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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
COPYRIGHT AMENDMENT (DIGITAL AGENDA) BILL
1999
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments and New Clauses to be Moved on Behalf
of the Government
(Circulated by authority of the
Attorney-General,
the Honourable Daryl Williams AM QC
MP)
ISBN: 0642 43848X
COPYRIGHT AMENDMENT (DIGITAL AGENDA) BILL 1999
OUTLINE
The Copyright Amendment (Digital Agenda) Bill 1999 (the Bill) amends the Copyright Act 1968 (the Act) to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material available on the Internet and through new communications technologies.
The Digital Agenda Bill was introduced into the House of
Representatives on
2 September 1999. The Bill was
referred to the House of Representatives Standing Committee on Legal and
Constitutional Affairs for inquiry and report. After receiving some 100 written
submissions on the Bill and holding public hearings in Brisbane, Canberra and
Sydney, the Committee tabled its advisory report in the House of Representatives
on 6 December 1999. The advisory report made a number of
recommendations.
The Government amendments to the Bill aim to address the Committee’s recommendations, implement further changes resulting from consultation with interests, and implement necessary technical amendments.
FINANCIAL IMPACT STATEMENT
The amendments are expected to have minimal impact on Commonwealth expenditure or revenue.
SCHEDULE 1 - AMENDMENT TO THE COPYRIGHT ACT 1968
Amendment 1
1. Amendment 1 amends Schedule 1 of the Bill by omitting Item 8. This amendment is a consequence of the new definition of “technological protection measure” in Amendment 5.
Amendment 2
2. Amendment 2 amends Item 9 of Schedule 1 of the Bill by omitting “and” and substituting “or” at the end of subclause (a)(i) of the definition of “electronic rights management information”. This amendment extends the definition of “electronic rights management information” to information as described in both paragraphs (a) and (b) of the new definition. This meaning of “electronic rights management information” is consistent with Article 12(2) of the WIPO Copyright Treaty and Article 19(2) of the WIPO Performances and Phonograms Treaty.
Amendment 3
3. Amendment 3 amends Item 11 of Schedule 1 of the Bill by omitting the definition of “library”. This amendment, in conjunction with Amendments 6, 14 and 20, is intended to remove those elements of the Digital Agenda reforms that inserted a new definition of library and restore the existing definition of “library” in the Act.
Amendment 4
4. Amendment 4 amends Item 14 of Schedule 1 of the Bill by omitting from the definition of “reception equipment” the words “made available online or electronically transmitted” and substituting the words “that is communicated”. This amendment is intended to simplify the definition by referring to “communicate” rather than referring to the different elements of the communication right.
Amendment 5
5. Amendment 5 amends Schedule 1 of the Bill by inserting new Items 15A and 15B.
6. New Item 15A inserts a definition of “simulcasting” in s.10(1) of the Act. The term is defined as meaning simultaneously broadcasting a broadcasting service in both analog and digital form in accordance with the requirements of the Broadcasting Services Act 1992, or of any prescribed legislative provisions relating to digital broadcasting. The definition is intended to clarify the meaning of “simulcasting” for the purposes of clauses 47AA and 110C as provided by Amendments 14 and 25.
7. New Item 15B inserts a new definition of “technological protection measure” in s.10(1) of the Act. This new definition replaces the definition of “effective technological protection measure” which has been omitted from Item 8 of the Bill (see Amendment 1).
8. A technological protection measure means a device, product, or component incorporated into a process which, in the ordinary course of its operation, is designed to prevent or inhibit the infringement of copyright in a work or other subject-matter by either or both of two means: by a copy control mechanism; or by ensuring that access to the work or other subject-matter is available solely by an access code or process with the authority of the copyright owner or licensee.
Amendment 6
9. Amendment 6 amends Item 22 of Schedule 1 of the Bill by omitting the Item, which would have removed s.18 from the Act. This amendment is intended to restore the existing definition of “library” in the Act.
Amendment 7
10. Amendment 7 amends Item 23 of the Bill by inserting a legislative note to subclause 21(1A). The legislative note provides that the conversion of a work into a digital or other electronic machine-readable form includes the first digitisation of the work. This note is intended to clarify that the conversion of a work from hardcopy to digital form is included in the right of reproduction. A corresponding amendment is made to Item 25 in relation to sound recordings and cinematograph films (see Amendment 10).
