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2004
THE PARLIAMENT
OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
COPYRIGHT
LEGISLATION AMENDMENT BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Attorney-General,
the Honourable Philip Ruddock MP)
COPYRIGHT LEGISLATION AMENDMENT BILL
2004
GENERAL OUTLINE
The purpose of the Bill is to make
various minor and clarifying amendments to the Copyright Act 1968 (the
Act) and the US Free Trade Agreement Implementation Act 2004 (the
USFTAI Act). The amendments included in the Bill arise from consultations with
key stakeholders on the amendments made to the Act by the USFTAI Act and on
transitional provisions of the USFTAI Act relating to the extension of the term
of copyright protection. Passage of the Bill will also ensure that Australia
fully complies with its obligations under the Australia-United States Free Trade
Agreement (AUSFTA).
In addition to amendments to items of the USFTAI
Act relating to the extension of the term of copyright protection, the Bill also
makes a number of amendments to provisions of the Act relating to criminal
offences, presumptions, the exception to the reproduction right, and remedies
available against carriage service providers.
First, the Bill
amends the Act to broaden the scope of some criminal offence provisions so that
a prosecution is not required to establish that a person committed those
offences ‘with the intention of obtaining a commercial advantage or
profit’ in addition to ‘by way of trade’. The effect of this
amendment will be to broaden the scope of the offences to criminalise activity
that occurs outside the trade context.
The Bill also clarifies the
scope of the offence in paragraph 132(1)(a) of the Act to make it clear that the
offences regime applies to the making of infringing copies with the intention of
obtaining a commercial advantage or profit. This further strengthens the
current offences regime in targeting activity such as ‘business end user
piracy’.
The Bill also amends criminal and civil presumption
provisions in the Act to confirm that prima facie recognition of a person or
corporation named in a label on a record or its container as the maker of the
recording or the owner of the recording copyright does not imply that the person
or corporation is the only maker or owner.
The Bill will also narrow the
scope of the incidental copies exception to temporary copies made as a necessary
part of the technical process of using a copy of a work or other subject matter.
The Bill provides that the exception is limited to ‘temporary’
copies made as a ‘necessary’ part of using a copy of a work or other
subject-matter. It ensures that the exception will not apply if the temporary
copy is made from an infringing copy or, if the copy is made in another country,
would be an infringing copy if it had been made in Australia. In addition, the
exception will not apply where the temporary copy results from a use that
infringes copyright. Nor will it extend to further uses of the temporary copy
beyond the original technical process in which it was made.
The Bill
will also clarify provisions that limit the remedies available against carriage
service providers. The Act will be amended by deleting the definition of
‘financial benefit’ and the ‘knowledge’ clauses. In
place of the financial benefit definition,
there will be a list of factors for a court to take into account in
determining whether a financial benefit is directly attributable to an
infringing activity.
A further offence is included in Part VAA of the
Act to criminalise activity involving the use of an encoded broadcast for
commercial purposes where a person has received the broadcast from another
person who has accessed the broadcast without authorisation.
Finally,
the Bill will amend the USFTAI Act to place a time limit of two years on the
application of the transitional provisions relating to the extension of the term
of copyright protection.
FINANCIAL IMPACT STATEMENT
The proposed amendments are expected to have no impact on Commonwealth expenditure or revenue.
NOTES ON CLAUSES
Clause 1 Short title
This clause is a formal provision that provides for the Bill, when enacted, to be cited as the Copyright Legislation Amendment Act 2004.
Clause 2 Commencement
Clause 2 provides for the commencement of the provisions of the Bill. It does so by reference to a table set out in subclause 2(1). Item 1 of the table provides that sections 1 to 3, and any other provisions not otherwise specifically referred to, commence on the day on which the Act receives the Royal Assent.
