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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COPYRIGHT AMENDMENT (DISABILITY ACCESS AND OTHER
MEASURES) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
Senator the Hon. Mitch Fifield)
COPYRIGHT AMENDMENT (DISABILITY ACCESS AND OTHER
MEASURES) BILL 2017
OUTLINE
The Copyright Amendment (Disability Access and Other Measures) Bill 2017 (Bill)
includes a package of measures designed to enhance access to copyright material for
persons with a disability, consistent with the World Intellectual Property Organization
(WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who
Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) ratified
by Australia on 10 December 2015; streamline and modernise provisions for the
education, libraries and archives sectors of Australia; and harmonise terms of copyright
for published and unpublished materials, and allow greater access to and use of
culturally valuable materials.
The Bill amends provisions in the Copyright Act 1968 (Act) to:
replace the current exception for persons with a disability, and others acting on
their behalf, with a fair dealing exception;
replace the current statutory licences for institutions assisting persons with a
print or intellectual disability with a single exception that applies to
organisations assisting persons with a disability;
harmonise and modernise the preservation exceptions for copyright material in
libraries, archives and key cultural institutions;
consolidate and simplify the statutory licences that allow educational institutions
to use works and broadcasts;
allow copyright material to be incorporated into educational assessments
conducted online;
set new standard terms of protection for published and unpublished materials
and for Crown copyright in original materials; and
make minor amendments to update references to Ministers and preconditions for
making regulations extending or restricting the operation of the Act in relation to
foreign countries.
FINANCIAL IMPACT STATEMENT
The Bill will not have a significant impact on Commonwealth expenditure or revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Copyright Amendment (Disability Access and Other Measures) Bill 2017
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of Bill
The general purpose of the Copyright Amendment (Disability Access and Other
Measures) Bill 2017 (Bill) is to enhance access to copyright material for persons with a
disability, consistent with the World Intellectual Property Organization (WIPO)
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) ratified by
Australia on 10 December 2015; streamline and modernise provisions for the education,
libraries and archives sectors of Australia; and harmonise terms of copyright for
published and unpublished materials, and allow greater access to and use of culturally
valuable materials.
The Bill amends provisions in the Act to:
replace the current exception for persons with a disability, and others acting on
their behalf, with a fair dealing exception;
replace the current statutory licences for institutions assisting persons with a
print or intellectual disability with a single exception that applies to
organisations assisting persons with a disability;
harmonise and modernise the preservation exceptions for copyright material in
libraries, archives and key cultural institutions;
consolidate and simplify the statutory licences that allow educational institutions
to use works and broadcasts;
allow copyright material to be incorporated into educational assessments
conducted online;
set new standard terms of protection for published and unpublished materials
and for Crown copyright in original materials; and
make minor amendments to update references to Ministers and preconditions for
making regulations extending or restricting the operation of the Act in relation to
foreign countries.
In circumstances where the creation and distribution of copyright material is done by
businesses which are incorporated entities (as opposed to individuals), provisions in the
Bill would not engage with human rights.
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Human rights implications
The Bill engages the following rights:
rights of a person with a disability in the Convention on the Rights of Persons
with Disabilities (CRPD), particularly accessibility in Article 9;
the right of equality and non-discrimination in Article 26 of the International
Covenant on Civil and Political Rights (ICCPR) and Article 5 in the CRPD;
the right to attain and maintain maximum independence, full physical, mental,
social and vocational ability, and full inclusion and participation in all aspects of
life, in Article 26(1) of the CRPD;
the right to freedom of expression in Article 19 of the ICCPR and Article 21 in
the CRPD;
the right of everyone to benefit from the protection of moral and material
interests resulting from any literary or artistic production of which he or she is
the author in Article 15(1)(c) of the International Covenant on Economic, Social
and Cultural Rights (ICESCR);
rights in work in Article 7 of the ICESCR;
the right to education in Article 13 of the ICESCR; and
the right of everyone to take part in cultural life in Article 15(1)(a) of ICESCR.
Rights of persons with a disability and right to accessibility
The CRPD requires State parties to ensure and promote the full realisation of all human
rights and fundamental freedoms for all persons with a disability without discrimination
of any kind on the basis of their disability. There is a general obligation in the CRPD to
provide 'reasonable accommodation' to ensure persons with a disability can enjoy their
rights on an equal basis with others. The CRPD also encourages setting standards and
guidelines for access to facilities and services, to ensure private businesses that provide
facilities or services to the public take into account access for persons with a disability.
Article 9(1) of the CRPD obliges parties to 'enable persons with disabilities to live
independently and participate fully in all aspects of life', including to 'take appropriate
measures to ensure to persons with disabilities access, on an equal basis with others,
to ... information and communications, including information and communications
technologies and systems'.
For the purposes of the CRPD, the definition of 'communication' in Article 2 includes
languages, display of text, Braille, tactile communication, large print and accessible
multimedia, as well as written, audio, plain-language, human-reader and augmentative
and alternative modes, means and formats of communication, including accessible
information and communication technology. The Bill introduces disability access
measures which will simplify and clarify the disability copyright scheme and, in turn,
promote the rights to accessible formats and technologies. This will also enable persons
with a disability to exercise their right to freedom of opinion and expression (discussed
further below).
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Rights to equality and non-discrimination
Both the ICCPR and the CRPD acknowledge the need for State parties to assist or
recognise the interests of particular groups in the community who may be
disadvantaged and require parties to promote the right to equality and
non-discrimination.
New definitions in subsection 10(1) of the Act, inserted by Item 1 of Schedule 1 of the
Bill, and the new sections 113D, 113E, and 113F (comprising Divisions 1 and 2 of the
new Part IVA), inserted by Item 2 of Schedule 1 to the Bill, engage each of these rights.
The process towards Australia's December 2015 ratification of the Marrakesh Treaty
prompted the Government to consider the effectiveness of Australia's existing copyright
scheme for persons with a disability, including the ability to provide timely access to
copyright material in accessible formats. Stakeholder consultation conducted in 2014
and 2015 highlighted that there are a number of practical issues with the current
scheme, namely inflexibility in the digital era and complicated terminology which
requires an in depth understanding of copyright law in order to apply. The disability
access provisions in this Bill seek to simplify and clarify the disability copyright
scheme.
The new definition of 'organisation assisting persons with a disability' would mean that
educational institutions and not-for-profit organisations with a principal function of
providing assistance to persons with a disability can rely on the new sections 113E and
113F to facilitate access to copyright material by persons with a disability. These
provisions provide that certain uses pertaining to enabling such access do not infringe
copyright, thus encouraging relevant organisations to make copyright material available
in accessible formats. These provisions seek to ensure access by persons with a
disability, on an equal basis with others, to information.
The new definition of 'person with a disability', designed specifically for the Act,
clarifies that a 'person with a disability' is an individual who has difficulty reading,
viewing, hearing or comprehending copyright material in a particular form. This new
definition is intended to account for a range of disabilities, consistent with the definition
of disability as set out in the Disability Discrimination Act 1992, and to allow flexibility
for a wide range of conditions that would impact on an individual's ability to access
copyright material. This definition aligns with guidance provided in the CRPD
regarding what constitutes a disability for these particular copyright access purposes.
The objective of this definition is to ensure that certain uses of copyright material by
such individuals would not infringe copyright law.
Right to reasonable accommodation, and to attain and maintain maximum
independence, full physical, mental, social and vocational ability, and full inclusion
and participation in all aspects of life
The provisions in Divisions 1 and 2 of the new Part IVA promote the rights of persons
with a disability by providing them reasonable accommodation under Australian
copyright law in accordance with Article 5 of the CRPD; by providing appropriate
measures for persons with a disability to access information and communications in the
form of accessible format copyright materials in accordance with Article 9(1) of the
CRPD; and by providing persons with a disability the rights to independence, mental
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social and vocational ability, and full inclusion in all aspects of life, in accordance with
Article 26(1) of the CRPD. The availability of accessible formats and technologies
provided for under these provisions also enables persons with a disability to exercise
their right to freedom of opinion and expression in Article 19 of the ICCPR. As such,
these provisions are compatible with and promote the rights and freedoms outlined in
the CRPD.
The new section 113D sets out the policy objectives of the new Part IVA of the Act,
which contains rules governing how accessible format copyright material may be made
by or for eligible persons with disability. These uses of copyright material, such as
printing or format shifting, are intended to help persons with a disability enjoy
accessible content in a timely and equitable way consistent with other people.
The new section 113E provides for a new, flexible 'fair dealing' exception for the use of
copyright material to make accessible format copies by or on behalf of a person with a
disability. This section replaces an existing exception in subsection 200AB(4) of the
Act. The new section contains four separate factors which must be considered to
determine whether the planned use of copyright material would be fair. These factors
accommodate the types of uses that occur in practice when working with copyright
material for disability access purposes, and in doing so, ensure that copyright law works
in a flexible way to encourage equitable access to copyright material by persons with a
disability.
The new section 113F permits relevant organisations to make accessible format copies
and provide them to persons with a disability in circumstances where the provision of
such material is for the sole use of a person with a disability and the requested material
is unavailable commercially in a reasonable timeframe and at an ordinary commercial
price. This new section replaces the current statutory licences for institutions that assist
persons with a print or intellectual disability with a streamlined single exception that
applies to educational institutions and not-for-profit organisations assisting a person
with a disability in relation to accessing all forms of copyright material.
The Bill promotes non-discrimination against persons with a disability and the
protection of the rights of persons with a disability by removing unnecessary
disincentives for persons with a disability, and the organisations assisting them, to
access or enable access to copyright material.
These measures in the Bill would facilitate greater access by persons with a disability to
information through assistive communications technologies and systems. On this basis,
they promote the rights of persons with a disability. In accordance with Article 4(3) of
the CRPD, interested parties were consulted closely and actively involved in the
development of these provisions.
Right to freedom of expression
Article 19(2) of the ICCPR recognises the right to freedom of expression, which
includes the freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through
any other media of choice. This right, while not absolute, extends to any medium,
including written communications and artistic works.
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The abovementioned disability access amendments engage this right.
The disability access provisions introduced by the Bill may be perceived as limiting the
right to freedom of expression of creators, disseminators and other owners of the
copyright material impacted because the provisions essentially regulate the format or
manner of copyright owners' expressions and, to an extent, regulate access to
information. The measures may be perceived as doing this by providing that unless
copyright owners make accessible versions of their copyright material available on a
commercial basis within a reasonable time, persons with a disability and organisations
assisting them would be able to copy and / or change the format of the copyright
materials, free of charge.
Article 19(3) of the ICCPR recognises that the exercise of this right carries with it
special duties and responsibilities and that it may be subject to certain restrictions, but
only such as are provided by law and are necessary, relevantly, for respect of the rights
of others. The relevant right of others is the right to freedom of expression of persons
with a disability. As the right recognised by Article 19(2) is necessarily subject to such
a law, the amendments made by Schedule 1 to the Bill are not considered to be
inconsistent with the right guaranteed by Article 19.
While the disability access provisions in the Bill may, from one perspective, limit the
rights of copyright owners and businesses selling copyright materials to freedom of
expression, the CRPD provides that for persons with a disability (that is, users of
copyright material), the right to accessible formats and technologies is required to
enable them to exercise their right to freedom of opinion and expression. The disability
access measures in the Bill would uphold the rights of persons with a disability to
access accessible formats and technologies which, in turn, would enable them to
exercise their right to freedom of opinion and expression. To the extent that the
disability access measures promote this right and the general welfare of a democratic
society this limitation of copyright owners' right to freedom of expression is
proportionate. The limitation will also be provided by law. On this basis, the Bill is
compatible with Article 19 of the ICCPR.
Rights to work, remuneration and protection of the moral or material interests
resulting from literary or artistic productions
Some of the disability access measures in the Bill would engage rights in work and to
remuneration under Article 7 of the ICESCR, and the right to benefit from the
protection of the moral or material interests resulting from the literary or artistic
production of which they are authors, as provided for in Article 15(1)(c) of ICESCR.
Article 7 of ICESCR requires parties to recognise the right of everyone to the
enjoyment of just and favourable conditions of work, which ensure, in particular,
remuneration which provides all workers with fair wages.
The disability access amendments would, in limited circumstances, limit copyright
owners' rights to be remunerated for their work as those amendments essentially
provide that unless copyright owners make accessible versions of their copyright
material available on a commercial basis persons with a disability and organisations
assisting them would be able to copy the copyright materials free of charge. In this
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regard, effectively, the disability access provisions may limit copyright owners' right to
remuneration.
Copyright owners may also consider that in some circumstances, the introduction of
such measures would limit their right to benefit from the protection of the moral or
material interests resulting from the literary or artistic production of which they are
authors, as provided for in Article 15(1)(c) of ICESCR.
Under Article 4 of ICESCR, rights in ICESCR can only be limited where those
limitations are consistent with the aims of ICESCR, are provided for by law and are
compatible with the purpose of promoting the general welfare in a democratic society.
To the extent that the rights to remuneration and protection of material interests may be
limited by the disability access amendments, limitations are provided by law and are
compatible with the nature of these rights, in that they enable persons with a disability
to access valuable information which could assist them with performance of their own
work. These limitations are solely for the purpose of promoting the general welfare of
democratic society and - in consideration of the human rights benefits enabled by the
provisions - are proportionate. These measures would uphold and promote the rights of
persons with a disability to access copyright material and therefore the disability access
amendments made by Schedule 1 to the Bill are consistent with the right guaranteed by
Article 7 and under the Marrakesh Treaty. On this basis, these provisions are consistent
with Australia's human rights obligations.
Right to education
Measures in Divisions 4 and 5 of the new Part IVA of the Act, to be inserted by Item 2
of Schedule 1 to the Bill, would promote the right to education in Article 13 of
ICESCR. These measures relate to the consolidation and simplification of the statutory
licences that allow educational institutions to use works and broadcasts, and allowing
copyright material to be incorporated into educational assessments conducted online.
Article 13 of ICESCR requires States parties to recognise the right of everyone to
education. In particular, Article 13(2)(c) provides that education should be made
accessible to all, by every appropriate means. Article 13(2)(d) provides that education
shall be encouraged and intensified as far as possible.
The abovementioned provisions in the Bill which relate to enabling greater and more
straightforward access to, and use of, copyright material by educational institutions,
engage and promote this right.
The new Division 4 is designed to simplify the operation of the educational statutory
licences. These provisions have been developed in direct response to perceived
shortcomings in existing provisions for educational copying in the Act, which require
cumbersome and costly mandatory record keeping. The changes introduced by the Bill
would consolidate and simplify provisions relating to educational use of copyright
material, providing flexibility for both the educational sector and the copyright
collecting societies (with whom educational institutions enter into the licences). It is
envisaged that these changes would ensure that the licensing schemes continue to
balance the economic interests of copyright owners with the copying requirements of
educational institutions.
8
The new Division 5 would set out a framework for the operation of declared collecting
societies under this reformed statutory licence, including the requirements for bodies
seeking to be declared as collecting societies under the Act, and the circumstances in
which such declarations may be revoked.
These measures promote the right to education by removing duplicated administrative
provisions, and unnecessary complexity for educational institutions and collecting
societies, in making copyright material available for students. These provisions would
also amend technology-specific provisions that currently restrict educational institutions
from using new technologies.
The new provisions in the Bill relating to the educational sector would also provide that
copyright in works other than computer programs or compilations of computer
programs, and copyright in a broadcast or in any work, sound recording or
cinematography film included in a broadcast would not be infringed by use of that work
under certain conditions of an educational statutory licence.
Additionally, the Bill would introduce an exception that allows copyright material to be
included in examination questions and answers.
Copyright owners may argue that the introduction of the abovementioned measures
might, in some circumstances, compromise their right to benefit from the protection of
the moral or material interests resulting from the literary or artistic production of which
they are authors, provided for in Article 15 of ICESCR.