Amendment 8
11. Amendment 8 amends Item 25 of the Bill by replacing the words “a process of” with the words “any process, including” in paragraph (5)(a) of Item 25. For the purposes of technology neutrality, this amendment has the effect of ensuring that new s.21(5) will apply to a reproduction of a computer program from source code to object code by a process other than compilation. It is intended that if an object code version of a program is derived from the source code by a process of compilation, or any other process, the computer program will be deemed to have been reproduced.
Amendment 9
12. Amendment 9 amends Item 25 of the Bill by replacing the words “a process of” with the words “any process, including” in paragraph (5)(b) of Item 25. This amendment has a similar effect to Amendment 8, but applies to the derivation of a source code version from an object code version of a computer program.
Amendment 10
13. Amendment 10 amends Item 25 of the Bill by inserting a legislative note to subclause 21(6). The legislative note provides that the conversion of a sound recording or cinematograph film into a digital or other electronic machine-readable form includes the first digitisation of the sound recording or cinematograph film. This note is intended to clarify that a conversion from analog to digital form is included as a sub-set of the copying right. A corresponding amendment is made to Item 23 in relation to works (see Amendment 7).
Amendment 11
14. Amendment 11 amends Item 42 of Schedule 1 of the Bill by omitting clause 39B (Communication by use of facilities provided by carriers or carriage service providers) and replacing it with a new clause 39B (Communication by use of certain facilities).
15. New clause 39B has the effect of expressly limiting the authorisation liability of persons who provide facilities for the making of, or facilitating the making of, communications. The clause provides that such persons are not taken to have authorised the infringement of copyright in a work merely because another person has used the facilities to engage in copyright infringement.
16. New clause 39B is intended to encompass the provision of facilities by digital storage service providers in addition to carriers and carriage service providers. A corresponding amendment in respect of audio-visual items is provided to clause 112E by Amendment 26.
Amendment 12
17. Amendment 12 amends Schedule 1 of the Bill by inserting new Items 42A, 42B, 42C, and 42D.
18. New Item 42A amends s.40(2) of the Act by omitting the word “copying” and substituting the word “reproducing”. This item is a consequence of the replacement of the term “copy” in relation to works, throughout the Bill with the term “reproduction”.
19. New Item 42B amends s.40(2)(e) of the Act by omitting the word “copied” and substituting the word “reproduced”. This item is a consequence of the replacement of the term “copy”, throughout the Bill, with the term “reproduction”.
20. New Item 42C amends s.40(3) of the Act by omitting the word “copying” and substituting the word “reproducing”. This item is a consequence of the replacement of the term “copy” throughout the Bill, with the term “reproduction”.
21. New Item 42D amends s.40(4) of the Act by repealing the subsection and inserting a new subclause 40(4). The effect of this amendment is to replace all references to “copy” in the subsection with the term “reproduction”.
Amendment 13
22. Amendment 13 amends Item 46 of Schedule 1 of the Bill by omitting the words “wireless telegraphy apparatus” from s.46 of the Act and substituting the words “reception equipment”. This is consistent with the new definition of “reception equipment” as provided by Item 14 of the Bill.
Amendment 14
23. Amendment 14 amends Schedule 1 of the Bill by inserting, after Item 46, proposed new Items 46A, 46B, 46C, 46D, 46E, 46F, 46G, 46H and 46I.
24. New Item 46A inserts a new subclause 47(7) which provides that for the purposes of this section, “broadcasting” does not include simulcasting. This amendment is a consequence of the introduction of the exception to allow the copying of works for the purposes of simulcasting as provided by new Item 46B.
25. New Item 46B inserts a new clause 47AA (Reproduction for the purpose of simulcasting). The new clause is intended to ensure that broadcasters who are required to simulcast under Schedules 2 and 4 of the Broadcasting Services Act 1992, or future digital broadcasting legislation, do not infringe copyright in the underlying works included in a film or sound recording where a copy of the film or sound recording is made solely for the purposes of simulcasting in digital form.