Item 2 of the table provides that Schedule 1 of the Act is to commence on the later of (a) the start of the day on which the Act receives the Royal Assent, and (b) immediately after the commencement of the provisions covered by table item 2 in the table in section 2 of the USFTAI Act. Under that table item, commencement occurs on the later of 1 January 2005 or the day on which the AUSFTA done at Washington DC on 18 May 2004 comes into force for Australia. However the provisions do not commence if the AUSFTA does not come into force.
Subclause 2(2) provides that column 3 of the table in subclause 2(1) may contain additional information that may be printed with the Act but such information is not part of the operative provisions of the Act.
Clause 3 Schedule(s)
By virtue of this clause, the provisions in the Acts specified in the
Schedule are amended or repealed as set out in the Schedule and other items in
the Schedule have effect according to their terms.
Schedule 1—Amendments
Copyright Act 1968
Item 1 Subsection
43B(1)
This item amends subsection 43B(1) by omitting the words
“making of a reproduction” and replacing them with “making of
a temporary reproduction”. The purpose of the amendment is to limit the
exception to a temporary reproduction.
Item 2 Subsection 43B(1)
This item amends subsection 43B(1) by omitting the words “made
as part” and replacing them with “made as a necessary part”.
The purpose of the amendment is to further limit the exception to temporary
reproductions incidentally made as a necessary part of a technical process of
using a copy of the work.
Item 3 Subsection 43B(2)
This
item repeals existing subsection 43B(2) and replaces it with a provision that
effectively incorporates the current exclusion of a reproduction made from an
infringing copy of the work and adds extra exclusions. New sub-paragraph
43B(2)(a)(i) provides that the exception in subsection 43B(1) does not apply if
the temporary reproduction is made from an infringing copy of the work.
Acknowledging that some temporary reproductions will be made from infringing
copies of works outside Australia that are accessed online by a person in
Australia, new sub-paragraph 43B(2)(a)(ii) provides that the exception also does
not apply to a copy of the work where the copy is made in another country and
would be an infringing copy if the person who made the copy had done so in
Australia. New paragraph 43B(2)(b) provides that the exception does not apply
to the making of a temporary reproduction of a work as a necessary part of a
technical process of using a copy of the work if that use constitutes an
infringement of the copyright in the work.
The item also inserts new
subsection 43B(3) which further limits the exception in subsection (1). It
provides that the temporary reproduction exception does not apply to any
subsequent use of a temporary reproduction of a work other than as part of the
technical process in which the temporary reproduction was made.
Item
4 Subsection 111B(1)
This item amends subsection 111B(1) by omitting
the words “making of a reproduction” and replacing them with
“making of a temporary copy”. The purpose of the amendment is to
limit the exception to a temporary copy.
Item 5 Subsection
111B(1)
This item amends subsection 111B(1) by omitting ‘the
reproduction’ and replacing it with ‘the temporary copy’ to
make it consistent with the amendment in item 4.
Item 6 Subsection
111B(1)
This item amends subsection 111B(1) by omitting the words
“made as part” and replacing them with “made as a necessary
part”. The purpose of the amendment is to further limit the exception to
temporary copies incidentally made as a necessary part of a technical process of
using a copy of the subject-matter.
Item 7 Subsection
111B(2)
This item repeals existing subsection 111B(2) and replaces it
with a provision that effectively incorporates the current exclusion of a
temporary copy made from an infringing copy of the subject-matter and adds an
extra exclusion. New sub-paragraph 111B(2)(a)(i) provides that the exception in
subsection 111B(1) does not apply if the temporary copy is made from an
infringing copy of the subject-matter. Acknowledging that some temporary copies
will be made from infringing copies of subject-matter outside Australia that are
accessed online by a person in Australia, new sub-paragraph 111B(2)(a)(ii)
provides that the exception also does not apply to a copy of the subject-matter
where the copy is made in another country and would be an infringing copy if the
person who had made the copy had done so in Australia. New paragraph 111B(2)(b)
provides that the exception does not apply to the making of a temporary copy of
the subject-matter as a necessary part of a technical process of using a copy of
the subject-matter if that use constitutes an infringement of the copyright in
the subject-matter.