To the extent that the protection of interests resulting from literary or artistic production
might be limited by these provisions of the Bill, such limitations are consistent with
human rights and freedoms recognised or declared in ICESCR, and Australia's human
rights obligations. The provisions promote the right to education, through introducing
measures which address a need (that is, access to valuable learning resources) not met
by current provisions in the Act. To the extent that the limitations on rights imposed by
these provisions would facilitate access to the right to education, they are reasonable,
necessary and proportionate. Such limitations are therefore permissible under Article 4
of ICESCR.
Right to take part in cultural life
Measures in Division 3 of the new Part IVA, inserted by Item 2 of Schedule 1 to the
Bill, and in Schedule 2 to the Bill, would potentially engage the right of everyone to
take part in cultural life in Article 15 of ICESCR. The measures in Division 3 of the
new Part IVA seek to harmonise and modernise the exceptions relating to preservation
of copyright material in libraries, archives and key cultural institutions. Schedule 2 to
the Bill would set new standard terms of protection for published and unpublished
materials and for Crown copyright in original materials.
Preservation copying provisions
Division 3 of the new Part IVA would replace the current preservation copying
provisions in the Act with simpler, uniform provisions that give libraries, archives and
prescribed key cultural institutions greater flexibility in preserving copyright material in
their collection, whether published or unpublished, without infringing copyright.
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The new preservation copying provisions apply to libraries which make all or part of
their collections accessible to members of the public, parliamentary libraries, archives
and prescribed key cultural institutions. For the purposes of these provisions, libraries
'accessible to members of the public' include libraries that are accessible to the public
directly or via inter-library loans.
These new provisions would enable libraries, archives and key cultural institutions to
make multiple copies of copyright material which are in a version or format that is in
line with best practice preservation policy, if a copy of the material cannot be obtained
in that version or format. Preservation copies in electronic form would be able to be
made available for access by a person at the library, archives or key cultural institution
provided reasonable steps are taken to ensure that the person accessing the preservation
copy does so in such a way that does not infringe copyright in the preservation copy.
Duration provisions
The new copyright duration provisions provided for in Schedule 2 to the Bill seek to
harmonise the term of copyright protection for published and unpublished works, films
and sound recordings.
Under the current framework, where copyright materials are unpublished they remain in
copyright in perpetuity, meaning productive uses may be lost. Libraries and archives
hold large numbers of unpublished materials which are an important part of Australia's
cultural heritage. Setting a term of protection for unpublished materials would allow
greater use of the considerable cultural value of these materials.
Insofar as these provisions may regulate the establishment and maintenance of, and
access to, libraries, archives and key cultural institutions, these measures would
promote the right to enjoy and benefit from culture. The measures would do this by
creating a legislative framework which enables students, historians and other
researchers, film and television producers and writers to access, use and preserve
valuable historical material of cultural significance, without unnecessary regulation or
costly and often fruitless rights clearance processes. On this basis, these measures are
consistent with Australia's human rights obligations.
Conclusion
The Bill is compatible with human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011, because it advances the protection of human rights, and, to the
extent that it may also limit human rights, those limitations are reasonable and
proportionate.
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ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
Act Copyright Act 1968
Bill Copyright Amendment (Disability Access and Other
Measures) Bill 2017
Copyright Tribunal or Copyright Tribunal of Australia
Tribunal
Marrakesh Treaty World Intellectual Property Organization Marrakesh
Treaty to Facilitate Access to Published Works for Persons
Who Are Blind, Visually Impaired, or Otherwise Print
Disabled
11
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the short title of the Act to be the Copyright Amendment
(Disability Access and Other Measures) Act 2017.
Clause 2 - Commencement
Clause 2 of the Bill provides for the Bill, when enacted, to commence as set out in the
table.
Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the
Bill, as well as anything not elsewhere covered by the table, will commence on the day
the Bill receives the Royal Assent.
Item 2 in the table provides that Schedule 1 commences on a date fixed by
proclamation, but if a date is not fixed within six months from the day the Bill receives
the Royal Assent, it commences on the day after the end of that period.
Item 3 in the table provides that Schedule 2 commences on 1 January 2019.
Item 4 in the table provides that Schedule 3, Part 1 commences on the day after the Bill
receives the Royal Assent.
Item 5 in the table provides that Schedule 3, Part 2 commences on a date fixed by
proclamation, but if a date is not fixed within six months from the day the Bill receives
the Royal Assent, it commences on the day after the end of that period.
Clause 3 -Schedules
Clause 3 is a machinery clause that enables the Schedules to amend the Act. The Bill
contains three Schedules.
Schedule 1--Uses that do not infringe copyright
Part 1 - Main amendments
Copyright Act 1968
Item 1 - Subsection 10(1)
Item 1 inserts definitions to complement the new Part IVA of the Act, which is inserted
by Item 2 below.
'copyright material'
Item 1 introduces a new definition of 'copyright material' which covers anything in
which copyright subsists. This would include works and other subject-matter. The term
'work' is defined in subsection 10(1) as meaning a literary, dramatic, musical or artistic
work. Division 3 of Part IV sets out subject-matter other than works. This includes
12
sound recordings, cinematograph films, television and sound broadcasts and published
editions of works.
The definition of copyright material inserted by Item 1 is to apply to all Parts of the Act,
except for Subdivision E of Division 3 of Part VI and Division 2 of Part VII where the
existing use of the term copyright material applies a separate meaning that specifically
excludes computer software.
'organisation assisting persons with a disability'
Item 1 introduces a new definition of 'organisation assisting persons with a disability'.
This definition applies to two groups of organisations: educational institutions as
currently defined in subsection 10(1) of the Act and not-for-profit organisations which
provide assistance to persons with a disability as a principal function, or one of its
principal functions. This may include, for example, dedicated disability organisations,
libraries and other not-for-profit organisations that supply accessible format material to
those they assist.
Under the new provisions, organisations would not be required to be 'declared' as an
'organisation assisting persons with a disability' in order to supply accessible format
material to assist persons with a disability. Organisations that currently rely on the
statutory declaration scheme under section 10A of the Act would instead need to meet
the criteria set out in the definition of 'organisation assisting persons with a disability'.
'original form'
Item 1 inserts a new definition of 'original form', in relation to copyright material, to
complement the preservation copying exceptions for libraries, archives and key cultural
institutions in Division 3 of the new Part IVA.
This definition is intended to cover an original, unpublished piece of copyright material
prepared by an author of a work or a maker of a sound recording or cinematograph film.
An original piece is not necessarily limited to the first version of the copyright material,
for example a draft of a book or first cut of a film, and may include a later unpublished
version as prepared by the author or maker. It may also include material that is in
original form that is later published (for example, a letter that is then published in a
book).
'person with a disability'
Item 1 introduces a definition of 'person with a disability'. This definition has the effect
of limiting the operation of Division 2 of the new Part IVA so that in practice it would
apply to anyone with a disability as defined in the Disability Discrimination Act 1992,
where that person's disability causes them difficulty in reading, viewing, hearing or
comprehending copyright material.
Item 2 - Part IVA - Uses that do not infringe copyright
Item 2 inserts a new Part IVA comprising the following Divisions:
Division 1 - Simplified outline of this Part (section 113D);
Division 2 - Access by or for persons with a disability (sections 113E-113F);
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Division 3 - Libraries and archives (sections113G-113M);
Division 4 - Educational institutions - statutory licence (sections 113N-113U);
Division 5 - Collecting societies (sections 113V-113ZC).
Division 1 - Simplified outline of this Part
Section 113D Simplified outline of this Part
Section 113D outlines the uses of copyright material provided for in the new Part IVA
that do not result in an infringement of copyright. This includes certain use by or for
persons with disability, certain use for the purposes of libraries, archives and key
cultural institutions and certain use by educational institutions.
Note 1 to section 113D clarifies that Part IVA is not the only Part of the Act setting out
circumstances in which use of copyright material does not infringe copyright, and that
other exceptions and limitations exist in Parts III, IV, VC, VII and X.
Note 2 indicates that for some uses in Part IVA, there may be corresponding exceptions
to liability for circumvention of technological protection measures in the Copyright
Regulations 1969.
Division 2 - Access by or for persons with a disability
The Act currently permits the making of accessible copies of books and other copyright
material under a number of different provisions for various disabilities and purposes.
Division 2 of the new Part IVA streamlines and consolidates these functions. Two new
separate exceptions are inserted: one exception is for persons with a disability and
anyone assisting them (section 113E) and one for organisations assisting persons with a
disability (section 113F).
The importation and exportation of accessible format copyright material is an important
function that underpins Australia's compliance with the Marrakesh Treaty. A fair
dealing under section 113E, or a use of copyright material under section 113F, could
also extend to the importation or exportation of accessible format copyright material or
a communication to the public that occurs across borders.
Under section 37 of the Act, the importation of accessible format copyright material is
not an infringement of copyright if the copy would not have been infringing if it had
been made in Australia and it is imported for non-commercial purposes. Similarly,
section 38 of the Act would not prevent the exportation of accessible format copyright
material if the material is made under section 113E or 113F and the material was
exported for non-commercial purposes.
Section 113E Fair dealing for purpose of access by persons with a disability
Section 113E is intended to ensure people may make fair dealings with copyright
material to enable a person with a disability to enjoy equitable access to copyright
material in the same way as a person without a disability. This provision is deliberately
flexible and is intended to encourage creativity, innovation and responsiveness to
relevant technological advances within the disability sector.
14
Section 113E enables a person with a disability, or anyone assisting a person with a
disability, to make any fair dealing with copyright material to help overcome any access
barrier caused by a disability and enjoy copyright material in the format they need with
the appropriate features they require. This may include, for example, scanning of a book
to allow conversion of its format or enlarging a graph or table in a textbook or changing
a book's format so it can be read by a screen reading program. An organisation assisting
a person with a disability to access copyright material can rely on section 113E or
section 113F (see below).
For the purposes of section 113E, a person with a disability, or anyone assisting a
person with a disability, proposing to use copyright material is responsible for
determining if the use is a fair dealing. Where a person wishes to access a title from a
foreign website of legitimately produced accessible format books, and that access
engages copyright, that person - not the operator of the website - would need to
determine whether accessing the book is a fair dealing.
Subsection 113E(2) sets out four factors that must be considered prior to determining
whether any use of copyright material is a fair dealing under that section. These factors
generally replicate those in the existing fair dealing provisions in section 40 of the Act,
except that the commercial availability considerations set out at paragraph 40(2)(c) have
been omitted. It is well understood that the commercial supply of accessible format
material is limited. Each factor should be considered in a fairness assessment, noting
that each factor may have a different degree of significance according to each individual
use.
The first factor: the purpose and character of the dealing. This factor prompts
consideration of whether the use is for the purpose of providing a person with a
disability with access to copyright material, as per subsection 113E(1). If the use is
made to assist a person with a disability to enjoy copyright material, this factor is likely
to be satisfied.
The second factor: the nature of the copyright material. Whether material is in print and
available, as well as if it is published or unpublished, are relevant issues for
consideration.
The third factor: the effect of the dealing upon the potential market for, or value of the
material. This factor requires an analysis of whether the proposed use of copyright
material is reasonably fair with regard to the interests of the copyright holder. If
material is commercially available, factors one, two and four become more important,
noting that a use may still be considered fair even if the material is commercially
available. Only substantial market harm from the individual use should be considered
unfair.
The fourth factor: if only part of the material is dealt with, the amount and substantiality
of the part dealt with, taken in relation to the whole material. This factor requires
consideration of the portion of the material to be used or quantity of copies to be made.
A copy of the whole copyright material may be required by persons with a disability
where the material is not available in the format required or with necessary accessibility
features.
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Section 113F Use of copyright material by organisations assisting persons with a
disability
Section 113F is an exception relating to the use of copyright material by 'organisations
assisting persons with a disability' (as newly defined in subsection 10(1) - see Item 1).
It is intended to enable such organisations to provide accessible format copyright
material to such persons without infringing copyright.
For this exception to apply, not only must the copyright material be used solely for the
purpose of assisting a person with a disability to access the material in a format that,
because of the disability, the person requires, but the organisation, or a person acting on
its behalf, must be satisfied that the material, or the relevant part of the material, cannot
be obtained in that format within a reasonable time at an ordinary commercial price.
Section 113F is intended to ensure that persons with a disability may have access to
copyright material at a similar time and cost as other persons.
Section 113F enables an authorised organisation assisting persons with a disability to
deal flexibly with copyright material to help those they assist to overcome any barrier
caused by a disability and enjoy copyright material in the format they need with the
appropriate features they require. This may include converting a book into Easy
English, providing captions, providing audio descriptions, scanning for use with other
assistive technology and making necessary adjustments so that a user may adjust font
size or colour.
This provision is not intended to unreasonably impact on the commercial interests of a
copyright holder. Commercial availability testing (that is, requiring consideration of
whether the accessible format is available within a reasonable time at an ordinary
commercial price) is an important protection mechanism designed to ensure that
Australian publishers and distributors would have the first opportunity to implement
market solutions to supply persons with a disability with copyright material in
accessible formats. Organisations should first seek to purchase copyright material and,
only after a reasonable search of authoritative sources, consider making an accessible
copy in reliance on the new section 113F.
An appropriate format should include specific features a person needs to enjoy
copyright material to the same standard as a person without disability. The format
needed by persons with a similar disability may differ depending on the context of the
use of the material, such as in an academic setting. For example, a synthetically narrated
text-to-speech version with advanced functions will assist a student with a disability
navigate, index and search a literary work and any incorporated graphs or tables.
Whereas a human narrated audio version may be more suitable for non-academic,
recreational reading where ease and comfort tends to be more important to the
consumer.
For the purposes of section 113F, international suppliers of non-infringing accessible
copyright material into Australia are not required to check commercial availability prior
to supplying Australians with a disability their catalogue of accessible format copyright
material. If an organisation requests the supply of accessible format material on behalf
of an eligible individual in Australia, the requesting organisation, rather than the
supplier, must undertake a search to see if the material is already commercially
available.
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Organisations may continue to report their use of accessible format copyright material
to relevant collecting societies, however it will not be a requirement under the Act that
this is done. Where a copyright holder makes new accessible titles available for
commercial sale, they may wish to notify organisations assisting persons with disability
that their work is now available commercially and in which formats, however, again, the
Act will not require this to occur.
An organisation assisting persons with a disability may receive a request to provide
accessibility services to another not for profit organisation which does not fall under the
definition of 'organisation assisting a person with a disability'. It is intended that
organisations assisting persons with a disability are permitted to provide accessibility
services to such a requesting not for profit institution subject to the terms of
paragraphs 113F(a) and 113F(b).
Division 3 - Libraries and archives
The Act currently includes a number of exceptions that specifically allow staff of
libraries and archives to make or communicate copies of material in collections for
preservation purposes. There are separate exceptions for libraries and archives
(sections 51A and 110B) and for certain key cultural institutions, as prescribed in the
regulations (sections 51B, 110BA and 112AA). Currently, a distinction is also drawn in
the Act between preservation copying of works and subject-matter other than works,
which includes sound recordings and cinematograph films, and also as to whether the
material is in original or published form.
Division 3 of the new Part IVA would replace the current preservation copying
provisions in the Act with simpler, uniform provisions that give libraries, archives and
prescribed key cultural institutions greater flexibility in copying and digitisation of
copyright material, whether published or unpublished, to preserve or administer their
collections. Division 3 would also replace the current provisions in sections 51A and
110B allowing libraries and archives to copy and communicate copyright material for
research purposes.
The new preservation exceptions would apply to libraries accessible to members of the
public, parliamentary libraries and archives as defined in section 10 of the Act, as well
as prescribed key cultural institutions. This would include, for example, a library or
archives that forms part of an educational institution and other cultural institutions, such
as a museum or gallery, that either have a library accessible to members of the public or
collections to which paragraph (b) of the definition of 'archives' in subsection 10(1) of
the Act applies by virtue of subsection 10(4).