26. Subclause 47AA(1) provides a specific exception from infringement for reproducing a literary, dramatic or musical work, or an adaptation of such a work, where the broadcast of the literary, dramatic or musical work, or an adaptation of such a work, would not be an infringement, but the making of a sound recording or a cinematograph film of the work or adaptation would be an infringement. The exception is limited to copies made solely for the purposes of simulcasting as required by the Broadcasting Services Act 1992 or future digital broadcasting legislation.
27. Subclause 47AA(2) provides that the exception in subclause 47AA(1) does not apply if the copy of the film or sound recording is used for a purpose other than the non-infringing simulcast of the film or sound recording, or the further copying of the film or sound recording for the purposes of such simulcasting.
28. Subclause 47AA(3) provides that the exception in subclause 47AA(1) does not apply unless all copies of the film or sound recording are destroyed by the date specified in the regulations. This amendment is intended to ensure that copies made for the purposes of simulcasting must be destroyed after the legislative requirement to simulcast has ended.
29. Subclause 47AA(4) provides that the regulations may prescribe different relevant dates in relation to different classes of films or sound recordings. This amendment is intended to cover the situation if simulcasting is required under different legislative regimes.
30. New Item 46C inserts a new clause 47AB (Meaning of computer program). New clause 47AB provides that for the purposes of the Division (Division 4A Part III), a computer program includes any literary work that is incorporated in, or associated with a computer program, and is essential to the effective operation of a function of that computer program.
31. In December 1999 the Act was amended to introduce a new Division 4A of Part III specifying certain acts which would not constitute an infringement of copyright in computer programs. These specified purposes included the reproduction of computer programs in order to correct errors, for the purposes of security testing, and in order to make interoperable products.
32. On 30 September 1999 the High Court handed down its decision in Data Access Corporation v Powerflex Services Pty Ltd & Ors [1999] HCA 49, which included a finding that a compression table in a computer program was a literary work. The definition of “literary work” in the Act includes:
“a table, or computation, expressed in words, figures or symbols (whether or not in visible form)”.
33. The High Court held that the compression table contained in the Dataflex program was a table expressed in figures and symbols, and therefore fell squarely within the statutory definition of a “literary work”. As the table was original, and resulted from the exercise of substantial skill and judgement, it constituted an original literary work for the purposes of the Act.
34. Many computer programs rely on tables or compilations such as the Huffman compression table incorporated in the Dataflex system. Indeed, such tables or compilations may be incorporated in or associated with a computer program to the extent that they become essential to the effective performance of the functions of that computer program.
35. It was the Government’s intention in introducing Division 4A of Part III of the Act that the reproduction of computer programs be allowed for the limited purposes set out in that Division. The practical result of the decision in Data Access Corporation v Powerflex Services Pty Ltd & Ors is that any table or compilation associated with or incorporated in such computer programs may not be able to be reproduced. This could result in the computer program itself not being able to be reproduced under the limited exceptions.
36. New Item 46C will ensure that, wherever a person is permitted to reproduce a computer program for the purposes of normal use or study, making a back-up copy, making interoperable products, error correction or security testing, that person is also permitted to reproduce any literary work that is incorporated in, or associated with a computer program, which is essential to the effective operation of a function of that computer program.
37. New Item 46D omits the words “made in the course” from s.47B(1)(a) of the Act and substitutes the words “incidentally and automatically made as part of the technical process”. The effect of this amendment is to confirm that reference to the making of a reproduction in s.47B(1)(a) of the Act is to reproductions incidentally and automatically made as part of the technical process of running a program for normal use.
38. New Item 46E repeals s.47B(2)(b) of the Act and substitutes a new subclause 47B(2)(b). The effect of this amendment is that the exception in s.47B(1) of the Act does not apply contrary to an express direction or licence given by, or on behalf of, the owner of the copyright in the computer program to the owner or licensee of the copy from which the reproduction is made. This amendment is intended to reflect that some packaged software is licensed, and not sold, to consumers.
39. New Item 46F omits “made in the course” from s.47B(3)(a) of the Act and substitutes “incidentally and automatically made as part of the technical process”. The effect of this amendment is to confirm that the reference to the making of a reproduction in s.47B(3)(a) of the Act is to reproductions incidentally and automatically made as part of the technical process of running the program to study its operation.