The item also inserts new subsection 111B(3) which
further limits the exception in subsection 111B(1). It provides that the
temporary copy exception does not apply to any subsequent use of a temporary
copy of a work other than as part of the technical process in which the
temporary copy was made.
Item 8 Application of items 1 to
7
This item provides that the amendments made by items 1 to 7 apply
in respect of acts done after the commencement date for the item specified in
subclause 2(1) of the Bill.
Item 9 Section 116AB (definition of
financial benefit)
This item repeals the definition of
financial benefit in section 116AB as a consequence of the amendment made
by item 14.
Item 10 Subsection 116AH(1) (table item 4, condition
1)
This item omits the second sentence of condition 1 in table item 4
(Category C activity) as a consequence of the amendment made by item 14.
Item 11 Subsection 116AH(1)(table
item 4, after condition 2)
This item inserts a new condition into
table item 4 which sets out the conditions that must be met by a carriage
service provider in order to qualify for the limitations on remedies set out in
subsections 116AG(2) and (4). These conditions are in addition to the general
conditions set out in table item 1.
Under new condition 2A the carriage
service provider must act expeditiously to remove or disable access to copyright
material residing on its system or network if it becomes aware that the material
is infringing or becomes aware of facts or circumstances that make it apparent
that the material is likely to be infringing.
The item also states that
in an action relating to whether or not the carriage service provider qualifies
for the limitations on remedies available against it under Division 2AA, the
carriage service provider does not bear any onus of proving a matter referring
to its awareness of the infringing material as specified in paragraphs (a) or
(b). This has been included as a carriage service provider would in most cases
be unable to tender evidence to support a proposition that it did not know of,
or was not aware of, the infringing activity. It is a matter for the copyright
owner to establish, on the balance of probabilities, that the carriage service
provider had the required state of knowledge before it was required to act
expeditiously to remove or disable access. Once this knowledge is established,
the onus reverts to the carriage service provider who must establish that it
acted expeditiously to take down the relevant material.
Item
12 Subsection 116AH(1) (table item 5, condition 1)
This item
omits the second sentence of condition 1 in table item 5 (Category D activity)
as a consequence of the amendment made by item 14.
Item
13 Subsection 116AH(1)(table item 5, after condition 2)
This
item inserts a new condition into table item 5 which sets out the conditions
that must be met by a carriage service provider in order to qualify for the
limitations on remedies set out in subsections 116AG(2) and (4). These
conditions are in addition to the general conditions set out in table item 1.
Under new condition 2A the carriage service provider must act
expeditiously to remove or disable access to a reference residing on its system
or network if it becomes aware that the copyright material to which it refers is
infringing or becomes aware of facts or circumstances that make it apparent that
the copyright material to which it refers is likely to be infringing.
The item also states that in an action relating to whether or not the
carriage service provider qualifies for the limitations on remedies available
against it under Division 2AA, the carriage service provider does not bear any
onus of proving a matter referring to its awareness of the infringing material
as specified in paragraphs (a) or (b). This has been included as a carriage
service provider would in most cases be unable to tender evidence to support a
proposition that it did not know of, or was not aware of, the infringing
activity. It is a matter for the copyright owner to establish, on the balance
of probabilities, that the carriage service provider had the required state of
knowledge before it was required to act expeditiously to remove or disable
access. Once this knowledge is established, the onus reverts to the carriage
service provider who must establish that it acted expeditiously to take down the
relevant material.
Item 14 At the end of section
116AH
This item inserts new subsections to provide further guidance
in relation to condition 1 in table item 4 (Category C activity) and table item
5 (Category D activity) in subsection 116AH(1).
