Issue 49 - July 2008
AGD e-News on Copyright
Welcome to the second edition of the newsletter of the Copyright Law Branch of the Attorney-General’s Department for 2008.
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eNews editor: Tara Booth, Tara.Booth@ag.gov.au.
WHAT’S IN THIS ISSUE?
1. Release of Review of Exceptions for Private Copying of Photographs and Films
2. Australian-Chile Free Trade Agreement: agreed text negotiated
3. Personal Properties Securities Bill 2008
4. WIPO Director – Nomination of Dr Francis Gurry
5. Productivity Commission Review of Parallel Importation of Books
6. Anti-Counterfeiting Trade Agreement
7. Circuit Layouts – Updating countries receiving protection
8. Update on Australian Free Trade Agreement Negotiations
1. Release of Review of Exceptions for Private Copying of Photographs and Films
The Copyright Amendment Act 2006 introduced a number of new copyright exceptions including provisions that allow consumers to reproduce material in a different format for personal use (eg to copy a sound recording from a CD to a portable player). The amendments also required that the Attorney‑General carry out a review of the operation of two of these exceptions by 31 March 2008.
These two exceptions (ss 47J and 110AA) permit photographs and films to be copied for personal use, under strict conditions. A primary purpose of the review was to examine whether these conditions should be broadened. The Copyright Amendment Act also required that the Attorney‑General table the report of the review in both Houses of Parliament. The two exceptions began operation in December 2006.
The Attorney-General, the Hon Robert McClelland MP, asked the Department to carry out the review. In January 2008, the Department published an Issues Paper requesting public submissions.
The report of the review was provided to the Attorney-General and was tabled in Parliament on 18 June 2008. It makes three recommendations, the main one being that no changes be made to ss 47J and 110AA at this time but that relevant market developments be monitored.
The Attorney-General has issued a media release which supports the report's assessments and notes that the current provisions have only been in operation for eighteen months and more time is needed to assess their impact.
2. Australian-Chile Free Trade Agreement: agreed text negotiated
On 27 May 2008, the Minister for Trade, the Hon Simon Crean MP, concluded an agreed text for the Australia-Chile Free Trade Agreement with his Chilean counterpart, Minister Alejandro Foxley.
The Agreement was tabled in Parliament on 17 June 2008. This commences the domestic ratification processes. Both countries are aiming for an entry into force date of 1 January 2009. It is expected that the Agreement will be signed in late July 2008.
The intellectual property chapter is quite detailed as it is largely modelled on each country's equivalent chapter in their Free Trade Agreements with the United States. As Minister Crean's media release notes, transparent, high-standard protection has been locked in for IP rights, including copyright. The e‑commerce chapter builds upon common understandings in relation to e-commerce.
3. Personal Properties Securities Bill 2008
On 16 May 2008, the Attorney-General, The Hon Robert McClelland MP, released a draft of a Commonwealth Bill for personal property securities (PPS) to replace over 70 pieces of Commonwealth, State and Territory law.
The reforms are part of the Government’s broad deregulation agenda. A streamlined national PPS system is intended to deliver greater certainty and cheaper finance to individuals and business.
PPS involves taking a security interest in all types of property other than real estate, including in intellectual property.
The draft PPS legislation has a number of potential applications for copyright. For example, copyright owners may wish to grant a security interest with respect to their copyright. In addition, the Bill provides for security interests in copyright licences (and in royalty payments) as well as situations where tangible property described in a security agreement interests may be taken to include copyright or a copyright licence.
Submissions are invited (to Personal Properties Securities in the Attorney-General's Department) by 15 August 2008.
4. WIPO Director – Nomination of Dr Francis Gurry
On 14 May 2008, the Coordination Committee of the World Intellectual Property Organization selected an Australian, Dr Francis Gurry, as the nominee for the position of Director General of WIPO. Dr Gurry is currently a Deputy Director General of WIPO and the most senior Australian in the United Nations system.
The Australian Government welcomes the support from WIPO member states across all regions for Dr Gurry’s nomination.