40. New Item 46G inserts a new subclause 47B(5) which provides that, for the purposes of s.47B of the Act, reproduction in relation to a computer program does not include the derivation of a source code version of the program from the program in object code by any process, including a process of decompilation. A process such as decompilation is not necessary to reproduce a computer program in the course of running the program for the purposes for which it was designed, or for the purpose of studying the ideas behind the program. The new subclause therefore prevents persons from decompiling programs under the guise of reproducing programs for normal use or study.
41. New Item 46H omits the words “is not infringed by the making of a reproduction of the work” from s.47C(2) of the Act and substitutes the words “and in any work or other subject-matter held together with the program on the same computer system, is not infringed by the making of a reproduction of the computer program, other work, or subject matter”. The effect of this amendment is to extend s.47C(2) of the Act so that it covers copies of any works or subject-matter other than works that are held together with the computer program on the same system. This is intended to ensure that back-up copying of data such as referred to in s.47C(2)(b) of the Act is not impeded or inhibited by the risk of infringement of such works or other subject-matter.
42. New Item 46I inserts the words “or a person acting on behalf of the owner or licensee” after the word “licensee” in s47D(1)(b) of the Act. This amendment is intended to have the effect that if the owner or licensee of software engages a person to develop a new interoperable product on their behalf, this person may make a reproduction or adaptation of the original program for the purpose of obtaining information necessary to the process of making an interoperable product.
Amendment 15
43. Amendment 15 amends Item 56 of Schedule 1 of the Bill by omitting the word “is” from subclause 49(7A)(c)(i) and substituting the words “might be”. This is a technical amendment which reflects that the article or work might be subject to copyright protection under the Act.
Amendment 16
44. Amendment 16 omits Item 57 of Schedule 1 of the Bill by omitting subclause 49(9) and substituting a new subclause 49(9). This amendment is intended to reverse those elements of the Digital Agenda reforms that inserted a new definition of library, and to restore the existing definition of “library” in the Copyright Act 1968.
Amendment 17
45. Amendment 17 amends Item 59 of Schedule 1 of the Bill by omitting the words “the other” from s.50(1) of the Act and substituting the word “a”. The effect of this amendment is to limit the application of the exception to works held in the collection of the library network, rather than the particular library to which the request is made under s.50. This will allow the continued operation of inter-library supply services, such as SUPPLY 1.
Amendment 18
46. Amendment 18 omits Item 63 of Schedule 1 of the Bill and substitutes a new Item 63 which inserts a new subclause 50(4). New subclause 50(4) extends the exception allowing libraries or archives to reproduce copyright material for other libraries and archives to the communication of reproductions supplied under s.50 of the Act. This is a consequential amendment resulting from the extension of s.50 of the Act to the communication of works. Amendment 18 also inserts a new Item 63A which preserves the amendments provided under the omitted Item 63 of Schedule 1 of the Bill, and amends s.50(6) and (7) of the Act by replacing the word “copy” with the word “reproduction”. This item is a consequence of the replacement of the term “copy”, throughout the Bill, with the term “reproduction”.
Amendment 19
47. Amendment 19 amends Item 64 of Schedule 1 by omitting subclause 50(7B)(e)(ii) and substituting new subclauses 50(7B)(e)(ii), (iii) and (iv).
48. The new subclauses set out the operation of the “commercial availability test” which a library or archives must satisfy before supplying an article, work, or part of a work to another library or archives under s.50 of the Act. These subclauses apply only to works and articles in electronic form.
49. New subclause 50(7B)(e)(ii) provides that a library or archives may not supply an entire work, or more than a reasonable portion of a work in electronic form to another library or archives unless the authorised officer is satisfied that the entire work cannot be obtained within a reasonable time at an ordinary commercial price.