New subsection 116AH(3)
provides guidance to a court in determining whether a financial benefit is
otherwise directly attributable to the infringing activity for the purposes of
condition 1 in table item 4 or 5 in subsection 116AH(1). The court may have
regard to any matters it considers relevant but must have regard to the 2
matters specified. The first matter is industry practice in relation to the
charging of services by carriage service providers, including charging based on
level of activity. The second matter is whether the financial benefit was
greater than the benefit that would usually result from charging in accordance
with accepted industry practice.
New subsection
116AH(4) provides that an act done by a carriage service provider in complying
with the prescribed procedure referred to in condition 3 in table item 4
(Category C activity) does not constitute a failure to satisfy condition 2A in
that item. For example, the provision makes it clear that a carriage service
provider that restores copyright material in accordance with the prescribed
procedure referred to in condition 3 does not, in doing so, fail to satisfy
condition 2A.
Item 15 At the end of section 130
This item inserts a new
subsection 130(3) to confirm that prima facie recognition of a person or
corporation named in a label on a record or its container as the maker of the
recording or the owner of the recording copyright does not imply that the person
or corporation is the only maker or owner. It is a widespread industry practice
to name the producer as the maker and copyright owner in such labels. The
USFTAI Act recognises performers as makers of their sound recordings and
provides for sharing of the copyright between the producer and the performers,
subject to any contractual arrangements. Accordingly, there may be recordings
in which the performers hold a share of the copyright, although this might not
be reflected in copyright ownership notices on records or their
containers.
Item 16 Application of item 15
This item
provides that item 15 applies in respect of sound recordings whether copies are
supplied to the public before or after the commencement date for the item
specified in subclause 2(1) of the Bill.
Item
17 Paragraph 132(1)(a)
This item inserts the phrase “or with
the intention of obtaining a commercial advantage or profit” after the
words “or hire” in paragraph 132(1)(a) of the Act. Under the
amended paragraph, a person will be guilty of an offence if they make an article
for sale or hire or with the intention of obtaining a commercial advantage or
profit if they know, or ought reasonably to know, the article to be an
infringing copy of the work. This will broaden the scope of the offence to
cover the making of articles for certain commercial purposes in addition to
those for sale or hire. The purpose of the provision is to clarify that the
offences regime in section 132 applies to all forms of activity referred to as
‘business end-user piracy’.
As with amendments made to
offences in section 132 by the USFTAI Act, the definition of
‘profit’ in subsection 132(9) applies to that term in paragraph
132(1)(a) as amended.
Item 18 Paragraphs 132(1)(b) and
(c)
This item replaces “and” with “or” in
paragraphs 132(1)(b) and (c). The purpose of this amendment is to address
unintended consequences raised by amendments in the USFTAI Act which had the
effect of narrowing the scope of the offences in those paragraphs. The effect
of the amendment will be to broaden the scope of these offences to ensure that
they apply to commercial infringements that do not occur in a trade context.
Item 19 Subparagraph
132(1)(d)(i)
This item replaces “and” with
“or” in subparagraph 132(1)(d)(i). The purpose of this amendment is
to address unintended consequences raised by amendments in the USFTAI Act which
had the effect of narrowing the scope of the offence in that subparagraph. The
effect of the amendment will be to broaden the scope of this offence to ensure
that it applies to commercial infringements that do not occur in a trade
context.
Item 20 Subparagraph 132(1)(d)(ii)
This item
replaces “and” with “or” in subparagraph 132(1)(d)(ii).
The purpose of this amendment is to address unintended consequences raised by
amendments in the USFTAI Act which had the effect of narrowing the scope of the
offence in that subparagraph. The effect of the amendment will be to broaden
the scope of this offence to ensure that it applies to commercial infringements
that do not occur in a trade context.
Item
21 Subparagraph 132(1)(d)(iii)
This item replaces “and”
with “or” in subparagraph 132(1)(d)(iii). The purpose of this
amendment is to address unintended consequences raised by amendments in the
USFTAI Act which had the effect of narrowing the scope of the offence in that
subparagraph. The effect of the amendment will be to broaden the scope of this
offence to ensure that it applies to commercial infringements that do not occur
in a trade context.