Division 3 could apply to libraries that are only open to a subcategory of members of
the public. This may include, for example, libraries that are only open to students,
researchers or members of the library. Government library and archival material could
also potentially come within the scope of Division 3. Where it does so, government
agencies could rely on the provisions in Subdivision A of Division 3 to make
preservation, research and administration copies without recourse to the government
statutory licence in section 183 of the Act.
The provisions in Division 3 of the new Part IVA refer to the 'use' by libraries and
archives and key cultural institutions of copyright material rather than referring to
17
specific rights such as 'copying' or 'communicating' material, provided it is for the
purpose of preservation. 'Use' would also include, for example, the ability to emulate
and reformat works as well as storing works in a number of different digital file types.
To reduce the regulatory burden on libraries and archives, libraries and archives would
not be required to make and keep a declaration in relation to the lack of availability and
suitability of a commercial copy when using material held in published form for
preservation purposes. Nor would libraries and archives be required to make any
notations on copies of material, of the kind currently referred to in section 203H, to rely
on the exceptions provided under the new Division 3.
Subdivision A - Public libraries, parliamentary libraries and archives
Section 113G Libraries
Section 113G sets out the libraries to which Subdivision A of the new Division 3 would
apply. This includes libraries which make all or part of their collections accessible to
members of the public and libraries with the principal purpose of providing library
services for members of Parliament. Library collections 'accessible to members of the
public' include collections that are available to members of the public directly or
through inter-library loans. It would not be necessary that library collections are
generally open to the public to use or visit. This would enable smaller libraries, for
example within universities, which are too costly to keep open but which are still
accessible to researchers or other members of the public, to make use of the exceptions.
Section 113H Preservation
Subsection 113H(1) would enable an authorized officer of a library or archives to use
copyright material, without infringing copyright, for the purpose of preserving its
collection or the collection of another library or archives, if the material is:
held in original form; and/or
cannot be obtained in the required version or format consistent with best practice
for preservation of such a collection.
This would enable libraries and archives to make multiple copies of copyright material
which are in a version or format that is in line with best practice preservation policy, if a
copy of the material cannot be obtained in that version or format. This includes making
an enhanced, preservation-oriented copy of the material at the point of access or
purchase.
In relation to either unpublished or published material, libraries and archives would not
be required to wait for material to be damaged or deteriorate, or to have been lost or
stolen, before making a preservation copy. If original material has been stolen or
deteriorates, or preservation formats change and a copy of the material cannot be
obtained in the new format, a library or archives would be able to make a preservation
copy sourced from an earlier preservation copy.
Libraries and archives would not be required to continue to hold the source material
(original media) from which a preservation copy is made. There may be circumstances
in which it is appropriate to destroy the original media, for example, where the cost of
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storing the material exceeds the value of storing the material such as where the original
media is badly damaged, hazardous to health or is an obsolete computer format.
If a preservation copy made under subsection 113H(1) is in electronic form,
subsection 113H(2) would allow the preservation copy to be made available for access
by a person at the relevant library or archives, provided reasonable steps are taken by
the library or archives to ensure that the person accessing the preservation copy does so
in a way that does not infringe copyright in the preservation copy. This provision is not
intended to limit use of preservation copies (whether in hardcopy or electronic form) for
any other purpose permitted under the Act, for example, reproducing and
communicating works by libraries and archives under Division 5 of Part III of the Act.
Section 113J Research
Subsection 113J(1) would enable an authorized officer of a library or archives to use
copyright material held in its collection in original form, without infringing copyright,
for the purpose of research carried out at the library or archives or another library or
archives.
If a research copy made under subsection 113J(1) is in electronic form,
subsection 113J(2) would allow the research copy to be made available for access by a
person at the library or archives, or at another library or archives for which an electronic
research copy is made under subsection (1), provided reasonable steps are taken by the
library or archives to ensure that the person accessing the research copy does so in a
way that does not infringe copyright in the research copy. This provision is not intended
to limit use of research copies (whether in hardcopy or electronic form) for any other
purpose permitted under the Act, for example, reproducing and communicating works
by libraries and archives under Division 5 of Part III of the Act.
Section 113K Administration of the collection
Section 113K would enable an authorized officer of a library or archives to use
copyright material, without infringing copyright, for administrative purposes directly
related to the care or control of the collection. This might include, for example, back up
copying, reporting (for example, to government) and record keeping, training and use
for the purpose of exhibitions.
Subdivision B - Key cultural institutions
Section 113L Meaning of key cultural institution
Section 113L provides for a definition of 'key cultural institution'. This covers the types
of institutions described under current subsections 51B(1),110BA(1) and 112AA(1) of
the Act, and includes libraries and archives that have a statutory function under a
Commonwealth, State or Territory law to develop and maintain the collection or are
prescribed by regulations made under the Act.
Key cultural institutions that are prescribed in the regulations for the purposes of current
sections 51B, 110BA or 112AA would, by virtue of transitional provisions in the Bill,
be treated as having been prescribed for the purposes of the new section 113L (see
Item 81 of Schedule 1 to the Bill).
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Section 113M Preservation
Subsection 113M(1) would enable an authorized officer of a key cultural institution to
use copyright material, without infringing copyright, for the purpose of preserving the
collection if satisfied that the material is of historical or cultural significance to
Australia and the material is:
held in original form; and/or
cannot be obtained in the required version or format consistent with best practice
for preservation of such collection.
Similar to the provisions in the new section 113H for libraries and archives generally,
these amendments would enable key cultural institutions to make multiple copies of
copyright material which are in a version or format that is in line with best practice
preservation policy, if a copy of the material cannot be obtained in that version or
format.
If a preservation copy made under subsection 113M(1) is in electronic form,
subsection 113M(2) would allow the preservation copy to be made available for access
by a person at the key cultural institution, provided reasonable steps are taken to ensure
that the person accessing the preservation copy does so in a way that does not infringe
copyright in the preservation copy. This provision is not intended to limit use of
preservation copies (whether in hardcopy or electronic form) for any other purpose
permitted under the Act, for example, reproducing and communicating works by
libraries and archives under Division 5 of Part III of the Act.
Division 4 - Educational institutions - statutory licence
The new Division 4 is intended to simplify the operation of the educational statutory
licences, to provide more flexibility for educational institutions and collecting societies
to negotiate agreed terms and to remove the mandatory record keeping requirements of
the Parts VA and VB statutory licences which are proposed to be repealed.
Section 113N Simplified outline of this Division
Section 113N provides a simplified outline of Division 4. The intention of the Division
is to enable educational institutions to copy or communicate works and broadcasts
provided the body administering the educational institution agrees to pay equitable
remuneration to a collecting society.
Section 113P Copying and communicating works and broadcasts
Section 113P applies to copying and communication of works and broadcasts by
educational institutions.
Works
Subsection 113P(1) replaces Part VB of the Act which would be repealed by Item 39.
It provides a statutory licence for educational institutions to copy and communicate
works, without infringing copyright, provided the conditions at paragraphs 113P(1)(a)
to (e) are complied with. These conditions are:
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Paragraph 113P(1)(a) requires that a remuneration notice applying to the work
be in force between the body administering the educational institution and the
collecting society. The requirements for a remuneration notice are set out at
section 113Q. The transitional provisions in Part 3 of Schedule 1 to the Bill
provide that a notice issued under the repealed Part VB will be treated as if it
had been given under the new section 113Q (see Item 83(3), table item 5).
Paragraph 113P(1)(b) requires that the work is not a computer program, a
compilation of computer programs or a work included in a broadcast. Computer
programs, or a compilation of computer programs, are specifically excluded
from the operation of subsection 113P(1), and works that form part of a
broadcast are provided for in subsection 113P(2).
Paragraph 113P(1)(c) requires that that the copy or communication is made by
or on behalf of the body administering the educational institution solely for the
educational purposes of the institution, or of another educational institution if
that other institution has a remuneration notice in force under section 113Q.
Copying and communicating that is done for a purpose other than an educational
purpose, for example private copying of a teacher, is not covered by the
statutory licence. The requirement that copying for another educational
institution can only be done if the other educational institution has a
remuneration notice in force, is to prevent an educational institution being able
to acquire free copyright material by requesting another educational institution
to undertake copying on its behalf.
Paragraph 113P(1)(d) requires that the amount of work copied or communicated
does not unreasonably prejudice the legitimate interests of the owner of the
copyright. Under the previous statutory licence regime, section 135ZG of the
Act set out prescribed copying limits. This new provision provides more
flexibility for educational institutions to determine what quantity of material can
be appropriately copied.
Paragraph 113P(1)(e) requires that the administering body complies with any
relevant agreement between it and the collecting society, and any relevant
determination made by the Copyright Tribunal. The intention is that the
remuneration notice is an undertaking and informs the collecting society that the
educational institution intends to rely on the statutory licence and undertakes to
pay remuneration and comply with agreed terms and conditions. The detailed
terms agreed between the body administering the educational institution and the
collecting society are then set out in a separate agreement. If the parties fail to
agree on the terms and conditions for the copying and communicating, these can
be determined by the Tribunal under subsection 113P(4).
Broadcasts
Subsection 113P(2) applies to copying and communicating copies of broadcasts by
educational institutions. Subsection 113P(2) replaces Part VA of the Act which is
repealed by Item 39. Subsection 113P(6) extends the effect of the provisions in
subsection 113P(2) to cover copying and communicating the content of broadcasts
where they have been delivered online. Subsections 113P(2) and (6) provide a statutory
licence for educational institutions enabling them to copy, and communicate copies of,
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broadcasts and broadcast content provided the conditions at
paragraphs 113P(2)(a) to (d) are complied with. These conditions are:
Paragraph 113P(2)(a) requires that a remuneration notice applying to the
copyright material be in force between the body administering the educational
institution and the collecting society. The requirements for a remuneration notice
are set out in the new section 113Q. The transitional provisions in Part 3 of
Schedule 1 to the Bill provide that a notice issued under the repealed Part VA
will be treated as if it had been given under the new section 113Q (see Item
83(3), table item 5).
Paragraph 113P(2)(b) requires that the material is:
- the broadcast (subparagraph 113P(2)(b)(i)). A broadcast is defined in
section 10 of the Act; or
- a work, sound recording or cinematographic film included in the broadcast
(subparagraph 113P(2)(b)(ii)).
Paragraph 113P(2)(c) requires that the copy or communication is made by or on
behalf of the body administering the educational institution solely for the
educational purposes of the institution, or of another educational institution if
that other institution has a remuneration notice in force under section 113Q.
Copying, or communicating a copy of, a broadcast or the content of a broadcast,
for a purpose other than an educational purpose, for example copying by a
teacher of a broadcast to be privately watched or listened to at a later time, is not
covered by the statutory licence.
Paragraph 113P(2)(d) requires the administering body to comply with any
relevant agreement between the body administering the educational institution
and the collecting society, and any relevant determination made by the
Copyright Tribunal. The intention is that the remuneration notice is an
undertaking and informs the collecting society that the educational institution
intends to rely on the statutory licence and undertakes to pay remuneration and
comply with agreed terms and conditions. The detailed terms and conditions
agreed between the body administering the educational institution and the
collecting society are then set out in a separate agreement. If the parties fail to
agree on the terms and conditions for the copying and communication, these can
be determined by the Tribunal under subsection 113P(4).
Subsection 113P(3) provides that, where a performance is included in a broadcast that
has been copied or communicated in accordance with the requirements set out in
subsection 113P(2), each performer is taken to have authorised the copying or
communication of the whole or a part of a broadcast of the performance or the content
of a broadcast of the performance, and the performers are unable to initiate their own
legal action under Part XIA of the Act.
Questions determined by Copyright Tribunal
Subsection 113P(4) provides the Tribunal with a broad power to determine questions
relating to the educational statutory licence, upon application by either party, should the
parties fail to reach agreement.
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The transitional provisions in Part 3 of Schedule 1 to the Bill provide that applications
to the Tribunal made under repealed sections 135JAA or 135ZWAA that were not fully
dealt with by the Tribunal before the commencement of this new subsection, will be
treated as if made under the new subsection 113P(4) (see Item 83(1), table items 1 and
2).
Copies and communications subsequently used for other purposes
Subsection 113P(5) provides that where a copy of a work, a broadcast or the underlying
work, sound recording or cinematograph film included in a broadcast referred to in
subsections 113P(1) or (2) is, with the consent of the relevant administering body:
used for a purpose other than the educational purposes of an educational
institution;
given to another administering body when there is not a remuneration notice in
force with the other educational institution for the relevant copyright material; or
sold or otherwise supplied for a financial profit,
then subsections 113P(1), (2) and (3) do not apply and will be taken never to have
applied to the making of the copy.
This provision replicates subsection 135E(2) of the Act that would be repealed by
Item 39. By virtue of the transitional provisions in Part 3 of Schedule 1 to the Bill, an
infringement occurring prior to the commencement of this item in contravention of the
previous subsection 135E(2) will remain an infringement (see Item 82).
Content of certain broadcasts
Paragraph 113P(6)(a) provides that section 113P also applies to the content of a
broadcast, if the broadcast was electronically transmitted using the internet at, or at
substantially, the same time as the broadcast. This provision ensures that the educational
institution does not infringe copyright in a situation where the copyright material in the
broadcast they have copied has been streamed over the internet, by an authorised third
party who is not the broadcaster, at approximately the same time as the broadcast.
Paragraph 113P(6)(b) provides that section 113P also applies to the content of a
broadcast where a broadcaster of a free-to-air broadcast, makes the content available
online at or after the time of the broadcast. This provision allows educational
institutions to copy and communicate the content of a free-to-air broadcast that has also
been made available online by the broadcaster. This could include catch-up television or
radio services.
These provisions are not intended to enable educational institutions to copy other
formats of the relevant copyright material, for example CD or DVD, in reliance on the
fact that it had been broadcast.
Section 113Q Remuneration notices
Section 113Q provides that a remuneration notice is a written notice given by the body
administering an educational institution to a collecting society undertaking to pay
equitable remuneration for licensed copying and communicating and to provide
23
reasonable assistance to the collecting society to enable the society to collect and
distribute equitable remuneration. The provision enables an educational institution
administered by that body to copy and communicate copyright material. The relevant
collecting society is determined by the material being copied, that being either a works
collecting society or the broadcast collecting society.
Subsection 113Q(2) provides a definition of 'licensed copying or communicating'. The
definition operates to exclude the statutory licence from applying to material that is
copied or communicated under a direct licence from the copyright owner or under
another exception in the Act. As an example, the definition does not include copying for
a student with a disability which falls within the exception under the new section 113F.
Subsection 113Q(3) links the remuneration notice, which is effectively an agreement
between the body administering the educational institution and the collecting society, to
the copying and communicating carried out by the educational institution for the
copyright material provided for in the remuneration notice, in reliance of that agreement
between the body and the collecting society. The body administering the collecting
society must have a separate remuneration notice for each collecting society.
Subsection 113Q(4) clarifies that in relation to works, the collecting society can only
collect and distribute equitable remuneration for the eligible rights holder or class of
eligible rights holder that the works collecting society has been declared for.
When remuneration notice is in force
Subsection 113Q(5) provides that a remuneration notice will come into force on the day
on which it is given to the collecting society, or on such later day as is specified in the
notice and will remain in force until it is revoked. The remuneration notice, in effect,
triggers the operation of the statutory licence under the new section 113P. The
collecting society would not be able to refuse a notice which complies with
section 113Q.
Subsection 113Q(6) provides that a body administering an educational institution may
revoke a remuneration notice by notice in writing to the relevant collecting society. The
revocation will take effect three months after the date the notice is given to the
collecting society, or such later date as is specific in the notice. This would provide the
collecting society sufficient time to act on the revocation.
Transitional provisions relating to remuneration notices issued under repealed Parts VA
or VB are provided for in Part 3 of Schedule 1 to the Bill (see Item 83(3), table item 5).
Section 113R Equitable remuneration
Section 113R provides that where a remuneration notice is given by a body
administering an educational institution under section 113Q, then the amount payable
will be the amount that is determined by agreement between the administering body and
the collecting society or, failing agreement, by the Tribunal. Application to the Tribunal
may be initiated by either the administering body or the collecting society.