50. New subclause 50(7B)(e)(iii) provides that a library or archives may not supply a reasonable portion, or less than a reasonable portion, of a work in electronic form to another library or archives unless the authorised officer is satisfied that the portion of the work in electronic form, either separately or together with a reasonable amount of other material, is not available within a reasonable time at an ordinary commercial price. The requirement that the portion be available either separately, or together with a reasonable amount of other material, is designed to ensure that the “commercial availability test” will apply even if the precise portion of the work is not itself commercially available. The test will not have been met if the portion requested is commercially available together with a reasonable amount of additional text.
51. New subclause 50(7B)(e)(iv) provides that a library or archives may not supply the whole or part of an article in electronic form to another library or archives unless the authorised officer is satisfied that the article cannot be obtained on its own in electronic form within a reasonable time at an ordinary commercial price. The “commercial availability test” will not have been met unless the article is individually available, and not as part of a larger collection of articles, or as part of a periodical publication.
Amendment 20
52. Amendment 20 amends Item 64 of Schedule 1 of the Bill by inserting new subclause 50(7C). New subclause 50(7C) provides that the exception provided for inter-library copying between libraries and archives in s.50(4) of the Act does not apply to reproductions in electronic form unless any reproduction made for the purpose of supply held by the originating library or archives is destroyed.
53. The new subclause is intended to prevent libraries and archives from building up electronic collections of copyright material as a result of reproducing and communicating these works to other libraries and archives under the exceptions. It is consistent with a similar requirement in subclause 49(7A)(d) in relation to copying by libraries and archives for users.
Amendment 21
54. Amendment 21 omits Item 65 of Schedule 1 of the Bill and substitutes a new Item 65 which omits the word “copy” from s.50(8) of the Act and substitutes the words “reproduction and communication”. This is a technical amendment resulting from the extension of s.50 of the Act to the communication of works.
Amendment 22
55. Amendment 22 omits Item 66 of Schedule 1 of the Bill and substitutes a new Item 66 which inserts a new subclause 50(10). New subclause 50(10) provides that for the purposes of s.50 of the Act, supply includes supply by way of a communication. This amendment is a consequence of Amendment 3 which has the effect of restoring the existing definition of “library” in the Act.
Amendment 23
56. Amendment 23 omits Item 79 of Schedule 1 of the Bill and substitutes a new Item 79. New Item 79 repeals s.52(3) of the Act and substitutes new subclause 52(3). New subclause 52(3) extends the exception from liability in s.52(3) of the Act to a person who electronically transmits the work, or that part of the work (other than in a broadcast) for a fee payable to the person who made the transmission. This is a technical amendment which is designed to include all transmissions which were previously included under s.52(3) of the Act by reference to broadcasts and transmissions to subscribers of a diffusion service. In effect, the amendment is designed to preserve the operation of s.52(3) of the Act.
Amendment 24
57. Amendment 24 amends Schedule 1 of the Bill by inserting a new Item 90A. New Item 90A inserts a new subclause 107(7) which provides that for the purposes of s.107 of the Act, broadcasting does not include simulcasting. This amendment is a consequence of the introduction of the exception to allow the copying of analog films and sound recordings for the purposes of simulcasting as provided by Amendment 25.
Amendment 25
58. Amendment 25 amends Schedule 1 of the Bill by inserting a new Item 93A. New Item 93A inserts a new clause 110C (Making a copy of a sound recording or cinematograph film for the purposes of simulcasting). The new clause is intended to ensure that broadcasters who are required to simulcast under Schedules 2 and 4 of the Broadcasting Services Act 1992, or future digital broadcasting legislation, do not infringe copyright in a sound recording or cinematograph film where a copy of the sound recording or cinematograph film is made solely for the purposes of simulcasting in digital format. The exception only applies if the sound recording or cinematograph film from which the copy is made is in analog form.
59. Subclause 110C(1) provides a specific exception from infringement for copying a sound recording or cinematograph film where a broadcast of a sound recording or cinematograph film would not be an infringement, but the copying from an analog format to a digital format would be an infringement. The exception is limited to copies made solely for the purposes of simulcasting as required by the Broadcasting Services Act 1992 or future digital broadcasting legislation.
60. Subclause 110C(2) provides that the exception in subclause 110C(2) does not apply if the copy of the sound recording or cinematograph film is used for a purpose other than the non-infringing simulcast of the sound recording or cinematograph film, or further copying of the sound recording or cinematograph film for the purposes of further non-infringing simulcasting.