Item 22 Paragraph 132(2)(a)
This item
replaces “and” with “or” in paragraph 132(2)(a). The
purpose of this amendment is to address unintended consequences raised by
amendments in the USFTAI Act which had the effect of narrowing the scope of the
offence in that paragraph. The effect of the amendment will be to broaden the
scope of this offence to ensure that it applies to commercial infringements that
do not occur in a trade context.
Item 23 Paragraph
132(2A)(a)
This item replaces “and” with “or”
in paragraph 132(2A)(a). The purpose of this amendment is to address unintended
consequences raised by amendments in the USFTAI Act which had the effect of
narrowing the scope of the offence in that paragraph. The effect of the
amendment will be to broaden the scope of this offence to ensure that it applies
to commercial infringements that do not occur in a trade context.
Item
24 Paragraph 132(2A)(b)
This item replaces “and” with
“or” in paragraph 132(2A)(b). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offence in that paragraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial infringements that do not occur in a trade
context.
Item 25 Paragraph 132(2A)(c)
This item replaces
“and” with “or” in paragraph 132(2A)(c). The purpose of
this amendment is to address unintended consequences raised by amendments in the
USFTAI Act which had the effect of narrowing the scope of the offence in that
paragraph. The effect of the amendment will be to broaden the scope of this
offence to ensure that it applies to commercial infringements that do not occur
in a trade context.
Item 26 Subparagraphs 132(5D)(b)(i) and
(ii)
This item replaces “and” with “or” in
subparagraphs 132(5D)(b)(i) and (ii). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offences in those subparagraphs. The
effect of the amendment will be to broaden the scope of these offences to ensure
that they apply to commercial infringements that do not occur in a trade
context.
Item 27 Subparagraph
132(5DA)(b)(i)
This item replaces “and” with
“or” in subparagraph 132(5DA)(b)(i). The purpose of this amendment
is to address unintended consequences raised by amendments in the USFTAI Act
which had the effect of narrowing the scope of the offence in that subparagraph.
The effect of the amendment will be to broaden the scope of this offence to
ensure that that it applies to commercial infringements that do not occur in a
trade context.
Item 28 Subparagraph 132(5DA)(b)(ii)
This
item replaces “trading and” with “trading or” in
subparagraph 132(5DA)(b)(ii). The purpose of this amendment is to address
unintended consequences raised by amendments in the USFTAI Act which had the
effect of narrowing the scope of the offence in that subparagraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial infringements that do not occur in a trade
context.
Item 29 Application of items 17 to 28
This item
provides that the amendments to the offences referred to in items 17 to 28 apply
in respect of acts done after the commencement date for the item specified in
subclause 2(1) of the Bill. This ensures that the offences as broadened do not
operate retrospectively.
Item 30 At the end of
section 132B
This item inserts a new subsection 132B(3) to
confirm that prima facie recognition of a person or corporation named in a label
on a record or its container as the maker of the recording or the owner of the
recording copyright does not imply that the person or corporation is the only
maker or owner. It is a widespread industry practice to name the producer as
the maker and copyright owner in such labels. The USFTAI Act recognises
performers as makers of their sound recordings and provides for sharing of the
copyright between the producer and the performers, subject to any contractual
arrangements. Accordingly, there may be recordings in which the performers hold
a share of the copyright, although this might not be reflected in copyright
ownership notices on records or their containers.
Item 31 Application
of item 30
This item provides that item 30 applies in respect of
sound recordings whether copies are supplied to the public before or after the
commencement date referred to in subclause 2(1) of the Bill.
Item
32 Paragraph 135AS(1)(b)
This item replaces “and” with
“or” in paragraph 135AS(1)(b). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offence in that paragraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial activity involving a broadcast decoding device that does
not occur in a trade context.