This approach differs from the previous scheme because it does not mandate a particular
method for determining remuneration, such as sampling or record keeping. The ability
24
for parties to negotiate without being restricted as to the methods for determining
remuneration is fundamental to the flexibility of the revised licensing scheme
established under this Division. Parties are not precluded from using previous
approaches. The new statutory licence is intended to be more flexible, less costly and
less administratively burdensome on all parties.
Where a remuneration notice is in effect but a rate of remuneration has not been agreed
by the parties, subsection 113R(3) allows the Tribunal to determine a rate that has effect
in relation to earlier copying and communication.
Section 113S Educational institutions must assist collecting society
Section 113S provides the procedure by which a collecting society can enter the
premises of an educational institution for the purpose of reviewing compliance with the
remuneration notice and any other relevant terms and conditions.
Subsection 113S(1) provides that a collecting society may notify an educational
institution of its intention to enter the educational institution's premises on a specified
day (which must be at least 7 days after the day on which the entry notice is given).
Subsection 113S(2) allows a representative of the collecting society to enter onto the
premises in accordance with the terms set out in subsection 113S(3).
Subsection 113S(4) provides the Tribunal with jurisdiction to consider particular
questions in relation to the entry onto premises. For example, this could include matters
such as whether the representative of the collecting society has undertaken a
working-with-children check.
Subsection 113S(5) provides that the educational institution must take all reasonable
precautions and exercise reasonable diligence to ensure that the representative of the
collecting society is provided with all reasonable and necessary facilities and assistance
for the effective assessment of the institution's compliance. Under subsection 113S(6), a
body administering an educational institution who breaches this duty will be guilty of an
offence punishable on conviction by a fine not exceeding 5 penalty units, currently
$900.
It is considered necessary for the collecting society to have access to institutions as a
means of monitoring compliance. The penalty for breach of the duty to allow reasonable
access to the premises of an educational institution is necessary to ensure that such
inspections are not impeded and to provide a consequence where a body denies
reasonable access. This provision replaces the offences provided in current
sections 135L and 135ZY that are repealed by Item 39. The relatively low penalty
reflects the relatively minor nature of the offence.
Section 113T Voluntary licences
Section 113T provides that the owner of copyright in a work will still maintain the right
to grant a licence on his or her own account to an educational institution to make copies
of works, broadcasts, sound recordings or films included in broadcasts. The effect of the
grant of such a licence would be to take the use of the material outside the meaning of
'licensed copying or communicating' in subsection 113Q(2). However, where an
administering body elects to operate under the statutory licensing scheme instead of
25
entering into a direct licence with the copyright owner and complies with the statutory
provisions, it cannot be prevented from relying on the statutory licence.
Section 113U Persons acting on behalf of bodies administering educational institutions
Section 113U provides that any reference to a body administering an educational
institution includes a person acting on behalf of the body. This could include, for
example, teachers, administrative staff, volunteers or educational resource centres.
Division 5 - Collecting societies
Division 5 sets out the framework for the operation of declared collecting societies
under the statutory licence.
Subdivision A - Declaration of collecting society
Section 113V Declaration of collecting society
Applications
Subsection 113V(1) provides that a body can apply to the relevant Minister to be
declared as either a works collecting society for all eligible rights holders or specified
classes of eligible rights holders, or the broadcasts collecting society. The section
retains the current arrangements for the statutory licences where different collecting
societies can be declared for specified classes of eligible rights holders in works and a
single collecting society can be declared for broadcasts.
'Eligible rights holder' is defined in subsection 113V(9) (see below).
Declarations
Upon application, the Minister must either declare or refuse to declare a body to be a
collecting society or refer the application to the Tribunal and notify the body of the
referral. Upon referral to the Tribunal, the Tribunal may declare the body to be a
collecting society and must then notify the Minister of the declaration.
Subsection 113V(4) provides that when a body is declared a works collecting society,
the declaration is for eligible rights holders or specified classes of eligible rights holders
for 'works, other than works contained in a broadcast'. Eligible rights holders for
'works contained in a broadcast' are covered under the declaration of the broadcast
collecting society.
When a declaration of a body as a collecting society is made under section 113V, the
Minister is responsible for giving notice of the declaration, whether that declaration has
been made by the Minister or the Tribunal.
Existing collecting societies
Subsection 113V(6) is a transitional provision for when there has been a decision to
declare a new body as a works collecting society for an eligible rights holder or class of
eligible rights holders. This subsection provides that the existing collecting society will
26
cease to be that collecting society for that eligible rights holder on the day before the
declaration of the new collecting society takes effect.
Subsection 113V(7) provides that a remuneration notice given to a predecessor
collecting society under section 113Q ceases to be in force, to the extent that it applies
to the work copied or communicated in reliance on that remuneration notice, on the
cessation day. Once that occurs, the body administering the educational institution
would be required to provide the newly declared collecting society with a new
remuneration notice for the eligible rights holders or specified classes of eligible rights
holders covered by the new declaration.
The transitional provisions in Part 3 of Schedule 1 to the Bill provide for declarations
made under sections 135ZZB and 135P to continue to have effect as if they had been
made under section 113V (see Items 83(4) and (5)).
Eligible rights holders
Subsection 113V(9) defines eligible rights holder for a works collecting society as the
owner of the copyright in a work; and for the broadcast collecting society, the owner of
the underlying work, sound recording, or cinematograph film or performer in a
performance in a broadcast.
A new owner of copyright in a sound recording of a live performance within the
meaning of section 100AB is specifically excluded from the definition of eligible rights
holder. This exclusion refers to a performer in a sound recording of a live performance
where that recording was made before 1 January 2005. The exclusion reflects the more
limited rights that were retrospectively applied to performers in sound recordings when
Australia acceded to the WIPO Performances and Phonograms Treaty on 26 April 2007.
The inclusion of a performer in paragraph (b) of the definition of an eligible rights
holder for a broadcast collecting society recognises that a performer within the meaning
of paragraph (b) may not be the owner of copyright, but has economic rights in their
performance embodied in the sound recordings.
Section 113W Requirements for declaration of collecting society
Section 113W replaces current subsection 135P(3) in Part VA and current
subsection135ZZB(3) in Part VB, which are being repealed by Item 39. The new
section 113W sets out a single set of requirements that must be fulfilled before the
Minister or the Copyright Tribunal can declare a body to be a collecting society. These
requirements are that the Minister may not declare a body to be a collecting society
unless:
it is a company limited by guarantee and incorporated under a law of the
Commonwealth or a State or a Territory relating to companies (paragraph 113W
(a));
all eligible right holders or their agents are entitled to become its members
(paragraph 113W(b));
payments of dividends to members are prohibited under the collecting society's
rules (paragraph 113W(c)); and
27
the collecting society's rules contain provisions as prescribed in the regulations,
which are necessary to ensure that the interests of its members, who are eligible
rights holders, are adequately protected (paragraph 113W(d)) including:
- the collection of amounts under the scheme from administering bodies
(subparagraph 113W(d)(i));
- the payment of administrative costs of the society out of amounts collected
(subparagraph 113W(d)(ii));
- the distribution of amounts collected by it (subparagraph 113W(d)(iii));
- the holding on trust by the society of amounts for eligible copyright owners
who are not its members (subparagraph 113W(d)(iv)); and
- access to records of the society by its members (subparagraph 113W(d)(v)).
Section 113X Revocation of declaration
Section 113X replaces current sections 135Q and 135ZZC in Parts VA and VB, which
are being repealed by Item 39, and provides that the Minister may, by instrument,
revoke the declaration of a body to be a collecting society if satisfied that the body:
is not functioning adequately as a collecting society (paragraph 113X(1)(a));
is not acting in accordance with its rules or in the best interest of its members
who are eligible right holders or their agents (paragraph 113X(1)(b));
has altered its rules to no longer comply with paragraphs 113W(1)(c) or (d)
(paragraph 113X(1)(c)); or
has refused or failed, without reasonable excuse, to comply with the annual
reporting and accounting requirements of s113Z or 113ZA (paragraph
113X(1)(d)).
This provision also enables the Minister to refer a question of whether a declaration
should be revoked to the Copyright Tribunal for determination. The Copyright Tribunal
(Procedure) Regulations 1969 set out the matters to be addressed when referring a
question to the Tribunal.
Subsection 113X(6) suppresses the operation of the standard provision giving the power
to revoke, vary or amend an instrument in subsection 33(3) of the Acts Interpretation
Act 1901 given the specific rules about revoking a declaration in section 113X.
Subdivision B - Operation of collecting society
Section 113Y Scope of this Subdivision
Section 113Y sets out the collecting societies to which Subdivision B applies. This is a
works collecting society and the broadcasts collecting society.
Section 113Z Annual report and accounts
Section 113Z sets out the obligations of the collecting society with regard to the
preparation of annual reports, accounting records and the auditing of such records.
28
Subsection 113Z(6) clarifies that the section is not to affect any obligations which a
collecting society may have with respect to the preparation and lodging of annual
returns and accounts pursuant to the law under which it is incorporated.
Under section 113Z, the collecting society would be required to prepare annual reports
of its operations and annual audited accounts, and send a copy of these to the relevant
Minister. Such reports and accounts would assist the Minister in any decision the
Minister is required to make under the new section 113X. The transitional provisions set
out in Part 3 of Schedule 1 to the Bill provide that section 113Z will apply to financial
years ending on or after the commencement of that item (see Item 83(6)).
Under subsection 113Z(5), the collecting society is also required to give members
reasonable access to copies of all reports and audited accounts prepared under
section 113Z.
Section 113ZA Amendment of rules
Section 113ZA provides that the collecting society must, within 21 days after any
alteration of its rules, send a copy of the rules as altered to the Minister, together with a
statement explaining the effect of the alteration and the reason it was made.
Section 113ZB Review of distribution arrangement by Copyright Tribunal
Section 113ZB provides that either a collecting society or a member of the society can
apply for a review of the distribution arrangement adopted, or proposed to be adopted,
to distribute remuneration collected.
Following an application the Copyright Tribunal must either confirm, vary or substitute
the arrangement by way of an order. Any order substituting the arrangement has the
effect as if it had been adopted in accordance with the society's rules however this order
cannot be applied to any distribution commenced before the Tribunal's order is made.
The transitional provisions set out in Part 3 of Schedule 1 to the Bill provide that orders
made under the repealed paragraphs 153DE(4)(b) and 153BAD(4)(b) that are in force
immediately before commencement of this item, will have effect as if they had been
made under the new paragraph 113ZB(2)(b), and orders that are made under
paragraphs 153DE(4)(c) and 153BAD(4)(c) that are in force immediately before
commencement of this item will have effect as if they had been made under the new
paragraph 113ZB(2)(c) (see Item 83(3), table items 8 to 11).
Section 113ZC Operation of collecting society rules
Section 113ZC confirms that Divisions 4 and 5 of the new Part IVA will apply to the
declared collecting society notwithstanding anything to the contrary in the rules of the
society, whilst still preserving the operation of any rules capable of operating
concurrently with Divisions 4 and 5.
29
Item 3 - Subdivisions C and D of Division 3 of Part VI
Subdivision C - Applications and referrals relating to Part IVA
Section 153A Applications and referrals relating to Division 4 of Part IVA
Item 3 repeals Subdivisions C and D of Division 3 of Part VI that relate to making
applications to the Copyright Tribunal under Parts VA and VB of the Act, which are
being repealed, and inserts a new Subdivision C - Applications and referrals relating to
Part IVA.
Subsection 153A(1) of the new Subdivision C provides that section 153A applies to an
application or referral to the Tribunal of the type mentioned in column 1 of the table in
subsection 153A(4).
Subsection 153A(2) provides that the parties to the application or referral are the parties
in column 2 of the table in subsection 153A(4).
Subsection 153A(3) provides that the Tribunal must consider the application or referral,
give the parties the opportunity to present their cases, and comply with column 3 of the
table in subsection 153A(4).
Subsection 153A(4) contains a table, which sets out for each type of application or
referral, who the parties to the application or referral should be and the powers the
Tribunal has in relation to that application or referral.
Column 1 sets out the types of applications or referrals that may be made to the
Tribunal relating to licensed copying and communicating. These include:
an application under paragraph 113P(4)(b) or 113S(4)(b) to determine a
question. A question to be considered by the Tribunal may include whether a
copying or communication complied with the agreement between the collecting
society and a body administering the educational institution or the issue of an
order to a body administering an educational institution enabling the collecting
society to enter premises for the purpose of inspecting compliance with a
remuneration notice issued under section 113Q;
an application under paragraph 113R(2)(b) to determine an amount of equitable
remuneration for copying carried out under a remuneration notice in
section 113Q. This may include an amount for past or future copying or
communication under the statutory licence;
a referral under paragraph 113V(2)(c) of an application by a body to be declared
a collecting society;
a referral under paragraph 113X(2)(b) of a question as to whether a declaration
of a body to be a collecting society should be revoked; or
an application under subsection 113ZB(1) to review the arrangement adopted, or
proposed to be adopted, by a collecting society for distributing amounts it
collects in a period.
30
Column 2 sets out who the parties to the application are, as follows:
in respect to an application to determine a question under paragraphs 113P(4)(b)
or 113S(4)(b), the relevant collecting society and the body administering the
relevant educational institution;
in respect to an application to determine an amount of equitable remuneration
under paragraph 113R(2)(b), the relevant collecting society and the body
administering the relevant educational institution;
in respect to an application by a body to be declared a collecting society under
paragraph 113V(2)(c), the applicant and any person made a party under
subsection 153A(5);
in respect to a referral to have a declaration of a body as a collecting society
revoked under paragraph 113X(2)(b), the Minister, the body and any person
made a party under subsection 153A(5); and
in respect to an application under subsection 113ZB(1), the applicant for the
review, the collecting society and any member or organisation made a party
under subsection 153A(5).
Column 3 sets out what the Tribunal must do, including:
having regard to any matters prescribed by the regulations, determine the
relevant question under subsection 113P(4) or 113S(4);
having regard to any matters prescribed by the regulations, determine the
amount of equitable remuneration under subsection 113R(2);
declare the applicant to be a collecting society under subsection 113V(3) or
refuse to declare the applicant to be a collecting society under that subsection;
revoke the declaration, or refuse to revoke the declaration, under
subsection 113X(3); and
make an order under subsection 113ZB(2).
If the Minister refers an application to the Tribunal for the declaration or revocation of
the declaration of a body as a collecting society, the Tribunal may declare, or revoke a
declaration by notifiable instrument. The Minister has the discretion to refer an
application for a declaration, or the revocation of a declaration, to the Tribunal under
sections 113V and 113X respectively. When this occurs, the Minister becomes a party
to the referral along with the applicant society and any other person the Tribunal
considers a party to the matter. The Tribunal must afford all parties the opportunity to
present their cases and then make a declaration, reject the application or revoke or
refuse to revoke the declaration.
Subsection 153A(5) provides that for the purposes of column 2 of item 3, 4 or 5 of the
table, the Tribunal may make persons or organizations a party if the person or
organization asks to be made a party and:
for referrals under paragraphs 113V(2)(c) and 113X(2)(b) relating to an
application for the declaration or revocation of a body to be a collecting society,
the Tribunal considers the person has a sufficient interest in the matter
(item 3 and 4, column 2);
31
for applications under subsection 113ZB(1), to review distribution arrangements
under subsection 113ZB(1), the Tribunal considers that a person or organization
has a substantial interest in the arrangement and the person or organization is a
member of the collecting society, or is an organization that claims to be
representative of members of the collecting society (item 5, column 2).
Item 4 - Subsection 200(1)
Use of works and broadcasts for educational purposes
Item 4 replaces the current subsection 200(1) with simplified provisions that enable a
teacher or student to copy a work, or make or copy an adaptation of a work, for
educational instruction (see the new subsections 200(1) and (1B)(a)). The copying or
adaptation must be carried out by a teacher or student and cannot be done using a device
capable of producing multiple copies. In effect, this exception allows a teacher to copy a
work by writing the content on a blackboard, whiteboard or overhead projector sheet. It
does not, however, provide a non-remunerable exception allowing copying by using
reproduction devices such as photocopiers.
