COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) 1991 NO. 452

Commonwealth Numbered Regulations - Explanatory Statements

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COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) 1991 NO. 452

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 452

Issued by the Authority of the Attorney-General

Section 249 of the Copyright Act 1968 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

Amendments have been made to the Copyright (International Protection) Regulations (the Regulations) to extend protection under the Act to performers who are nationals or residents of other specified countries, or whose performances take place in such countries or are incorporated in a sound recording or a broadcast by a national of those countries. These amendments, together with those to protect foreign broadcasts (Statutory Rules No. ) will enable the Minister for Foreign Affairs and Trade to seek Executive Council approval for Australia to accede to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention).

Subsection 248U(1) provides that the regulations may apply any of the provisions of Part XIA (relating to performers' protection) specified in the regulations to a foreign country so specified, so that the provisions apply to performances given in that country in like manner as those provisions apply in relation to performances given in Australia, and to persons who are citizens, nationals or residents of that country in like manner as those provisions apply to persons who are citizens, nationals or residents of Australia.

Subsection 248U(2) further provides, in paragraph (b), that regulations applying a provision of Part XIA in relation to a foreign country may apply the provision either generally or in relation to such classes of performances, or other classes of cases, as are specified in the regulations. The classes of performances to which the regulations will also apply are those incorporated in a sound recording or a broadcast itself made in or by a national of a foreign country and protected under the regulations.

Subsection 248U(3) provides that regulations shall not be made applying any of the provisions of Part XIA in relation to a foreign country that is not a party to a Convention relating to the protection of performers to which Australia is also a party unless the Governor-General is satisfied that, in respect of the performances to which those provisions relate, provision has been or will be made under the law of that country under which adequate protection is or will be given to a performer whose performances are protected under the Act.

The amending regulations will extend protection to a performer:

(a) where the performer is a citizen, a national or a resident of a country which is a member of the Rome Convention;

(b) where the performance is given in a Rome Convention country;

(d) where the performance is incorporated in a broadcast by a broadcasting organisation with its headquarters in a Rome Convention country from which the broadcast was made.

Australia is not as yet a member of the Rome Convention which is the only relevant Convention to which subsection 248U(3) refers. Article 2 of the Rome Convention imposes an obligation of providing national treatment on all member countries, ie, a member country must provide to nationals of another member country, under its domestic law, the same protection as is afforded to its own nationals, including the same minimum protection specifically guaranteed by the Convention. These amending regulations, together with the amending regulations to protect foreign broadcasts (Statutory Rules No. ), would satisfy Australia's obligation to provide national treatment upon acceding to the Convention. Australia already provides national treatment in relation to makers of sound recordings from Rome Convention countries. Because of the obligation on each member country to provide national treatment on becoming a member of the Convention, to which it is proposed Australia will accede, the Governor-General is satisfied, in accordance with the provisions of subsection 248U(3) of the Act, that adequate protection will be given to Australian performances in those countries set out in the Schedule to the regulations covered by Statutory Rules No. .

Details of the regulations are at Attachment A.

[91R026]

ATTACHMENT A

DETAILS DETAILS OF THE COPYRIGHT (INTERNATIONAL PROTECTION)

REGULATIONS (AMENDMENT) (THE REGULATIONS)

NOTES ON CLAUSES

Regulation 1: Commencement

This regulation provides for the regulations to commence on 2 January 1992.

Regulation 2: Amendment

This regulation provides for the Copyright (International Protection) Regulations to be amended as set out in these Regulations.

Regulation 3: Interpretation

This regulation amends regulation 3 of the Regulations. The definition of "at a material time" is amended by adding a provision extending the definition, in relation to performances, to mean the time when the performance was given.

This regulation will also insert a new definition of "performance" which will mean a performance of a kind referred to in paragraph (a), (b), (c), (d) or (e) of the definition of 'performance' in subsection 248A(1) of the Act but does not include a performance of a kind referred to in subsection 248A(2) of the Act.

Regulation 4: Application of Act in relation to performances

A new regulation 4A is inserted to apply the provisions of the Act to foreign performances, subject to a new regulation 10B, in the following circumstances:

(a) where the performance takes place in a country referred to in Part IV of Schedule 1 (ie, a Rome Convention country);

(b) where the performer is a citizen, a national or a resident of a country which is a member of the Rome Convention;

(c) where the performance is incorporated in a sound recording of which the maker is a national of a Rome Convention country, or which was made in a Rome Convention country; or

(d) where the performance is incorporated in a broadcast from a Rome Convention country by a broadcaster whose headquarters are in that country.

Regulation 5: Application of the Act in relation to performances

A new regulation 10B is inserted which provides that no rights arising under regulation 4A in relation to a performance subsist in Australia before the commencement of this regulation.

Regulation 6: Modification of application of provisions of the Act to performances

A new subregulation 13(1) is inserted which provides that if a person has, at any time before the commencement of this regulation, taken action by which he or she has incurred expenditure or liability in connection with the doing of an act in relation to a performance in a manner that at the time was lawful, or for the purpose of or with a view to the doing of an act in relation to a performance at a time when the doing of the act would, but for the making of this regulation, have been lawful, nothing in the Principal Regulations diminishes or prejudices any right or interest arising in connection with the action that is subsisting and valuable immediately before the commencement of this regulation unless the performer of the performance agrees to pay reasonable compensation to the person.

A new subregulation 13(2) is inserted which provides that where a person takes action by which he or she has incurred expenditure or liability in the circumstances described above before an amendment of the Principal Regulations which includes the name of a country in Part IV of Schedule 1, nothing in the Principal Regulations diminishes or prejudices any right or interest arising in connection with the action that is subsisting and valuable immediately before the commencement of the amendment unless the performer of the performance agrees to pay reasonable compensation to the person.

A new subregulation 13(3) is inserted which provides that for the purposes of subregulation 13(2), if Part IV of Schedule 1 is remade, and on the remaking, the name of a country is included in the Part where immediately before the remaking, the name of the country was not included in Part IV, then the remaking of the Part is taken to be an amendment of the Principal Regulations that inserts the name of the country in Part IV.