Item 33 Paragraph
135AS(1)(c)
This item replaces “and” with
“or” in paragraph 135AS(1)(c). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offence in that paragraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial activity involving a broadcast decoding device that does
not occur in a trade context.
Item 34 Paragraph
135AS(1)(d)
This item replaces “and” with
“or” in paragraph 135AS(1)(d). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offence in that paragraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial activity involving a broadcast decoding device that does
not occur in a trade context.
Item 35 Subparagraph
135AS(1)(e)(i)
This item replaces “and” with
“or” in subparagraph 135AS(1)(e)(i). The purpose of this amendment
is to address unintended consequences raised by amendments in the USFTAI Act
which had the effect of narrowing the scope of the offence in that subparagraph.
The effect of the amendment will be to broaden the scope of this offence to
ensure that it applies to commercial activity involving a broadcast decoding
device that does not occur in a trade context.
Item 36 Subparagraph
135AS(1)(e)(ii)
This item inserts “or” after “for
trading” in subparagraph 135AS(1)(e)(ii). The purpose of this amendment
is to address unintended consequences raised by amendments in the USFTAI Act
which had the effect of narrowing the scope of the offence in that subparagraph.
The effect of the amendment will be to broaden the scope of this offence to
ensure that it applies to commercial activity involving a broadcast decoding
device that does not occur in a trade context.
Item 37 Subparagraph
135AS(1)(e)(iii)
This item replaces “and” with
“or” in subparagraph 135AS(1)(e)(iii). The purpose of this
amendment is to address unintended consequences raised by amendments in the
USFTAI Act which had the effect of narrowing the scope of the offence in that
subparagraph. The effect of the amendment will be to broaden the scope of this
offence to ensure that it applies to commercial activity involving a broadcast
decoding device that does not occur in a trade context.
Item
38 Paragraph 135AS(1A)(d)
This item replaces “and” with
“or” in paragraph 135AS(1A)(d). The purpose of this amendment is to
address unintended consequences raised by amendments in the USFTAI Act which had
the effect of narrowing the scope of the offence in that paragraph. The effect
of the amendment will be to broaden the scope of this offence to ensure that it
applies to commercial activity involving a broadcast decoding device that does
not occur in a trade context.
Item 39 After subsection
135AS(1B)
This item inserts a new subsection 135AS(1C) offence
relating to the use of an encoded broadcast that has been accessed without
authorisation. Under this new provision, a person will commit an offence where
a broadcast decoding device has been used to gain access to an encoded broadcast
made by a broadcaster; the access is gained without the authorisation of the
broadcaster; the person receives the broadcast that has been accessed by the
device; the person knows the broadcaster had not authorised the access to the
broadcast; and the person uses or authorises the use of, the broadcast by way of
trade or with the intention of obtaining a commercial advantage or profit.
The purpose of this offence is to ensure that the offences regime in
Part VAA of the Act criminalises activity involving the use of an encoded
broadcast for commercial purposes where a person has received the broadcast from
another person who has accessed the broadcast without authorisation. The person
who has accessed the broadcast without authorisation and distributed it is
likely to be committing the existing offence under subsection 135AS(1B) of the
Act.
As with amendments made to offences in section 135AS by the USFTAI
Act, the definition of ‘profit’ in section 135AL applies to that
term as used in paragraph 135AS(1C)(f).
Item 40 Subsection
135AS(4)
This item substitutes “(1B) or (1C)” for
“or (1B)”. The effect of this amendment is that a person who
contravenes subsection 135AS(1C) is guilty of an offence punishable on summary
conviction by a fine of not more than 550 penalty units and/or imprisonment for
not more than 5 years. This is the same penalty level for the offences in
subsections 135AS(1), (1A) and (1B).
Item 41 Application of items 32
to 40
This item provides that the amendments to the offences referred
to in items 32 to 40 apply in respect of acts done after the commencement date
for the item specified in subclause 2(1) of the Bill. This ensures that the
offences as broadened and new offences do not operate
retrospectively.