Dr Gurry’s appointment is scheduled to be confirmed by the WIPO General Assembly at its next meeting in September 2008.
5. Productivity Commission Review of Parallel Importation of Books
The Council of Australian Governments (COAG) has endorsed a new competition reform agenda designed to enhance Australia’s longer term growth prospects. As part of this agenda, COAG announced in its communiqué of 3 July 2008, that the Australian Government will request the Productivity Commission conduct a review of the copyright restrictions on the parallel importation of books into Australia. Terms of reference will be prepared later this year. The inquiry will include a public consultation process.
6. Anti-Counterfeiting Trade Agreement
On 1 February 2008, the Minister for Trade announced that Australia will participate in negotiations for an Anti-Counterfeiting Trade Agreement. Australia’s decision to participate in ACTA negotiations reflects the Government’s recognition of the importance of addressing increasing levels of trade mark counterfeiting and copyright piracy. Australia’s participation followed a domestic consultation process conducted late last year by the Department of Foreign Affairs and Trade.
Discussions on the detail of an ACTA are at an early stage. Countries participating in discussions propose that an ACTA will address intellectual property enforcement by: 1) improving enforcement international cooperation; 2) establishing enforcement best practice; and 3) enhancing the enforcement legal framework.
An ACTA has the potential to set an enhanced, practical standard for IP enforcement. This will be of most value if the new standard complements the existing international IP architecture and is capable of attracting broad international support, particularly in our own region.
As with any negotiation, Australia will seek an outcome that reflects the national interest, and will make a decision on whether to join an eventual treaty on that basis.
7. Circuit Layouts – Updating countries receiving protection
The Circuit Layouts Act 1989 protects plans which show the three-dimensional location of the electronic components of an integrated circuit and to give the owner of the plans certain rights in relation to the plans including the right to make an integrated circuit from the plans. Where an original circuit layout is made by a citizen, resident or national of a World Trade Organization member country (or is first commercially exploited in such a country), that layout is protected in Australia as if it had been made by an Australian citizen. Citizens, residents and nationals of WTO member countries therefore enjoy the same rights in Australia under the Circuit Layouts Act, as Australian citizens, protected persons or residents. Information on WTO membership is available on the WTO website.
The Circuit Layouts Regulations 1990 were recently updated to ensure that the list of countries eligible for circuit layouts protection in Australia is an accurate and up to date reflection of WTO membership. To keep the list up to date, the Circuit Layouts Amendment Regulations 2008 inserted a mechanism which allows the Regulations to self-update each time a new member joins the WTO. This recognises those countries by their membership of the WTO, rather than by name. This avoids the requirement to update a list of countries each time a new member joins, as was previously the case.
8. 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.
China
Negotiations for an Australia-China Free Trade Agreement began in May 2005. Ongoing negotiations in successive rounds have involved detailed discussion of proposed draft texts from both China and Australia. Negotiations on intellectual property did not take place at the tenth negotiating round held in October 2007 at China's request. Discussions on IP have continued in the eleventh round of FTA negotiations which took place in Beijing between 16 and 20 June 2008.
Gulf Cooperation Council
At the second round of negotiations in November 2007, Australia and the GCC exchanged information about our respective IP systems. However, negotiations for the inclusion of an IP chapter have been slow due to the fact that between the Gulf States there are varying levels of IP protection and much work remains to be done.
Japan
The fifth round of negotiations on the Australia-Japan FTA was held in Canberra from 28 April to 1 May 2008. Discussions on IP focussed on consolidated text provided by Australia in the lead-up to the fourth round. Both sides gained a clearer understanding of their respective positions. The sixth negotiating round will be held in Tokyo in late July.
Malaysia
The last two negotiating rounds for the proposed Australia-Malaysia FTA occurred in July and September 2006. Australia has tabled IP text the majority of which Malaysia has agreed on a ‘without prejudice’ basis. Since September 2006 slippage has occurred in the negotiations as Malaysia seeks to manage a heavy trade agenda and changes to key negotiating personnel. Leads with co-chairs of working groups met in October 2007 and agreed on a program to take negotiations forward. It is anticipated that further inter-sessional meetings will be held as necessary during 2008, with the possibility of a full negotiating round, including IP, later in the year.