61. Subclause 110C(3) provides that the exception in subclause 110C(3) does not apply unless all copies of the film or sound recording are destroyed by the prescribed date. The effect of this amendment is that a broadcaster can continue to use a copy of a film or sound recording for the purpose of simulcasting whilst the requirements in clause 110C(3) remain in force.
62. Subclause 110C(4) provides that the regulations may prescribe different relevant dates in relation to different classes of films or sound recordings. This amendment is intended to cover the situation if simulcasting is required under different legislative regimes.
Amendment 26
63. Amendment 26 amends Item 95 of Schedule 1 of the Bill by omitting clause 112E (Communication by use of facilities provided by carriers or carriage service providers) and replacing it with a new clause (Communication by use of certain facilities).
64. New clause 112E has the effect of expressly limiting the authorisation liability of persons who provide facilities for the making of, or facilitating the making of, communications. The clause provides that such persons are not taken to have authorised the infringement of copyright in an audio-visual item merely because another person has used the facilities to engage in copyright infringement. This provision is similar to the amendment in Item 42 made by Amendment 11, however it deals with audio-visual items rather than works.
Amendment 27
65. Amendment 27 amends Schedule 1 of the Bill by inserting a new Item 96A. New Item 96A repeals s.115(4)(b) of the Act, and substitutes a new subclause 115(4)(b), which introduces an additional factor to which a court should have regard in assessing whether additional damages should be awarded for copyright infringement. The additional factor to be specifically considered is whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form.
Amendment 28
66. Amendment 28 amends Item 98 of Schedule 1 of the Bill by omitting the heading to clause 116A “Importing or making of circumvention device” and replacing it with “Importation, manufacture etc. of circumvention device and provision etc. of circumvention service”. This new heading more closely reflects the elements of the new provision.
Amendment 29
67. Amendment 29 amends Item 98 of Schedule 1 of the Bill by omitting the word “effective” from the term “effective technological protection measure” in s.116A(1)(a). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
Amendment 30
68. Amendment 30 amends Item 98 of Schedule 1 of the Bill by omitting the word “effective” from the term “effective technological protection measure” in s.116A(1)(b)(i). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
Amendment 31
69. Amendment 31 amends Item 98 of Schedule 1 of the Bill by inserting in subclause 116A(1)(b)(ii) after the words “sale or hire” the words “or otherwise promotes, advertises or markets”. This amendment extends the civil remedies contained in clause 116A to the promotion, advertising and marketing of circumvention devices.
Amendment 32
70. Amendment 32 amends Item 98 of Schedule 1 of the Bill by inserting in subclause 116A(1)(b)(v)(A) after the words “sale or hire”, the words “or otherwise promoting, advertising or marketing”. This amendment is similar in intent and effect to Amendment 31.
Amendment 33
71. Amendment 33 amends Item 98 of Schedule 1 of the Bill by inserting in subclause 116A(1)(b)(vii) after the word “provides”, the words “or by way of trade promotes, advertises or markets”. This amendment extends the civil remedies contained in clause 116A of the Act to the promotion, advertising and marketing of circumvention services.
Amendment 34
72. Amendment 34 amends Item 98 of Schedule 1 of the Bill by omitting the word “effective” from the term “effective technological protection measure” in s.116A(1)(vii). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
Amendment 35
73. Amendment 35 amends Item 98 of Schedule 1 of the Bill by omitting the word “effective” from the term “effective technological protection measure” in s.116A(1)(c). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
Amendment 36
74. Amendment 36 amends Item 98 of Schedule 1 of the Bill by omitting “49, 50” in subclause 116A(7)(b) and inserting “48A, 49, 50, 51A,”. The effect of this provision is to extend the permitted purpose exemptions which allow for the manufacture and dealing in circumvention devices and services for limited purposes. This will facilitate Parliamentary Libraries being able to use works for members of Parliament (under s.48A of the Act), where such material has been protected by a technological protection measure. Similarly, the amendment will facilitate libraries and archives being able to use works for preservation and other purposes (under clause 51A), where such material has been protected by a technological protection measure. For example, a circumvention device may be required to enable the reproduction and communication of a work for administrative purposes, as provided by clauses 51A(2) and (3). The amendment applies to civil actions for the manufacture and dealing in circumvention devices and services. A similar amendment is provided with respect to criminal offences by Amendment 41.