The current subparagraph 200(1)(b) would be replaced by the new subsection 200(1A).
The new provision would enable teachers and students to copy and communicate all
forms of copyright material, including an adaptation of copyright material, without
infringing copyright, provided it is for the purpose of conducting or answering
examination questions (see the new subsections 200(1A) and (1B)). This amendment
ensures Australian schools are able to comply with the National Principles for Online
Assessment and would enable examinations to be conducted using future technologies
without infringing copyright.
Part 2 - Consequential amendments
Copyright Act 1968
Item 5 - Subsection 10(1)
Item 5 inserts a new definition of 'body administering' in subsection 10(1) in relation to
(a) a body administering an institution; and (b) a body administering a library or
archives. These new definitions replace the current definitions in paragraphs 10(3)(a)
and (b) of the Act and are in substantially the same form. Paragraphs 10(3)(a) and (b)
would be repealed (see Item 14.)
Item 5 also inserts new definitions of 'broadcasts collecting society' and 'collecting
society' in subsection 10(1) consequential to the insertion of new provisions relating to
educational statutory licences in Divisions 4 and 5 of the new Part IVA (see Item 2).
The 'broadcasts collecting society' is the collecting society declared under section 113V
to collect for the copying and communicating of a broadcast, or a work, sound recording
or cinematograph film included in a broadcast, as provided in subsection 113P(2). The
new definition of collecting society only relates to collecting societies that are declared
in relation to statutory licences. The Act does not refer to other non-declared collecting
societies, which would still be considered to be collecting societies under the general
(non-legislative) meaning of the term.
32
Item 6 - Subsection 10(1) (definition of copy)
Item 6 substitutes a new definition of 'copy' in subsection 10(1), which has been
expanded to include the meaning of 'copy' in relation to works, sound recordings,
cinematograph films and broadcasts.
The meaning of copy is defined to mean a reproduction when referring to works (see
paragraph (a) of the new definition). This change is consequential to the adoption of the
term 'copyright material' in the new Part IVA, wherein the term copy is used as a single
term to refer to a reproduction of a work and a copy of subject-matter other than works.
The current definition of 'copy' in relation to a cinematograph film in subsection 10(1)
has been replicated in this new definition in subsection 10(1) (see paragraph (b)).
The current definition of 'copy' in relation to a sound recording in paragraph 10(3)(c)
has been replicated in this new definition in subsection 10(1) (see paragraph (c)).
Paragraph 10(3)(c) would be repealed (see Item 14).
The current definition of 'copy' in relation to a broadcast in paragraph 135B(a) has been
replicated in this new definition in subsection 10(1) (see paragraph (d)). Section 135B
(located in Part VB of the Act) would be repealed (see Item 39).
Item 7 - Subsection 10(1) (at the end of paragraphs (aa), (a), (b) and (c) of the
definition of educational institution)
Item 7 makes a minor technical amendment by adding the word 'or' at the end of these
paragraphs.
Item 8 - Subsection 10(1) (paragraphs (d) to (i) of the definition of educational
institution)
Item 8 repeals paragraphs (d) to (i) of the definition of 'educational institution' in
subsection 10(1) and inserts new paragraphs (d) to (i), which do not contain references
to subsection 10A and remove the requirement for institutions to provide declarations as
to the principal function of the institution. These changes are consequential to the repeal
of subsection 10A (see Item 17) and the simplification of the educational statutory
licences (see Item 2).
Item 9 - Subsection 10(1)
Item 9 inserts a new definition of 'eligible rights holder' as provided in
subsection 113V(9) for a works collecting society and the broadcast collecting society.
Item 9 also inserts new definitions of 'government' and 'government copy' in
subsection 10(1), which provide cross-references to the meanings of these terms in
Division 2 of Part VII (see section 182B). These new definitions in subsection 10(1) are
effectively being relocated from section 148 (Subdivision A in Division 3 of Part VI), as
Subdivision A is being repealed under Item 42.
33
Item 10 - Subsection 10(1)
Item 10 repeals definitions of 'institution assisting persons with an intellectual
disability' and 'institution assisting persons with a print disability' from
subsection 10(1) and is consequential to the insertion of a new definition of
'organisation assisting persons with a disability' (see Item 1).
Item 11 - Subsection 10(1)
Item 11 inserts a new definition of 'key cultural institution' in subsection 10(1), which
provides a cross-reference to the meaning of 'key cultural institution' in the new
section 113L of Division 3 of Part IVA (see Item 2).
Item 11 inserts a new definition of 'licensed copying or communicating' in
subsection 10(1), which provides a cross-reference to the meaning of 'licensed copying
or communicating' in the new subsection 113Q(2) of Division 4 of Part IVA (see
Item 2).
Item 11 inserts a new definition of 'Parliament' in subsection 10(1), which provides a
cross-reference to the meaning of 'Parliament' set out in section 12 of the Act
consequential to the new Subdivision A of Division 3 of Part IVA which relates to
library services for members of Parliament (see Item 2).
Item 12 - Subsection 10(1) (definition of person with a print disability)
Item 12 repeals the definition of a 'person with a print disability' from subsection 10(1)
consequential to the insertion of a new definition in subsection 10(1) of 'person with a
disability' (see Item 1).
Item 13 - Subsection 10(1)
Item 13 inserts a new definition of 'record embodying' in relation to a sound recording.
This definition replicates the current meaning of 'record embodying a sound recording'
referred to in paragraph 10(3)(l), which would be repealed (see Item 14).
Item 13 also inserts new definitions of 'remuneration notice', 'rules' and 'works
collecting society' and is consequential to the repeal of the educational statutory
licences contained in Parts VA and VB (see Item 39) and the insertion of new
provisions relating to educational statutory licences in Divisions 4 and 5 of the new Part
IVA (see Item 2).
34
Item 14 - Paragraphs 10(3)(a), (b), (c), (f), (h), (ha), (l) and (m)
Item 14 repeals paragraphs 10(3)(a), (b), (c), (f), (h), (ha), (l) and (m).
The provisions in current paragraph 10(3)(a) and (b) relating to references to a body
administering an institution and a body administering a library or archives have been
repealed and are replicated in the new definition of 'body administering' in subsection
10(1) (see Item 5).
The provisions in current paragraph 10(3)(c) relating to references to a copy of a sound
recording have been repealed and are replicated in the new definition of 'copy' in
subsection 10(1) (see Item 6).
The provisions in current paragraph 10(3)(l) relating to references to a record
embodying a sound recording have been repealed and are replicated in the new
definition of 'record embodying' in subsection 10(1) (see Item 13).
Item 14 also repeals paragraphs 10(3)(f), (h), (ha) and (m) relating to educational
institutions and institutions assisting persons with a print and intellectual disability, and
is consequential to the repeal of the educational statutory licences contained in Parts VA
and VB (see Item 39), the repeal of section 200AA (see Item 54), and 200AB(4) (see
Item 56) and the insertion of new simplified provisions for access to copyright material
by or on behalf of a person with a disability and educational statutory licences (see
Item 2).
Item 15 - Subsection 10(5)
Item 15 makes a minor amendment to subsection 10(5) consequential to amendments to
the definition of 'copy' in subsection 10(1), to reflect that the definition of 'copy' in
relation to a cinematograph film is now contained in paragraph (b) of the definition of
'copy' in subsection 10(1) (see Item 6).
Item 16 - Subsection 10(6)
Item 16 makes a minor amendment to subsection 10(6) consequential to amendments to
the definition of 'copy' in subsection 10(1), to reflect that the definition of 'copy' in
relation to a sound recording is now contained in paragraph (c) of the definition of
'copy' in subsection 10(1) (see Item 6), and paragraph 10(3)(c) would be repealed (see
Item 14).
Item 17 - Sections 10A and 47A
Item 17 repeals section 10A to remove the requirement for an organisation assisting
persons with a print or intellectual disability to apply to become declared for the
purposes of the Act, and self-declaration for educational institutions (which are now
captured in the definition of 'educational institution' in subsection 10(1) (see Item 8)).
Item 17 also repeals section 47A relating to sound broadcasts by holders of print
disability radio licences.
The repeal of these sections is consequential to the insertion of new simplified
provisions for access of copyright material by or on behalf of a person with a disability
35
(see Item 2). It is intended that any copyright uses made for the purposes of section 47A
of a print disability radio service would be made under the new section 113E or 113F.
These new sections also provide flexibility for services delivered other than by radio.
Item 18 - Subsections 49(2) and (2C) (note)
Item 18 amends the Notes to subsections 49(2) and (2C), to replace the references to
subsection 51A(1), which is being repealed (see Item 22), with references to new
subsection 113H(1) under Division 3 of the new Part IVA (see Item 2).
Item 19 - Subsection 49(9) (note)
Item 19 amends the Note to subsection 49(9) to remove the reference to section 203D
consequential to the repeal of section 203D (see Item 61).
Item 20 - Subsection 50(2) (note)
Item 20 amends the Note to subsection 50(2) to remove the reference to
subsection 51A(1) and replace it with a reference to the new subsection 113H(1),
consequential to the repeal of section 51A (see Item 22).
Item 21 - Subsection 50(10) (note)
Item 21 amends the Note to subsection 50(10) to remove the reference to section 203D
consequential to the repeal of section 203D (see Item 61).
Item 22 - Sections 51A and 51B
Item 22 repeals the current preservation exceptions in sections 51A and 51B given the
new Division 3 of Part IVA (sections 113G to 113M) providing for use of copyright
material, without infringement, for the purposes of libraries, archives and key cultural
institutions (see Item 2).
Item 23 - At the end of paragraph 53(a)
Item 23 makes a minor technical amendment to insert the word 'and'.
Item 24 - Paragraph 53(b)
Item 24 amends paragraph 53(b) consequential to the repeal of section 51A of the Act
(see Item 22).
Item 25 - At the end of paragraph 53(b)
Item 25 makes a minor technical amendment to insert the word 'and'.
Item 26 - Paragraph 53(d)
Item 26 amends paragraph 53(d) consequential to the repeal of section 51A of the Act
(see Item 22).
36
Item 27 - At the end of section 54
Item 27 amends section 54 to provide that, for the purposes of Division 6 of Part III, the
definition of 'original form' in subsection 10(1), inserted by Item 1 of Schedule 1 to the
Bill, does not apply. This would have the effect that the reference to 'original form' in
paragraph 54(1)(a) refers to 'original form' in its ordinary meaning, that is, the musical
work as it was originally composed, as compared to an adaptation of the work.
Item 28 - Section 100AH (note)
Item 28 removes the reference to 'a relevant right holder under section 135A' from the
Note to section 100AH and replaces it with a reference to 'an eligible rights holder
under subsection 113V(9)', is consequential to the repeal of Part VA (see Item 39).
Item 29 - Section 100AH (note)
Item 29 removes the reference to '135ZB' from the Note to section 100AH and is
consequential to the repeal of Part VB (see Item 39).
Item 30 - Sections 110B and 110BA
Item 30 repeals sections 110B and 110BA given the new Division 3 of Part IVA
(sections 113G to 113M) providing for certain use of copyright material, without
infringement, for the purposes of libraries, archives and key cultural institutions (see
Item 2).
Item 31 - Subparagraph 112(a)(i)
Item 31 adds a reference in subparagraph 112(a)(i) to section 113E and is consequential
to the new section 113E, which provides a fair dealing for the purpose of access by, or
on behalf of, a person with a disability (see Item 2).
Item 32 - Subparagraph 112(a)(ii)
Item 32 amends subparagraph 112(a)(ii) to replace references to sections 51A, 51B,
135ZG, 135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ, 135ZR, 135ZS and
135ZT with references to sections 113F, 113H, 113J, 113K, 113M and 113P under the
new Divisions 2, 3 and 4 of Part IVA (see Item 2).
Item 33 - Subparagraph 112(b)(i)
Item 33 amends subparagraph 112(b)(i) by including a reference to section 113E and is
consequential to the insertion of the new fair dealing exception in section 113E for
disability access purposes (Item 2).
Item 34 - Subparagraph 112(b)(ii)
Item 34 amends subparagraphs 112(b)(ii) to replace references to sections 51A, 51B,
135ZG, 135ZJ, 135ZK, 135ZL, 135ZM, 135ZN, 135ZP, 135ZQ 135ZR, 135ZS and
135ZT with references to sections 113F, 113H, 113J, 113K, 113M and 113P under the
new Divisions 2, 3 and 4 of Part IVA (see Item 2).
37
Item 35 - Section 112AA
Item 35 repeals section 112AA given the new Subdivision B (sections 113L and 113M)
of Division 3 of Part IVA providing for the making of preservation copies of significant
material in key cultural institutions' collections (see Item 2).
Item 36 - Section 116AB (definition of copyright material)
Item 36 repeals the definition of 'copyright material' from section 116AB and is
consequential to the insertion of a new definition of 'copyright material' in
subsection 10(1) (see Item 1).
Item 37 - Section 132AA (definition of copyright material)
Item 37 repeals the definition of 'copyright material' from section 132AA and is
consequential to the insertion of a new definition of 'copyright material' in
subsection 10(1) (see Item 1).
Item 38 - Section 134B (definition of copyright material)
Item 38 repeals the definition of 'copyright material' from section 134B and is
consequential to the insertion of a new definition of 'copyright material' in subsection
10(1) (see Item 1).
Item 39 - Parts VA and VB
Item 39 repeals Parts VA and VB which relate to the statutory licences for educational
and other institutions and is consequential to the insertion of new educational statutory
licences for works and broadcasts and new provisions for disability access (see Item 2).
Item 40 - Section 135ZZI (definition of rules)
Item 40 removes the definition of 'rules' in respect to collecting societies from
section 135ZZI and is consequential to the insertion of a new definition of 'rules' in
subsection 10(1) (see Item 13).
Item 41 - Section 135ZZZF (definition of rules)
Item 41 removes the definitions of 'rules' in respect to collecting societies from section
135ZZZF and is consequential to the insertion in subsection 10(1) of the new definition
of 'rules' (see Item 13).
Item 42 - Subdivision A of Division 3 of Part VI
Item 42 repeals the definitions of 'copyright material', 'government' and 'government
copy' from current section 148 in Subdivision A of Division 3 of Part VI. These
definitions draw on the same meanings as used in Division 2 of Part VII relating to
Crown use of copyright material (see section 182B).
The definitions in section 148 have been relocated. Item 44 inserts the definition of
'copyright material' in Subdivision E of Division 3 of Part VI. This is because this
definition of copyright material (which excludes computer software) is only relevant to
38
Subdivision E of Division 3 of Part VI, and Division 2 of Part VII. A new, broader
definition of 'copyright material' has been inserted in subsection 10(1) by Item 1, which
applies to all other parts of the Act. The definitions of 'government' and 'government
copy' have been relocated to subsection 10(1) (see Item 9).
Item 43 - Section 149A
Item 43 repeals section 149A, which relates to the matters to be included when making
an application to the Copyright Tribunal under section 47A. The repeal of this section is
consequential to the repeal of section 47A (see Item 17) and the insertion of new
provisions for disability access (see Item 2).
Item 44 - Before section 153E
Item 44 inserts a new definition of 'copyright material' in Subdivision E of Division 3
of Part VI that deals with applications to the Copyright Tribunal relating to Part VII of
the Act (The Crown). This amendment provides that the definition that applies to the
Government use statutory licence in Division 2 of Part VII also applies to Subdivision E
of Division 3 of Part VI.
Item 45 - Subdivision F of Division 3 of Part VI
Item 45 repeals Subdivision F of Division 3 of Part VI, which relates to the review by
the Copyright Tribunal of declarations of certain educational institutions and is
consequential to the repeal of section 10A (see Item 17).