US Free Trade Agreement Implementation Act
2004
Item 42 Item 118 of Schedule 9
(heading)
This item amends the heading to item 118 so as to indicate
more clearly that the agreements coming within the scheme are confined to a
limited class.
Item 43 After paragraph 118(1)(c) of Schedule
9
This item inserts a new paragraph 118(1)(ca) in Schedule 9 to the
USFTAI Act. The effect of its insertion is that if an agreement is to come
within item 118(1), the act which is the subject or purpose of the agreement
must be intended to be done within 2 years from the US FTA commencement day. The
US FTA commencement day is defined in item 48 as the day on which the
Australia-US Free Trade Agreement (AUSFTA) enters into
force.
The broad effect of this amendment is to
restrict the operation of the transitional scheme for which item 118 provides to
acts agreed to be done in the 2 years following the entry into force of the
AUSFTA.
Item 44 Paragraphs 118(3)(a) and (4)(a) of Schedule
9
This item amends paragraphs 118(3)(a) and 4(a) of Schedule 9 to
omit “compensation that is reasonable in all of the circumstances”
and substitute “an amount of reasonable compensation”. This
amendment is consequential upon the clarifying, in item 45, of the meaning of
“compensation”.
Item 45 After subitem 118(4) of Schedule
9
This item inserts a new subitem 118(4A) in Schedule 9 to clarify
that compensation referred to in items 118 and 119 of Schedule 9 may only
include costs incurred by a person for the purposes of doing the act mentioned
in paragraph 118(1)(c) and those incurred, or that may be incurred, by the
person as a result of not being able to do that act.
In restricting the
subject of compensation to costs that have been incurred or may be incurred, the
amendment clarifies that compensation cannot take into account any profit
expected to have been made from doing the act, had the copyright owner not
objected to it.
Item 46 Subitem 118(6) of Schedule 9
This item amends subitem 118(6) of Schedule
9 by omitting “pay reasonable compensation” and substituting
“pay an amount of reasonable compensation”. This amendment is
consequential upon item 44.
Item 47 Paragraph 118(6)(a) of Schedule
9
This item inserts “and before the end of 2 years from the US
FTA commencement day” after “ceased to subsist” in paragraph
118(6)(a) of Schedule 9. This amendment is consequential on item 43 which
restricts the operation of the transitional scheme for which item 118 provides
to acts agreed to be done in the 2 years following the entry into force of the
AUSFTA.
Subitem 118(6) provides that where a copyright owner has not
notified a person under subitem 118(2) or paid them reasonable compensation, the
person can do the agreed act referred to in paragraph 118(1)(c) after copyright
would, but for the extension of the copyright term, have expired. As a result
of the amendment the act must, to avoid infringing copyright, be done before the
end of 2 years from the entry into force of the AUSFTA.
Item
48 Subitem 118(8) of Schedule 9
This item inserts a definition of
“US FTA commencement day” as used in paragraphs 118(1)(c) and
118(6)(a). It refers to the day on which the AUSFTA enters into force for
Australia.
Item 49 Subitem 119(1) of Schedule 9
This item
amends subitem 119(1) of Schedule 9 by omitting “under item 118 for the
determination of reasonable compensation” and substituting “under
item 118 of this Schedule for the determination of an amount of reasonable
compensation”. It is a formal amendment consequential upon the amendment
in item 44.
Item 50 Subitem 119(3) of Schedule 9
This item
amends subitem 119(3) of Schedule 9 by omitting “the amount of
compensation that it considers to be reasonable in all of the
circumstances” and substituting “an amount of reasonable
compensation”. It is consequential upon the amendment in item
44.
Item 51 At the end of subitem 119(3) of Schedule 9
This
item adds a note at the end of subitem 119(3) of Schedule 9. The note indicates
that the amount of compensation that can be determined by the Tribunal is
limited to that for certain costs, referred to in subitem 118(4A) inserted by
item 45.
