysia and New Zealand and the 10 ASEAN countries is available on the DFAT FTA website. Interested persons can also subscribe to DFAT’s free email newsletters that provide updated information on each of the current FTAs.
5. New Copyright Tribunal appointments
There have been several new appointments to the Copyright Tribunal of Australia over the last few months. Justice Emmett of the Federal Court of Australia has recently been appointed as the President, Justice Allsop of the Federal Court of Australia and Federal Magistrate Rolf Driver have been appointed as Deputy Presidents and Dr Hugh Sibly, Senior Lecturer in Economics at the University of Tasmania has been appointed as a new member.
They join re-appointed members, Professor Dennis Pearce AO, Emeritus Professor and Visiting Fellow at the Australian National University and Dr Rhonda Smith, Senior Lecturer in Economics at the University of Melbourne.
Justices Emmett and Allsop take up their appointments in October. The terms of all other appointees commenced in June.
The Copyright Tribunal is established under the Copyright Act and principally arbitrates disputes between copyright collecting societies and their licensees over copyright licence fees.
For further information on the appointees see the Attorney-General’s press releases
28 June 2007 - Media Release - New appointments to Copyright Tribunal (Archived)
10 September 2007 - Media Release - New judicial appointments to Copyright Tribunal (Archived)
6. WIPO Internet treaties come into force in Australia
On 26 July 2007, the World Intellectual Property Organisation (WIPO) Copyright Treaty and the Performances and Phonograms Treaty came into force in Australia. The treaties are known as the Internet treaties and protect copyright in the online environment. There are over 60 other parties to the treaties including the USA, Japan and China.
The coming into force of the treaties means that Australian creators and performers will enjoy digital-age protection for their creative output in other treaty‑member countries.
It also means that Australia’s performers will enjoy the right to be known and respected for their performances in a similar way to authors and film-makers. Now that Australia is a party to the WIPO Performance and Phonograms Treaty, provisions currently set out in Note 2 of the Copyright Act for performers’ moral rights come into operation as new Part IX.
A fact sheet outlining moral rights for authors, film-makers and performers is available.
**************
WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
International and Projects Section
- Australia’s participation in WIPO activities
- Jurisdiction and Procedures of the Copyright Tribunal
- Collective administration of copyright
- CLRC Report on Crown Copyright
- Ergas Report – Review of intellectual property legislation under the Competition Principles Agreement
- Film directors’ rights
- Hague Convention
- International copyright regulations
- Moral rights
- Performers’ rights
- Term of copyright protection
- Statutory licences and related issues
- Singapore FTA
- Chile FTA
Contact: Chris Creswell, tel: (02) 6250 6312; e-mail: chris.creswellATag.gov.au.
New Technologies Section
- Internet service providers
- Technological protection measures
- Copyright Tribunal appointments
- Issues affecting people with a disability
- Orphan works
- Review of legal deposit
- Japan FTA
- AUSFTA
- Circuit Layouts Act
Contact: Kirsti Haipola, tel: (02) 6250 5418, e-mail: kirsti.haipolaATag.gov.au.
- Government use of copyright
- Libraries, educational bodies and other cultural institutions
- IP and protection of arts and cultural expressions of Indigenous people
Contact: Peter Treyde, tel: (02) 6250 6788, e-mail: peter.treydeATag.gov.au.
- Broadcast royalties for sound recordings
- Copyright and designs overlap
- CLRC Report on Copyright and Contract
- Review of format-shifting exceptions
Contact: Norman Bowman, tel: (02) 6250 6324, e-mail: norman.bowmanATag.gov.au.
Trade and Enforcement Section
- Bilateral and regional issues (including China, Malaysia, GCC and ANZ-ASEAN FTAs and APEC, WTO, OECD and Commonwealth Secretariat work)
- Copyright and trade
- Enforcement issues
- Criminal offence provisions
- Statutory review of 2003 amendments
Contact: Sam Ahlin, tel: (02) 6250 6095, e-mail: sam.ahlinATag.gov.au.
Commonwealth Copyright Section
- Commonwealth Copyright Administration
- Government practice in management of copyright materials, including copyright in IT systems
- Whole of Government approach to intellectual property management
- Copyright aspects of other intellectual property legislation
Contact: Elena Down tel: (02) 6250 6380, e-mail: Elena.DownATag.gov.au.
The head of the Copyright Law Branch is Helen Daniels PSM, Assistant Secretary. Ms Daniels can be contacted on (02) 6250 6313, e-mail: helen.danielsATag.gov.au.
James Kane is responsible for copyright matters in the office of the Attorney‑General, the Hon Philip Ruddock MP, and can be contacted on (02) 6277 7300.
For general enquiries telephone (02) 6250 6313; fax (02) 6250 5929; e-mail: copyrightlawbranch@ag.gov.au.
**************
WHERE CAN I GET MORE INFORMATION ABOUT COPYRIGHT?
The Copyright Law Branch website is at http://www.ag.gov.au/copyright.
The Copyright Law Branch produces a booklet entitled Copyright Law in Australia: A Short Guide. To obtain copies of the guide please phone (02) 6250 6313.
Past publications, including discussion papers and fact sheets on a variety of issues, are also available.
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.
For information on patents, trade marks and designs, contact IP Australia by telephoning 1300 651 010. Reports of the Copyright Law Review Committee are available.
**************
HOW CAN I SUBSCRIBE TO/ UNSUBSCRIBE FROM THIS NEWSLETTER?
Subscribe:
You may subscribe to e-News by using the form at: http://www.ag.gov.au/enews_subscribe.
You may also subscribe by sending an email to <lyrisATlstsvr1.ag.gov.au>.
Leave the ‘subject line’ of your e-mail blank and include in the body [ie the text part] of your message: Subscribe e-News.
Please note that e-mail addresses will only be used for the purpose of subscribing to e-News and will not be added to any other mailing list unless you specifically request that this be done.
Unsubscribe:
You may unsubscribe by using the form at: http://www.ag.gov.au/enews_unsubscribe or by sending an e-mail to <lyrisATlstsvr1.ag.gov.au>, leaving the ‘subject line’ blank and including in the body of your message: unsubscribe e-News.
The above form can also be accessed by clicking ‘subscribe’ on the following page:
We would also like to hear from you if you have any feedback or comments on this newsletter. Send an e-mail to copyrightlawbranchATag.gov.au.