Australia, New Zealand and the Association of Southeast Asian Nations (ASEAN)
Negotiations on an ASEAN-Australia-New Zealand Free Trade Agreement commenced in early 2005. In the early negotiating rounds progress in the area of intellectual property was slow with Ministerial agreement being reached on the inclusion of an intellectual property chapter in the FTA in late 2007. Substantial progress has been made by the Experts Group on IP at successive negotiating rounds in December 2007, March 2008 and April 2008.
Indonesia Feasibility Study
The second meeting of the Joint Study Group for the Indonesia-Australia FTA Feasibility Study was held in Canberra in April 2008. Australia highlighted the importance of including an IP chapter in our FTAs and noted that greater consistency in IP protection between jurisdictions facilitates trade and investment. Indonesia outlined its efforts to strengthen its IP regime and expressed support for increased cooperation on IP issues. The next meeting of the Joint Study Group is scheduled to take place in the second half of 2008. The feasibility study is expected to be completed in late 2008.
IP Consultative Group
DFAT hosts an IP Consultative Group 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. The last meeting of this group was held on 26 June 2008.
Stakeholders are also 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.
WHO DO I CONTACT IN THE COPYRIGHT LAW BRANCH?
Digital Economy Section
- Internet service providers
- Technological protection measures
- Computer software and databases
- Rights management information
- Copyright Tribunal (appointments, jurisdiction, procedures)
- Collecting societies (administration and supervision)
- E-commerce issues (including UNCITRAL and FTAs)
- Electronic Transactions Act 1999
- Circuit Layouts Act 1989
- Public lending right scheme
- Anti-Counterfeiting Trade Agreement
- Japan FTA
- AUSFTA
Contact: Peter Treyde, tel: (02) 6250 6788; e-mail: peter.treyde@ag.gov.au.
New Rights and Exceptions Section
- Exceptions for consumers
- Exceptions for libraries
- Statutory licences for broadcasters; educational institutions; people with a disability; and Governments
- Competition policy
- Innovation review
- Resale royalty for artists
- Indigenous IP (including international developments)
- Expressions of cultural heritage (including international developments)
- Legal deposit
- Icons, national symbols and other IP and indicia protection
- Copyright law Review Committee report on Copyright and Contract
- Personal property securities (including international developments)
- Hague Convention IP work
- Term of protection
- Directors’ rights
- Performers’ rights
Contact: Norman Bowman, tel: (02) 6250 6324, e-mail: norman.bowman@ag.gov.au.
Trade, Enforcement and Public Awareness Section
- Bilateral and regional issues (including China, Malaysia, GCC and ANZ-ASEAN FTAs and APEC, WTO, OECD and Commonwealth Law Ministers)
- Copyright and trade
- Enforcement issues
- Criminal offence provisions
- Public awareness education
- Statutory review of 2003 amendments
Contact: Gabrielle Mackey, tel: (02) 6250 6608, e-mail: Gabrielle.mackey@ag.gov.au.
Commonwealth Copyright Section
- Commonwealth Copyright Administration
- Australian Government practice in management of copyright materials
- Whole of Government approach to intellectual property management by agencies—Statement of IP Principles
- Copyright Law Review Committee report on Crown copyright
- Copyright and Designs interaction
- Copyright and International Protection Regulations
- Chile, Singapore FTAs
Contact: Justine Clarke, tel: (02) 6250 6712, e-mail: Justine.Clarke@ag.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.daniels@ag.gov.au.
Adele Langton is responsible for copyright matters in the office of the Attorney‑General, the Hon Robert McClelland 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.
Past publications, including discussion papers and fact sheets on a variety of issues, are also available from http://www.ag.gov.au/copyright.
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 or access information online at http://www.ipaustralia.gov.au/. Reports of the Copyright Law Review Committee are available at http://www.ag.gov.au/clrc.
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