Item 52 Item 132 of Schedule 9
(heading)
This item amends the heading to item 132 so as to indicate
more clearly that the agreements coming within the scheme are confined to a
limited class.
Item 53 After paragraph 132(1)(c) of Schedule
9
This item inserts a new paragraph 132(1)(ca) in Schedule 9. The
effect of its insertion is that if an agreement is to come within item 132(1),
the act which is the subject or purpose of the agreement must be intended to be
done within 2 years from the US FTA commencement day. The US FTA commencement
day is defined in item 55 as the day on which the AUSFTA enters into
force.
The broad effect of this amendment is to restrict the operation of
the transitional scheme for which item 132 provides to acts agreed to be done in
the 2 years following the entry into force of the AUSFTA.
Item 54
Paragraphs 132(3)(a) and (4)(a) of Schedule 9
This item amends
paragraphs 132(3)(a) and (4)(a) of Schedule 9 to omit “compensation that
is reasonable in all of the circumstances” and substitute “an amount
of reasonable compensation”. This amendment is consequential upon the
clarifying, in item 55, of the meaning of
“compensation”.
Item 55 After subitem 132(4) of Schedule
9
This item inserts a new subitem 132(4A) in Schedule 9 to clarify
that compensation referred to in items 132 and 133 of Schedule 9 may only
include costs incurred by a person for the purposes of doing the act mentioned
in paragraph 132(1)(c) and those incurred, or that may be incurred, by the
person as a result of not being able to do that act.
In restricting the
subject of compensation to costs that have been incurred or may be incurred, the
amendment clarifies that compensation cannot take into account any profit
expected to have been made from doing the act, had the copyright owner not
objected to it.
Item 56 Subitem 132(6) of Schedule 9
This
item amends subitem 132(6) of Schedule 9 by omitting “pay reasonable
compensation” and substituting “pay an amount of reasonable
compensation”. This amendment is consequential upon item
54.
Item 57 Paragraph 132(6)(a) of Schedule 9
This item
inserts “and before the end of 2 years from the US FTA commencement
day” after “ceased to subsist” in paragraph 132(6)(a) of
Schedule 9. This amendment is consequential on item 50 which restricts the
operation of the transitional scheme for which item 132 provides to acts agreed
to be done in the 2 years following the entry into force of the AUSFTA.
Subitem 132(6) provides that where a copyright owner has not notified a
person under subitem 132(2) or paid them reasonable compensation, the person can
do the agreed act referred to in paragraph 132(1)(c) after copyright would, but
for the extension of the copyright term, have expired. As a result of the
amendment the act must, to avoid infringing copyright, be done before the end of
2 years from the entry into force of the AUSFTA.
Item 58 Subitem
132(8) of Schedule 9
This item inserts a definition of “US FTA
commencement day” as used in paragraphs 132(1)(c) and 132(6)(a). It refers
to the day on which the AUSFTA enters into force for Australia.
Item
59 Subitem 133(1) of Schedule 9
This item amends subitem 133(1) of
Schedule 9 by omitting “under item 132 for the determination of reasonable
compensation” and substituting “under item 132 of this Schedule for
the determination of an amount of reasonable compensation”. It is a
formal amendment consequential upon the amendment in item
54.
Item 60 Subitem 133(3) of Schedule 9
This
item amends subitem 133(3) of Schedule 9 by omitting “the amount of
compensation that it considers to be reasonable in all of the
circumstances” and substituting “an amount of reasonable
compensation”. It is consequential upon the amendment in item
54.
Item 61 At the end of subitem 133(3) of Schedule 9
This
item adds a note at the end of subitem 133(3) of Schedule 9. The note indicates
that the amount of compensation that can be determined by the Tribunal is
limited to compensation for certain costs, referred to in subitem 132(4A)
inserted by item 55.