Item 46 - Subsection 195A(3)
Item 46 repeals subsection 195A(3), and substitutes a new subsection 195A(3), which
only applies to educational institutions, and not to institutions assisting persons with a
print and intellectual disability. This amendment is consequential to the insertion of
disability access provisions for organisations assisting persons with a disability
(see Item 2).
Item 47 - Paragraphs 195B(1)(a) and (b)
Item 47 repeals paragraphs 195B(1)(a) and (b), which relate to the Attorney-General's
power of refusal to make a declaration or revoking declarations of institutions assisting
persons with a print and intellectual disability and is consequential to the repeal of
section 10A (see Item 17) and the insertion of new provisions for organisations assisting
persons with a disability (see Item 2).
Item 48 - Paragraph 195B(1)(e)
Item 48 omits from paragraph 195B(1)(e), which relates to the refusal by the Minister to
declare a body a collecting society, references to paragraphs 135P(1A)(b) and
135ZZB(1A)(b) and substitutes a reference to paragraph 113V(2)(b). This is
consequential to the repeal of Parts VA and VB (see Item 39) and the insertion of new
provisions for collecting societies (see Item 2).
39
Item 49 - Paragraph 195B(1)(f)
Item 49 omits from paragraph 195B(1)(f), which relates to the revocation by the
Minister of a declaration of a collecting society, references to paragraphs 135Q(2)(a)
and 135ZZC(2)(a) and substitutes a reference to paragraph113X(2)(a). This is
consequential to the repeal of Parts VA and VB (see Item 39) and the insertion of new
provisions for collecting societies (see Item 2).
Item 50 - Subsection 195B(2)
Item 50 repeals subsection 195B(2), which relates to reviewable decisions of the
Attorney-General in respect to declaring and revoking declarations of an institution
assisting a person with a print and intellectual disability under section 10A. The repeal
is consequential to the repeal of section 10A (see Item 17) and the insertion of new
provisions for organisations assisting persons with a disability (see Item 2).
Item 51 - Subsection 195B(4)
Item 51 omits '(2) or' from the first part of subsection 195B(4) and is consequential to
the repeal of subsection 195B(2) (see Item 50).
Item 52 - Subsection 195B(4)
Item 52 omits '(2)(b) or (c) or (3)(b), as the case requires' from subsection 195B(4) and
substitutes '(3)(b)' and is consequential to the repeal of subsection 195B(2) (see
Item 50).
Item 53 - Subsections 200(3) and (4)
Item 53 inserts '(1A),' after subsection (1) and is consequential to the amendments
made to subsection 200(1) which relocates examination copying from current
subsection 200(1)(b) to the new subsection (1A) (see Item 4).
Item 54 - Section 200AA
Item 54 repeals section 200AA, which relates to the use of broadcasts by institutions
assisting persons with an intellectual disability. This function is now provided for by the
insertion of new provisions for organisations assisting a person with a disability (see
Item 2).
Item 55 - Paragraph 200AB(1)(b)
Item 55 omits reference to ', (3) or (4)' from paragraph 200AB(1)(b) and substitute 'or
(3)' which is consequential to the repeal of subsection 200AB(4) (see Item 56) and the
insertion of the new fair dealing exception in section 113E for use by or for persons
with a disability (see Item 2).
Item 56 - Subsection 200AB(4)
Item 56 repeals subsection 200AB(4), which relates to use of works and other
subject-matter by or for persons with a disability, and is consequential to the insertion of
40
the new fair dealing exception in section 113E for use by or for persons with a disability
(see Item 2).
Item 57 - Subsection 200AB(6) (examples 1 and 2)
Item 57 repeals the examples below subsection 200AB(6) and substitutes a single
example in relation to paragraph (a). The removal of the second example is
consequential to the insertion of the new fair dealing exception in section 113E for use
by or for persons with a disability (see Item 2). The substitution of the word 'appliance'
with the word 'device' in the new example is consequential to the revised terminology
in the new subsection 200(1) (see Item 4).
Item 58 - After subsection 200AB(6)
Item 58 inserts a new subsection 200AB(6AA). The new subsection clarifies that when
determining whether copying and communication is 'licensed copying or
communicating' under subsection 113Q(2), section 200AB should be disregarded.
In effect, copying or communication is not licensed copying or communication if any
exception other than sections 200AB or 113P apply to it. However, if particular copying
or communication does not come within another exception, or the statutory licence in
section 113P, then subsection 200AB(3) may still apply.
Item 59 - Subsection 200AB(6A)
Item 59 omits the words ', (3)(c) or (4)(c)' from subsection 200AB(6A) and substitutes
'or (3)(c)'. This removes the reference to subsection 200AB(4) and is consequential to
the repeal of subsection 200AB(4) (see Item 56) and the insertion of the new fair
dealing exception in section113E for use by or for persons with a disability (see Item 2).
Item 60 - Subparagraph 203A(1)(b)(i)
Item 60 omits references to sections 51A or 110B from subparagraph 203A(1)(b)(i) to
remove provisions relating to making and keeping declarations under section 51A or
110B. Sections 51A and 110B would be repealed by Items 22 and 30 following the
insertion of Division 3 of the new Part IVA (see Item 2). Division 3 provides for certain
use of copyright material, without infringement, for the purposes of libraries, archives
and key cultural institutions. To reduce the regulatory burden on libraries and archives,
for the purposes of the new Division 3, libraries and archives would not be required to
make or keep declarations.
Item 61 - Section 203D
Item 61 repeals section 203D consequential to the repeal of sections 51A and 110B
under Items 22 and 30 following the insertion of Division 3 of the new Part IVA (see
Item 2). The specific offence of failing to arrange declarations in chronological order in
section 203D is no longer considered necessary. There are other offence provisions in
the Act (for example, subsection 203E(6)) that are sufficient to achieve the underlying
policy intent of facilitating inspection of records and declarations made by libraries and
archives.
41
Item 62 - Section 203E (heading)
Item 62 makes a minor technical amendment to the heading of section 203E to clarify
that section 203E relates only to the inspection of records and declarations retained in
records of libraries and archives and not in other institutions.
Item 63 - Subsection 203E(1)
Item 63 amends section 203E to remove provisions relating to making and keeping
declarations under sections 51A or 110B which would be repealed by Items 22 and 30
following the insertion of Division 3 of the new Part IVA (see Item 2). Division 3
provides for certain use of copyright material, without infringement, for the purposes of
libraries, archives and key cultural institutions. To reduce the regulatory burden on
libraries and archives, for the purposes of the new Division 3, libraries and archives
would not be required to make or keep declarations.
Item 64 - Paragraphs 203F(a) and 203G(a)
Item 64 amends sections 203F and 203G to remove provisions relating to making and
keeping declarations under sections 51A or 110B which would be repealed by Items 22
and 30 following the insertion of Division 3 of the new Part IVA (see Item 2). Division
3 provides for certain use of copyright material, without infringement, for the purposes
of libraries, archives and key cultural institutions. To reduce the regulatory burden on
libraries and archives, they would not be required to make or keep declarations for the
purposes of the new Division 3.
Items 65 to 69 - Subsections 203H(1), (2), (4)(a), (5), (5)(b)(iv) and (c)(iv)
Items 65 to 69 amend section 203H to remove references to sections 51A or 110B
which would be repealed by Items 22 and 30 following the insertion of Division 3 of the
new Part IVA (see Item 2). Division 3 provides for certain use of copyright material,
without infringement, for the purposes of libraries, archives and key cultural
institutions. To reduce the regulatory burden on libraries and archives, they would not
be required to make notations on copies of a work for the purposes of the new
Division 3.
Item 70 - Subsections 203H(6) to (10)
Item 70 repeals subsections 203H(6) to (10), which relate to marking and record
keeping requirements by educational and other institutions and is consequential to the
repeal of the Part VA and VB statutory licences (see Item 39).
Item 71 - Subsection 248A(1) (at the end of paragraph (aa) of the definition of
exempt recording)
Item 71 adds a note to paragraph (aa) of the definition of 'exempt recording' in
subsection 248A(1) that provides a cross-reference to subsection 248A(1A).
Under paragraph (aa), an 'exempt recording' includes an indirect sound recording of a
performance that is a fair dealing with the performance for the purpose of research or
study. Subsection 248A(1A) sets out, for the purposes of paragraph (aa), the matters
42
which must be considered in determining whether a sound recording is a fair dealing
with a performance for the purpose of research or study.
Item 72 - Subsection 248A(1) (paragraphs (c), (d) and (e) of the definition of
exempt recording)
Item 72 updates the definition of 'exempt recording' in subsection 248A(1)
consequential to the insertion of the new Part IVA that permits certain uses of copyright
material (including a sound recording or cinematograph film) by or for persons with a
disability, for the purposes of libraries, archives and key cultural institutions, and by
educational institutions (see Item 2).
Item 72 repeals paragraphs (c), (d) and (e) of the definition of 'exempt recording' and
substitutes those provisions with new paragraphs (c), (d), (e), (ea) and (eb) as follows:
the new paragraph (c) replaces the current paragraph (c), and provides that an
exempt recording means a direct or indirect sound recording or cinematograph
film of a performance if the recording or film is made by, or on behalf of, the
body administering an educational institution and solely for the educational
purposes of that institution or another educational institution. This amendment
complements Division 4 of the new Part IVA;
the new paragraph (d) provides that an exempt recording means a direct or
indirect sound recording or cinematograph film of a performance if the
recording or film is a fair dealing with the performance for the purpose of one or
more persons with a disability having access to copyright material. This
amendment complements section 113E in Division 2 of the new Part IVA;
the new paragraph (e) replaces the current paragraphs (d) and (e), and provides
that an exempt recording means a direct or indirect sound recording or
cinematograph film of a performance if the recording or film is made by, or on
behalf of, an 'organisation assisting persons with a disability' (as newly defined
in subsection 10(1)) and solely for the purpose of assisting one or more persons
with a disability to access copyright material in the required format
(whomsoever provides the access). This amendment complements section 113F
in Division 2 of the new Part IVA.
the new paragraph (ea) provides that an exempt recording means a direct or
indirect sound recording or cinematograph film of a performance if the
recording or film is made by an authorized officer of a library or archives to
which Subdivision A of Division 3 of the new Part IVA applies and solely for
the purposes of preservation or administration of the library or archival
collection, or research, as set out in the new Subdivision A.
The new paragraph (eb) provides that an exempt recording means a direct or
indirect sound recording or cinematograph film of a performance if the
recording or film is made by an authorized officer of a library or archives that is
a 'key cultural institution' (as defined in the new section 113L) and solely for
the purpose of preservation of copyright material of historical or cultural
significance to Australia in the library or archival collection, as set out in
Subdivision B of Division 3 of the new Part IVA.
43
Item 73 - Subsection 248A(1) (paragraphs (ja) and (k) of the definition of exempt
recording)
Item 73 substitutes paragraphs (ja) and (k) of the definition of 'exempt recording'
consequential to amendments made by Item 72.
Paragraph (ja) of the definition of 'exempt recording' would be amended to include a
copy of a sound recording made solely for purposes referred to in new paragraphs (c),
(d), (e), (ea) and (eb). For greater clarity paragraph (ja) would also be amended to
include a reference to existing paragraph (j) as a substitute for existing subparagraph
(n)(ia).
Paragraph (k) of the definition of 'exempt recording' would be amended to include a
copy of a cinematograph film made solely for purposes referred to in new paragraphs
(c), (d), (e), (ea) and (eb). For greater clarity paragraph (k) would also be amended to
include a reference to existing paragraph (j) as a substitute for existing subparagraph
(n)(ii).
Item 74 - Subsection 248A(a) (paragraph (n) of the definition of exempt recording)
Item 74 amends paragraph (n) of the definition of 'exempt recording' to remove
subparagraphs (ia) and (ii) consequential to amendments made by Item 73. Amended
paragraph (n) would have the same effect as existing subparagraph (n)(i).
Item 75 - Subsections 248C(1A) and (2)
Item 75 substitutes subsections 248C(1A) and (2) consequential to amendments made
by Item 72 which inserts new paragraphs (c), (d), (e), (ea) and (eb) of the definition of
'exempt recording' in subsection 248A(1).
New subsection 248C(1A) provides that a sound recording or a copy of a sound
recording, that is an exempt recording because it was made for a purpose mentioned in
paragraph (aaa), (aa), (c), (d), (e), (ea), (eb) or (fa) of the definition of 'exempt
recording' in subsection 248A(1), ceases to be an exempt recording if it used for a
purpose that is not mentioned in those paragraphs without the authority of the
performer.
New subsection 248C(2) provides that a cinematograph film or a copy of a
cinematograph film, that is an exempt recording because it was made for a purpose
mentioned in paragraph (a), (aaa), (b), (c), (d), (e), (ea), (eb) or (f) of the definition of
'exempt recording' in subsection 248A(1), ceases to be an exempt recording if it used
for a purpose that is not mentioned in those paragraphs without the authority of the
performer.
Item 76 - Subsection 248G(1) (note)
Item 76 substitutes the Note to subsection 248G(1) consequential to the repeal of
Part VA (see Item 39) and the insertion of new provisions for the use of copyright
material by educational institutions in Division 4 of the new Part IVA (see Item 2).
44
Items 77 and 78 - Subsection 248PC(7) (note 2)
Items 77 and 78 amend Note 2 to subsection 248PC(7) consequential to the repeal of
Part VA (see Item 39) and the insertion of new provisions for the use of copyright
material by educational institutions in Division 4 of the new Part IVA (see Item 2).
Part 3 - Transitional provisions
Item 79 - Definitions
Item 79 is a machinery clause that provides for references to 'new law' and 'old law' for
the purposes of the transitional provisions in Part 3 of Schedule 1 to the Bill.
Item 80 - Preservation and research
Item 80 contains transitional provisions relating to the use of copyright material made
by libraries and archives, and key cultural institutions under the old law for preservation
and research purposes (preservation and research copies).
These transitional provisions would apply the new subsections 113H(2), 113J(2) and
113M(2) so as to enable preservation and research copies made in electronic form under
the old law (sections 51A, 51B, 110B, 110BA or 112AA) to be made available for
electronic access by a person at the library or archives, or key cultural institution, as if
the copies were made under the new subsections 113H(1), 113J(1) and 113M(1).
Item 81 - Key cultural institutions
Item 81 contains transitional provisions that would enable key cultural institutions
prescribed in the regulations for the purposes of section 51B, 110BA or 112AA of the
old law to be treated as having been prescribed in the regulations for the purposes of
paragraph 113L(b) of the new law.
Item 82 - Educational and other institutions
Item 82 provides in effect that a copy or communication that was made before the
commencement of Item 82, and that was used, made or given in the manner set out in
subsection 135E(2), 135U(2) or 135ZZH(1) under Parts VA and VB of the old law will
continue to be an infringement of copyright despite the repeal of Parts VA and VB by
Item 39.
Item 83 - Educational institutions - licensed copying and communicating
Applications
The table at Item 83(1) provides that:
an application made to the Tribunal under subsections 135ZWAA(2),
135ZX(2A), 135JAA(2) or 135K(2A) of the old law, not fully dealt with before
commencement of Item 83, will have effect from the commencement of Item 83
as if it had been made under the corresponding paragraphs contained within
section 113P of the new law;
45
an application made to the Tribunal under subsections 135H(1), 135J(1),
135JA(1), 135ZV(1), 135ZW(1) or 135ZWA(1) or (2) of the old law, not fully
dealt with before commencement of Item 83, will have effect from the
commencement of Item 83 as if it had been made under paragraph 113R(2)(b)
of the new law;
an application made to the Tribunal under sections 135SA or 135ZZEA of the
old law, not fully dealt with before commencement of Item 83, will have effect
from the commencement of Item 83 as if it had been made under
subsection 113ZB(1) of the new law.
Item 83(2) provides that the parties to an application for review of the distribution
arrangement under sections 135SA or 135ZZEA, are the same persons or organisations
that were parties to the application immediately before commencement of Item 83.