Amendment 37
75. Amendment 37 amends Item 98 of Schedule 1 of the Bill by inserting the words “without the permission of the owner or licensee of the copyright” after the word “subsists” in subclause 116C(1)(a). The effect of this amendment is to add an additional requirement to the acts proscribed in subclauses 116C(1)(a)(i)-(iii) that they take place without the permission of the owner or licensee of the copyright.
76. This amendment is intended to ensure that that clause 116C complies with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Phonograms and Performances Treaty which require that legislation implemented to govern electronic rights management information provide that such information not be altered or removed “without authority”, and that any importation, distribution or communication proscribed in legislation be “without authority”. A similar amendment is made to Item 100 in respect of criminal offences contained in the Bill by Amendment 41.
Amendment 38
77. Amendment 38 amends Item 98 of Schedule 1 of the Bill by omitting the words “removal or alteration” from subclause 116C(1)(d) and substituting the words “act referred to in paragraph (a) that was done by the person”. Amended subclause 116C(1)(d) provides that the defendant must have known that the importation, distribution and communication of a work or other subject-matter would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter. This amendment is intended to ensure that clause 116C complies with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Phonograms and Performances Treaty. A similar amendment is made to Item 100 by Amendment 41 in respect of the criminal offences contained in the Bill.
Amendment 39
78. Amendment 39 amends Item 98 of Schedule 1 of the Bill by omitting the words “removal or alteration” from subclause 116C(3)(b) and substituting the words “doing of the act”. This amendment is consequential to the amendment made by Amendment 38 above.
Amendment 40
79. Amendment 40 amends Item 99 of Schedule 1 of the Bill by omitting the item. This amendment is a consequence of the repeal of s.132(5A) of the Act (see Amendment 41).
Amendment 41
80. Amendment 41 amends Schedule 1 of the Bill by omitting the item and substituting a new Item 100.
81. New Item 100 repeals s.132(5A) of the Act and substitutes new subclauses 132(5A) - 132(5J). The repeal of s.132(5A) of the Act is a consequence of the extension of the meaning of ‘distribute’, for the purposes of the s.132 of the Act, to include ‘distribute by way of communication’ (see Amendment 44).
82. New subclauses 132(5A) - 132(5J) were previously contained in the Bill as subclauses 132(5B) - 132(5K). Amendment 41 re-numbers these subclauses as a consequence of the repeal of s.132(5A) of the Act. Amendment 41 also contains some amendments to subclauses 132(5A) - 132(5J) which did not appear in old subclauses 132(5B) - (5K).
83. Amendment 41 amends subclause 132(5A) (previously subclause 132(5B)) by inserting after the word “provide” the words “or by way of trade promote, advertise or market”. This amendment extends the criminal offences in subclause 132(5A) to the promotion, advertising and marketing of circumvention services. This amendment also amends the subclause by omitting the word “effective” from the term “effective technological protection measure” in subclause the old 132(5B). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
84. Amendment 41 amends subparagraph 132(5B)(b) (previously 132(5C)(b)) by inserting after the word “hire”, the words “or otherwise promote, advertise or market”. This amendment extends the criminal offences in subclause 132(5B) to the promotion, advertising and marketing of circumvention devices.
85. Amendment 41 also amends subparagraph 132(5B)(e)(i) (previously 132(5C)(e)(i)) by inserting after the words “sale or hire”, the words “or otherwise promoting, advertising or marketing”. This amendment is similar in intent and effect to the amendment to subclause 132(5B)(b).
86. Subclause 132(5B) is also amended by the removal of the word “effective” from the reference to “effective technological protection measure” in the old subclause 132(5C). This is a technical amendment resulting from the new definition of “technological protection measure” in Amendment 5.