Agreements, determinations, remuneration notices and orders
The table at Item 83(3) provides that:
agreements made under repealed subsections 135ZWAA(2),135ZX(2A),
135JAA(2) or 135KA(2A), and in force immediately before the commencement
of Item 83, will now be taken to have been made under the corresponding
provisions in the new section 113P inserted by Item 2, being
subparagraphs 113P(1)(e)(i) and 113P(2)(d)(i) respectively;
determinations made under repealed sections 135ZWAA(2) and 135ZX(2A) or
135JAA(2) and 135K(2A), and in force immediately before the commencement
of Item 83, will now be taken to have been made under the corresponding
provisions in the new subsection 113P(4), inserted by Item 2, for the purposes
of subparagraphs 113P(1)(e)(ii) and 113P(2)(d)(ii) respectively;
remuneration notices given under repealed Parts VA or VB, and being in force
immediately before commencement of Item 83, will now be taken to have been
given under the new section 113Q, inserted by Item 2;
agreements made under subsections 135H(1), 135J(1), 135JA(1), 135ZV(1),
135ZW(1) or 135ZWA(1) or (2), that are being repealed by Item 39, and being
in force immediately before commencement of Item 83, will now be taken to
have been made under the new paragraph 113R(1)(a) inserted by Item 2;
determinations made under subsections 135H(1), 135J(1), 135JA(1), 135ZV(1),
135ZW(1) or 135ZWA(1) or (2), that are being repealed by Item 39, will now
be taken to have been made under the new subsection 113R(2) inserted at Item
2;
orders made under paragraphs 153DE(4)(b) or 153BAD(4)(b), that are being
repealed by Item 39, will now be taken to have been made under the new
paragraph 113ZB(2)(b) inserted at Item 2;
46
orders made under paragraphs 153DE(4)(c) or 153BAD(4)(c), that are being
repealed by Item 39, will now be taken to have been made under the new
paragraph 113ZB(2)(b) inserted at Item 2.
Collecting societies
Items 83(4) and (5) provide that declarations made under sections 135ZZB and 135P
repealed by Item 39, will continue to have effect as if the declarations had been made
under the new section 113V and to which subparagraphs 113V(4)(a)(i) and (ii) applied
respectively.
Item 83(6) provides that for the purpose of annual reports for financial years ending on
or after the commencement of Item 83, the provisions of the new section 113Z, inserted
by Item 2, will apply.
Item 84 - Inspection notices
Item 84 enables notices given under paragraph 203E(1)(a) of the old law, which specify
a date for inspection that occurs on or after the commencement of Item 84, to have
effect as if the notice had been given under the new subsection 203E(1) inserted by
Item 63.
47
Schedule 2 - Duration of copyright
Copyright Act 1968
The amendments in Schedule 2 to the Bill establish new standard terms of protection for
works, sound recordings and cinematograph films, dependent upon whether such
material has been made public before or after 1 January 2019 when the new provisions
would take effect.
Works
Currently, the Act provides for different terms of copyright protection for works that are
published or otherwise made public and works that are not made public. Generally the
copyright in works made public subsists until either:
the end of 70 years after the end of the calendar year in which the author of the
work died ('life of author plus 70 years') (subsection 33(2)); or
if the work had not been made public before the death of the author, the end of
70 years after the end of the calendar year in which the material was first made
public ('first made public plus 70 years') (subsection 33(3)).
In relation to 'anonymous or pseudonymous' works, currently copyright continues to
subsist until the end of 70 years after the end of the calendar year in which the work was
first made public ('first made public plus 70 years') (section 34).
Where copyright works are not made public, they remain in copyright in perpetuity, and
so their productive uses may be lost. Currently, libraries and archives hold large
numbers of unpublished materials which are an important part of Australia's cultural
heritage. Setting a term of protection for unpublished works would allow greater use of
the considerable cultural value of these materials.
The proposed amendments seek to harmonise the copyright term for works by creating a
new standard protection period of 'life of author plus 70 years' that does not
differentiate between works that are made public and those that are not. The new
standard term would apply to works created before 1 January 2019 that remain
unpublished (or otherwise not made public) at that date. The delay in commencement of
these provisions would enable a copyright owner of a work created by a deceased author
to make that work public before commencement of the new provisions and rely on a
protection period similar to the existing duration provisions for works that are made
public (that is, 'first made public plus 70 years').
In relation to works where the identity of the author remains generally unknown, the
proposed amendments would provide a standard protection period of 70 years from the
year in which a work is 'made' (that is, 'date made plus 70 years'). However, if the
work is made public within 50 years of its making, the proposed amendments provide a
protection period of 'first made public plus 70 years'.
Sound recordings and cinematograph films
Sections 93 and 94 currently provide that copyright in a sound recording and a
cinematograph film subsists for 70 years from publication.
48
The proposed amendments amend these provisions to provide that if the sound
recording or cinematograph film (as the case may be) is made public within 50 years of
being made then copyright subsists for 70 years from first being made public (that is,
'first made public plus 70 years'). If the copyright material is not made public within 50
years of being made the proposed amendments provide for a protection period of 70
years from the making of the sound recording or cinematograph film (that is, 'date made
plus 70 years').
These standard terms of protection would apply to sound recordings and cinematograph
films created before 1 January 2019 that are not made public before that date. If made
public before 1 January 2019, the proposed amendments provide a protection period of
'first made public plus 70 years'.
Crown copyright
The proposed amendments repeal sections 180 and 181 of the Act and insert a new,
consolidated section 180 that provides for a new standard term of protection for works,
sound recordings and cinematograph films owned by the Crown of 50 years from the
year in which the material is made (that is, 'date made plus 50 years'), whether the
material is made public or not.
International organizations
Sections 187 and 188 set out the copyright term for works, sound recordings and
cinematograph films made or first published by international organizations. Schedule 12
of the Copyright Regulations 1969 lists the international organizations to which these
provisions apply.
The current term of copyright for international organizations is unlimited for
unpublished subject matter, and 70 years from first publication for published copyright
material. The term of copyright for published editions is 25 years from first publication
(section 96). Copyright in a new edition of a work or works published by an
international organization continues to subsist for 25 years from first publication.
The proposed amendments set out new terms of protection for copyright material made
by international organizations. If the copyright material is made public within 50 years
of being made then copyright subsists for 70 years from first being made public (that is,
'first made public plus 70 years'). If the copyright material is not made public within 50
years of being made the proposed amendments provide for a protection period of 70
years from the making of the material (that is, 'date made plus 70 years'). These
standard terms of protection would apply to copyright material created before
1 January 2019 that is not made public before that date. If made public before
1 January 2019, the proposed amendments provide a protection period of 'first made
public plus 70 years'.
If the copyright material is a published edition to which subsection 188(3) applies, the
copyright continues to subsist for 25 years from first being made public (that is, 'first
made public plus 25 years').
49
The tables below set out the duration provisions that generally would apply to works,
sound recordings and cinematograph films from 1 January 2019.
Copyright material made before 1 January 2019
(other than Government copyright material)
Type of material Factors affecting duration Copyright expired IF Otherwise, duration is
author died before
Made public before death 1 January 1955* life of author + 70 years
Literary, dramatic, Made public after death made public before first made public + 70
musical work, engraving but before 1 January 2019 1 January 1955* years
Not made public before author died before
1 January 2019 1 January 1948** life of author + 70 years
author died before
Computer program 1 January 1955* life of author + 70 years
Artistic works other than
photographs or author died before
engravings 1 January 1955* life of author + 70 years
made before
Photograph 1 January 1955* life of author + 70 years
Made public before made public before first made public + 70
1 January 2019 1 January 1955* years
made before 1 January
Works where the author Never made public 1948** date made + 70 years
is unknown, or the works Made public on or after
are made by an 1 January 2019 but not
international organization within 50 years of being made before
made 1 January 1948** date made + 70 years
Made public on or after 1
January 2019 and within made public before first made public + 70
50 years of being made 1 January 1955* years
Made public before made before first made public + 70
1 January 2019 1 January 1955* years
made before
Never made public 1 January 1955* date made + 70 years
Made public on or after
Sound recording 1 January 2019 but not
within 50 years of being made before
made 1 January 1955* date made + 70 years
Made public on or after
1 January 2019 and within made before first made public + 70
50 years of being made 1 January 1955* years
Made public before first made public + 70
1 January 2019 N/A years
Never made public N/A date made + 70 years
Cinematograph film Made public on or after
(made on or after 1 January 2019 but not
1 May 1969)*** within 50 years of being
made N/A date made + 70 years
Made public on or after
1 January 2019 and within first made public + 70
50 years of being made N/A years
50
Copyright material made on or after 1 January 2019
(other than Government copyright material)
Type of material Factors affecting duration Copyright expired IF Otherwise, duration is
Works where the author
is known N/A life of author + 70 years
Not made public within
Works where the author 50 years of being made N/A date made + 70 years
is unknown
Made public within 50 first made public + 70
years of being made N/A years
Not made public within
50 years of being made N/A date made + 70 years
Sound recording
Made public within 50 first made public + 70
years of being made N/A years
Not made public within
Cinematograph film 50 years of being made N/A date made + 70 years
Made public within 50 first made public + 70
years of being made N/A years
Government copyright material made before or after 1 January 2019
Type of material Factors affecting duration Copyright expired IF Otherwise, duration is
Works made, or first
published, by a
Commonwealth, State or
made before 1 January
Territory
1968** date made + 50 years
Sound recording
made before 1 January
1968** date made +_50 years
Cinematograph film
(made on or after 1 May
1969)***
N/A date made + 50 years
Notes to tables:
* For this copyright material, copyright expired before 1 January 2005. Generally, prior to 1 January 2005,
copyright lasted until 50 years from the end of the year in which the creator died or, for some material, until 50 years
from the end of the year in which the material was first published. As a result of the Australia-United States Free
Trade Agreement (AUSFTA), on 1 January 2005 the period of protection for most types of copyright material was
extended to 70 years from the end of the year in which the creator died or 70 years from the end of the year in which
the material was first published. If copyright had expired before 1 January 2005, copyright was not revived.
** The amendments made by Schedule 2 to the Bill that provide for the new copyright terms would have the effect
that copyright in this copyright material would cease before 1 January 2019. By virtue of the transitional provisions in
Item 15 of Schedule 2 to the Bill, that copyright will instead cease to subsist on 1 January 2019.
*** Section 221 of the Copyright Act 1968 provides that copyright does not subsist by virtue of section 90 in a
cinematograph film made before the commencement of the Act (1 May 1969). Cinematograph films made before
1 May 1969 may be protected as a combination of original dramatic works, photographs and sound recordings.
51
Item 1 - Subsection 10(1)
Item 1 inserts a new definition of 'generally known' in subsection 10(1) relating to
when the identity of the author of copyright material is said to be 'generally known'.
Without limiting the meaning, the definition clarifies that the identity of the author is
generally known if it can be ascertained by reasonable enquiry.
Item 1 inserts a new definition of 'made public' in subsection 10(1) that provides a
cross-reference to the meaning of 'made public' in the new section 29A (see Item 3
below).
Item 2 - Subsection 14(2)
Item 2 amends subsection 14(2) to remove the reference to section 180 consequential to
substitution of section 180 by Item 12, as the new section 180 does not include any
reference to the publication, or absence of publication of a work.
Item 3 - After section 29 (new section 29A)
Item 3 inserts a new section 29A that provides a definition of 'made public' for the
purposes of the Act, and in particular for the proposed new scheme for duration of
copyright in original works, sound recordings and cinematograph films established by
Schedule 2 to the Bill.
Without limiting when certain copyright material is 'made public', the new section 29A
sets out a range of factors that constitute when a work, sound recording or
cinematograph film is 'made public'. Whilst this includes when a work, sound
recording or cinematograph film has been published (within the meaning affected by
section 29 of the Act), the concept of 'making public' is a broader concept than
publication. In most instances copyright material will be 'first made public' when it is
'first published', however, material could, in certain circumstances, be made public
before publication. Publication (as defined in section 29) generally depends on the
supply, by sale or otherwise, of reproductions or copies of the printed version or other
relevant media to the public. If, for example, a play or the script of a film has been
performed, or the film has been shown in public (which would constitute 'making
public'), but copies of the printed version of the play have not been supplied to the
public, or copies of the film have not been offered or exposed for sale or hired out, this
would not constitute publication.
Under the new section 29A, a work, sound recording or cinematograph film is also
'made public' when the relevant material is 'communicated to the public'.
'Communicate' is defined in current subsection 10(1) to mean 'making available online
or electronically transmit (whether over a path, or a combination of paths, provided by a
material substance or otherwise) a work or other subject-matter, including a
performance or live performance within the meaning of this Act'. A communication 'to
the public', in the context of the proposed new duration of copyright provisions inserted
by Schedule 2, would ordinarily not cover one-to-one communications, that are not
open to members of the public to access. Such one-to-one communications could
include an internal communication, for example, when a library or archives makes
copyright material available on an intranet for administrative purposes. It could also
include external one-to-one communications, for example, when a library emails a copy
52
of a manuscript to another library under interlibrary loan or when a library or archives
directly acquires audiovisual or other material from a third party digital delivery service
such as a satellite platform containing aggregated content which is made available by
copyright owners.
The new subsection 29A(3) provides that subsections 29(4) to (7) apply in relation to
making public in the same way as in relation to publication. This would mean, for
example, that in determining whether a work or other subject matter has been made
public, any unauthorized making public shall be disregarded (subsection 29(6)). Under
subsection 29(7), subject to section 52, an unauthorized making public of copyright
material will occur if done otherwise than by, or with the licence of, the copyright
owner; and an unauthorized making public of material in which copyright does not
subsist will occur if done otherwise than by, or with the licence of, the author of the
work, or the maker or publisher of the sound recording or cinematograph film (as the
case may be).
Item 4 - Sections 33 and 34
Item 4 repeals sections 33 and 34 of the Act and replaces them with a new section 33
which sets out a new scheme for duration of copyright in original works covering:
works first made public before 1 January 2019 (that is, on commencement of
Schedule 2 to the Bill); and
works never made public, and works first made public on or after
1 January 2019.
Subsection 33(2) Works first made public before 1 January 2019
Proposed subsection 33(2) sets out in a table the duration scheme for works first made
public before 1 January 2019, and covers three scenarios:
item 1 of the table - provides for a new standard protection period of 'life of
author plus 70 years' where no other item of this table applies. This is the
default position. This period would apply, for example, if the work is first made
public before the author of the work has died and the identity of the author is
generally known at any time within 70 years of the work being first made
public;
item 2 of the table - provides for a protection period of 'first made public plus
70 years' if the author of the work has died and the work was not first made
public before the author died, and item 3 does not apply;
item 3 of the table - provides for a protection period of 'first made public plus
70 years' if the identity of the author is not generally known at any time within
70 years of the work being first made public.
Subsection 33(3) - Works never made public, and works first made public on or after
1 January 2019
Proposed subsection 33(3) sets out in a table the duration scheme for works never made
public, and works first made public on or after 1 January 2019, and covers three
scenarios:
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item 1 of the table - provides for a new standard protection period of 'life of
author plus 70 years' where no other item of the table applies. This is the default
position. For example, where the author becomes generally known within 70
years of the work being made, copyright duration would default to the standard
protection period of 'life of author plus 70 years';
item 2 of the table - provides for a protection period of 'made plus 70 years' if
the identity of the author is not generally known within 70 years of the work
being made and the work is not first made public before the end of 50 years after
the calendar year in which the work was made;
item 3 of the table - provides for a protection period of 'first made public plus
70 years' if the identity of the author is not generally known at any time within
70 years of the work being first made public, and the work is first made public
within 50 years of the work being made.
Item 5 - Sections 79 and 80
Item 5 repeals sections 79 and 80 and substitutes new sections 79, 79A and 80.
Current sections 79 and 80 relate to works of joint authorship and include references to
current sections 33 and 34 dealing with duration of copyright in original works and in
anonymous and pseudonymous works. Sections 33 and 34 are proposed to be repealed
and a new section 33 inserted (see Item 4). As a consequence current sections 79 and 80
are being updated to refer to the relevant items of the tables in the new subsection 33(2)
and (3) and omit any references to section 34.
Item 5 also inserts a new section 79A that relates to works of joint authorship where
none of the authors of the work are generally known. The new section 79A provides
that for works of joint authorship, references in certain items of the tables in subsection
33(2) and (3) to the identity of the author of a work not being generally known are taken
to be references to the identity of none of the authors of the work being generally
known.
Item 6 - Subsection 81(2)
Item 6 makes consequential amendments to subsection 81(2) given the proposed new
definition of 'generally known' in subsection 10(1) of the Act, which defines 'generally
known' as including if the author's identity 'can be ascertained by reasonable inquiry'.
(see Item 1).
Item 7 - Subsection 81(3)
Item 7 repeals subsection 81(3), which refers to the current section 33, and inserts new
subsections 81(3) and (3A) consequential to the new section 33 (see Item 4). The new
subsections 81(3) and (3A) refer to the relevant provisions set out in the table in
proposed new section 33.
Item 8 - Paragraph 81(4)(b)
Item 8 makes consequential amendments to paragraph 81(4)(b) given the proposed new
definition of 'generally known' in subsection 10(1) of the Act. This new provision
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defines 'generally known', in the context of when the identity of the author of copyright
material is 'generally known', as including 'if it can be ascertained by reasonable
inquiry' (see Item 1).
Item 9 - Sections 93 and 94
Item 9 repeals sections 93 and 94 of the Act and replaces them with a new section 93
which sets out a new scheme for duration of copyright in sound recordings and
cinematograph films ('copyright material') covering:
sound recordings and cinematograph films first made public before
1 January 2019 (that is, on commencement of Schedule 2 of the Bill); and
sound recordings and cinematograph films never made public, and sound
recordings and cinematograph films first made public on or after
1 January 2019.
Subsection 93(2) - Copyright material first made public before 1 January 2019
Proposed subsection 93(2) provides for a standard protection period of 'first made
public plus 70 years' if the relevant sound recording or cinematograph film was first
made public before 1 January 2019.
Subsection 93(3) - Copyright material never made public, and material first made
public on or after 1 January 2019
Proposed subsection 93(3) sets out in a table the duration scheme for sound recordings
and cinematograph films never made public, and sound recordings and cinematograph
films first made public on or after 1 January 2019, and covers two scenarios:
item 1 of the table - provides for a standard protection period of 'first made
public plus 70 years' if the relevant copyright material is first made public
within 50 years of having been made;
item 2 of the table - provides for a standard protection period of 'made plus 70
years' where item 1 of the table does not apply. This is the default position. This
period would apply if, for example, the relevant copyright material is never
made public or if the material is first made public on or after 1 January 2019 but
not within 50 years of having been made.
Item 10 - At the end of paragraph 129(2)(a)
Item 10 is a minor technical amendment.
Item 11 - Paragraph 129(2)(c)
Item 11 makes a consequential amendment to paragraph 129(2)(c) given the proposed
new definition of 'generally known' in subsection 10(1) of the Act. This new provision
defines 'generally known', in the context of when the identity of the author of copyright
material is 'generally known', as including 'if it can be ascertained by reasonable
inquiry' (see Item 1).
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Item 12 - Sections 180 and 181
Item 12 repeals sections 180 and 181 of the Act which provide for duration of Crown
copyright in original works, and sound recordings and cinematograph films
respectively, and substitutes them with a new, consolidated section 180.
Section 180 applies to literary, dramatic, musical and artistic works of which the
Commonwealth or a State is the owner of copyright. Section 180 currently provides for
different copyright terms for published and unpublished Crown copyright works, and
for different terms as between the various types of works:
for literary, dramatic or musical works, copyright in published works subsists
until 50 years after the end of the calendar year in which the work was first
published (that is, 'first published plus 50 years'). Where the work is
unpublished, copyright continues to subsist in perpetuity (subsection 180(1));
for artistic works, copyright subsists until 50 years after the end of the calendar
year in which the work was first made (that is, 'work first made plus 50 years')
(subsection 180(2));
for engravings or photographs, copyright subsists until 50 years after the end of
the calendar year in which the engraving or photograph is first published (that is,
'first published plus 50 years') (subsection 180(3)).
Section 181 applies to sound recordings and cinematograph films of which the
Commonwealth or a State is the owner. Section 181 currently provides that copyright in
a sound recording or cinematograph film subsists until 50 years after the end of the
calendar year in which the recording or film is first published (that is, 'first published
plus 50 years').
The new section 180 provides for a standard term of copyright protection for works,
sound recordings and cinematograph films owned by the Crown of 50 years after the
calendar year in which the material is made (that is, 'made plus 50 years'), whether the
material is made public or not. This would set a copyright term for copyright material
owned by the Crown that is never published and align the copyright terms for all works,
sound recordings and cinematograph films with that for artistic works.
Item 13 - Before section 184
Item 13 inserts a new heading 'Division 1 - Foreign Countries' covering sections 184
and 185 of the Act.
Item 14 - Before section 186
Item 14 inserts a new heading 'Division 2 - International organizations' covering
section 186 to new section 188A of the Act.
Item 15 - At the end of paragraph 187(1)(a)
Item 15 is a minor technical amendment.
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Item 16 - Paragraph 187(1)(b)
Item 16 repeals paragraph 187(1)(b) to remove the provision for the subsistence of
copyright in perpetuity for unpublished works.
The repeal of this paragraph is consequential to the insertion of new standard terms of
protection for copyright material made or first published by an international
organization in section 188A (see Item 27).
Item 17 - At the end of section 187(2)(a)
Item 17 is a minor technical amendment.
Item 18 - Paragraph 187(2)(b)
Item 18 repeals paragraph 187(2)(b) relating to the duration of copyright in works first
published by an international organization.
The repeal of this paragraph is consequential to the insertion of new standard terms of
protection for copyright material made or first published by an international
organization as set out in section 188A (see Item 27).
Item 19 - At the end of section 187
Item 19 inserts a new subsection (4) making clear that section 187 has effect subject to
the new standard terms of protection for copyright material made or first published by
an international organization as set out in section 188A (see Item 27).
Item 20 - At the end of paragraph 188(1)(a)
Item 20 is a minor technical amendment.
Item 21 - Paragraph 188(1)(b)
Item 21 repeals paragraph 188(1)(b) to remove the provision for the subsistence of
copyright in perpetuity for unpublished sound recordings or cinematograph films.
The repeal of this paragraph is consequential to the insertion of new standard terms of
protection for copyright material made or first published by an international
organization as set out in section 188A (see Item 27).
Item 22 - At the end of paragraph 188(2)(a)
Item 22 is a minor technical amendment.
Item 23 - Paragraph 188(2)(b)
Item 23 repeals paragraph 188(2)(b) relating to the duration of copyright in a sound
recording or cinematograph film first published by an international organization.
The repeal of this paragraph is consequential to the insertion of new standard terms of
protection for copyright material made or first published by an international
organization as set out in section 188A (see Item 27).
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Item 24 - At the end of paragraph 188(3)(a)
Item 24 is a minor technical amendment.
Item 25 - Paragraph 188(3)(b)
Item 25 repeals paragraph 188(3)(b) relating to the duration of copyright in an edition of
a work or works published by an international organization.
The repeal of this paragraph is consequential to the insertion of new standard terms of
protection for copyright material made or first published by an international
organization as set out in section 188A (see Item 27).
Item 26 - At the end of section 188
Item 26 inserts a new provision making clear that section 188 has effect subject to the
new standard terms of protection for copyright material made or first published by an
international organization as set out in section 188A (see Item 27).
Item 27 - At the end of Part VIII
Item 27 inserts a new section 188A that sets out a new scheme for duration of copyright
in original works and other subject-matter ('copyright material'), made or first
published by international organizations.
Subsection 188A(2) - Copyright material first made public before 1 January 2019
Proposed subsection 188A(2) provides for a new standard protection period of 'first
made public plus 70 years' if the relevant copyright material was first made public
before 1 January 2019, and is not an edition to which subsection 188(3) applies.
Subsection 188A(3) Copyright material never made public, and material first made
public on or after 1 January 2019
Proposed subsection 188A(3) sets out in a table the duration scheme for copyright
material never made public, and copyright material first made public on or after
1 January 2019, and is not an edition to which subsection 188(3) applies. This table
covers two scenarios:
item 1 of the table - provides for a standard protection period of 'first made
public plus 70 years' if the relevant copyright material is first made public
within 50 years of having been made;
item 2 of the table - provides for a standard protection period of 'made plus 70
years' where item 1 of the table does not apply. This is the default position and
would apply if, for example, the copyright material is never made public or if
the material is first made public on or after 1 January 2019 but not within 50
years of having been made.
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Subsection 188A(4) - Editions
Proposed subsection 188A(4) provides for a standard protection period, if the copyright
material is a published edition to which subsection 188(3) applies, of 25 years after the
edition was first made public.
Item 28 - Sections 233 to 235 (Crown copyright in films)
Item 28 repeals sections 233 and 234 relating to duration of Crown copyright in
photographs and sound recordings consequential to the proposed repeal of sections 180
and 181 and insertion of the new section 180 (see Item 12).
On commencement of the new section 180, there would be no distinction between the
Crown copyright terms for artistic works (currently provided for under subsection
180(2)) and photographs (currently provided under subsection 180(3)). This would
render section 233 obsolete.
Under the new section 180, the current term of Crown copyright in sound recordings,
namely 50 years after first publication, is being replaced with a new standard term of
50 years after the material is made. This would render section 234 obsolete.
Item 28 also repeals and substitutes section 235 relating to Crown copyright in
cinematograph films consequential to the repeal of current sections 180 and 181 and
insertion of the new section 180 by Item 12.
Item 29 - Application of amendments
Item 29 is a machinery provision that applies the amendments made by Schedule 2 to
the Bill to works made before, on or after the commencement of this Item 29.
Item 30 - Transitional provision
Item 30 contains a transitional provision relating to the potential cessation of copyright
under the amendments made by Schedule 2 to the Bill. If the new copyright duration
schemes established under Schedule 2 would have the effect that copyright in a work
ceased to subsist before the commencement of Item 30 (1 January 2019), this
transitional provision would operate so as to preserve copyright up until that date.
Item 31 - Compensation for acquisition of property
Item 31 is a 'safety net' provision that ensures that 'just terms' compensation is payable
if Schedule 2 to the Bill, once enacted, results in an acquisition of property within the
meaning of paragraph 51(xxxi) of the Constitution. Paragraph 51(xxxi) of the
Constitution allows the Commonwealth to acquire property on 'just terms' from any
State or person for any purpose in respect of which the Parliament has power to make
laws. By ensuring 'just terms' compensation is payable, Item 31 ensures the
constitutional validity of Schedule 2.
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Schedule 3 - Minor Amendments
Copyright Act 1968
The items in Schedule 3 contain amendments relating to references to Ministers (Part 1)
and to preconditions for making regulations extending or restricting the operation of the
Act in relation to foreign countries (Part 2).
Part 1 - References to Attorney-General
Items 1, 3, 4, 5 and 6 - Section 135ZZX, subsections 183D(1), 183D(4)(b) and
183D(5) and section 183E
Items 1, 3, 4, 5 and 6 substitute references in the Act to the 'Attorney-General' with
'Minister'. These amendments ensure the provisions reflect alterations made by the
Acts Interpretation (Substituted References - Section 19BA) Amendment Order 2015
(No. 1) pursuant to subsection 19BA(1) of the Acts Interpretation Act 1901.
Item 2 - Subsection 183(6)
Item 2 amends subsection 183(6) of the Act to substitute the reference to
'the Attorney-General of the Commonwealth' to 'the Minister', and to substitute the
reference to 'the Attorney-General of the State' to 'the Minister of the State with
responsibility for copyright'.
These amendments are designed to ensure this provision refers to the relevant
Commonwealth and State Ministers with responsibility for copyright.
Items 7 and 8 - Transitional, savings and applications provisions
Items 7 and 8 include provision for transitional, savings and application provisions to
ensure that the amendments made by Part 1 of Schedule 3 do not result in any
unintended consequences.
Part 2 - Preconditions for making regulations
Item 9 - Subsection 10(1)
Item 9 inserts a new definition of 'international agreement' in subsection 10(1) of the
Act to clarify the scope of the power in sections 184 and 248U (as amended by Items 10
and 15) to make regulations applying provisions of the Act in relation to a foreign
country that is party to an international agreement relating to copyright. Such an
international agreement may include, for example, a convention to which Australia is a
party, or an agreement or arrangement between Australia and a foreign country such as
a bilateral free trade agreement in which copyright forms a part.
Item 10 - Subsection 184(3)
Item 10 repeals and substitutes subsection 184(3) of the Act to modernise and clarify
the circumstances in which regulations may be made to extend the operation of the Act
(other than the provisions of Part XIA relating to performers' protection) to foreign
60
countries. Under the proposed new subsection 184(3), in order for regulations to be
made applying a provision of the Act in relation to a foreign country, either:
(a) the country must be a party to an international agreement specified in the
regulations for this purpose, or
(b) the Minister must be satisfied that adequate protection is or will be given under
the law of that country to owners of copyright under the Act in the relevant class
of works or other subject-matter.
Items 11 to 13 - Subsections 185(1), (2) and (3)
Items 11 to 13 make amendments to modernise the provisions in section 185 relating to
the making of regulations that restrict the application of copyright protections in the Act
to non-resident authors who were or are citizens or nationals of foreign countries, and
bodies incorporated under the laws of foreign countries, that do not give adequate
protection to Australian works.
Currently, under section 185 the Governor-General is required to have regard to the
nature and extent of the lack of protection for Australian works in making regulations
for the purposes of this section in relation to a foreign country.
Under the proposed amendments to section 185, before regulations are made by the
Governor-General for the purposes of the section, the onus is upon the Minister to be
satisfied that the law of the foreign country does not give adequate protection to
Australian works and have regard to the nature and extent of that lack of protection.
Item 14 - Subsection 186(1)
Item 14 amends makes amendments to modernise the provisions in section 186 relating
to the making of regulations to apply provisions of the Act to an international
organization of which two or more countries or Governments are members, or their
representatives constitute the organization.
Currently, subsection 186(1) provides that, where it appears to the Governor-General
that it is desirable that the Act should apply to such an organization, the regulations may
declare that organization to be an international organization to which this Act applies.
Under the proposed amendments to subsection 186(1), before regulations are made by
the Governor-General making a declaration of this kind, the Minister must be satisfied
that it is desirable that this Act should apply in relation to the organization.
Item 15 - Subsection 248U(3)
Item 15 repeals and substitutes subsection 248U(3) of the Act to modernise and clarify
the circumstances in which regulations may be made to extend the provisions of
Part XIA of the Act, relating to performers' protections, to a foreign country. Under the
proposed new subsection 248U(3), in order for regulations to be made applying a
provision of Part XIA in relation to a foreign country, either:
(a) the country must be a party to an international agreement specified in the
regulations, or
61
(b) the Minister must be satisfied that adequate protection is or will be given under
the law of that country to performers in performances relevant to Part XIA that
are protected under the Act.
Items 16 to 18 - Section 248V
Items 16 to 18 make amendments to modernise the provisions in section 248V relating
to the making of regulations that restrict the application of performers' protections in
Part XIA of the Act to non-resident performers who were or are citizens or nationals of
foreign countries that do not give adequate protection to Australian performances.
Currently, under section 248V the Governor-General is required to have regard to the
nature and extent of the lack of protection for Australian performances in making
regulations for the purposes of this section in relation to a foreign country.
Under the proposed amendments to section 248V, before regulations are made by the
Governor-General for the purposes of the section, the onus is upon the Minister to be
satisfied that the law of the foreign country does not give adequate protection to
Australian performances and have regard to the nature and extent of that lack of
protection.
Item 19 - Application of Amendments
Item 19 is included to ensure that the amendments made by Part 2 of Schedule 3 do not
result in any unintended consequences.
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