87. Amendment 41 amends subclause 132(5D) (previously subclause 132(5E)) by inserting the words “without the permission of the owner or licensee of the copyright” in the old subclause 132(5E) before the words “if any”. The effect of this amendment is to add an additional requirement to the acts proscribed in subclauses 132(5D)(a)-(c) that they take place without the permission of the owner or licensee. This amendment is intended to ensure that that subclause 132(5D) complies with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Phonograms and Performances Treaty. A similar amendment is made to Item 98 in respect of civil actions by Amendment 37.
88. In addition, subclause 132(5D)(e) (previously subclause 132(5E)(e)) is amended by omitting the words “removal or alteration” from the old subclause 132(5E)(e) and substituting the words “doing of the act referred to in paragraph (a), (b) or (c)”. Amended subclause 132(5D)(e) provides that the defendant must also have known that the distribution, importation and communication of a work or other subject-matter would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject-matter. This amendment is intended to ensure that subclause 132(5D) complies with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Phonograms and Performances Treaty. A similar amendment is made to Item 98 in respect of civil actions by Amendment 38.
89. New Item 100 amends subclause 132(5E) (previously 132(5F)) by replacing the phrase “(5B) and (5C)” with “(5A) and (5B)”. This is a consequence of the repeal of s.132(5A) of the Act. The item also amends subclause 132(5F) (previously 132(5G)) by replacing the phrase “(5B) and (5C)” with “(5A) and (5B)”. This is also a consequence of the repeal of s.132(5A) of the Act.
90. Amendment 41 amends subclause 132(5G) (previously 132(5H)) by omitting “(5C)” and substituting “(5B)”. This is a consequence of the repeal of s.132(5A) of the Act.
91. New Item 100 amends subclause 132(5H) (previously subclause 132(5J)) by inserting “48A” after “47F”, and inserting “51A” after the numeral “50”. The effect of this provision is to extend the permitted purpose exemptions which allow for the manufacture and dealing in circumvention devices and services. This will facilitate Parliamentary Libraries being able to use works for members of Parliament (under s.48A of the Act), where such material has been protected by a technological protection measure. Similarly, the amendment will facilitate libraries and archives being able to use works for preservation and other purposes (under clause 51A), where such material has been protected by a technological protection measure. For example, a circumvention device may be required to enable the reproduction and communication of a work for administrative purposes, as provided by the proposed clauses 51A(2) and (3). The amendment applies to criminal sanctions against the manufacture and dealing in circumvention devices and services. A similar amendment is provided with respect to civil actions (see Amendment 36)
Amendment 42
92. Amendment 42 amends Schedule 1 of the Bill by inserting a new Item 100A. Item 100A inserts new subclauses 132(6AA) and 132(6AB).
93. New subclause 132(6AA) provides that where a person contravenes ss.132(1), (2) or (2A) of the Act, and the article to which the contravention relates is an infringing copy made by converting the work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form, the person is guilty of an offence. The maximum penalty that applies to this offence is 850 penalty units and/or 5 years imprisonment. This amendment is intended to operate so that where an offence involves the digitisation of copyright material a higher monetary penalty (but not an increased prison term) may be imposed.
94. New Item 100A also inserts new subclause 132(6AB) which provides that where a person contravenes ss.132(1), (2) or (2A) of the Act, and the new subclause 132(6AA) does not apply (ie the contravention does not involve the conversion of a work or other subject-matter from hardcopy or analog form into digital or other electronic machine-readable form), the maximum penalty for that offence is 550 penalty units and/or imprisonment for 5 years. This maintains the current penalties provided by the Act for offences under s.132(1), (2) and (2A) where the offence does not involve digitisation of copyright material.
95. The legislative note to s.132(6A) which clarifies that a corporation may be fined up to 5 times the amount of the maximum fine imposed will also apply to the new subclauses 132(6AA) and 132(6AB).
Amendment 43
96. Amendment 43 omits Item 101 from Schedule 1 of the Bill and substitutes a new Item 101.
97. New Item 101 amends s.132(6A) of the Act by removing the phrase “(1), (2), (2A), (3), (5) or (5AA)” and substituting “(3), (5), (5AA), (5A), (5B), (5C) or (5D)”. This amendment is a consequence of the introduction of an increased monetary penalty for offences involving the digitisation of a work or other subject-matter (see Amendment 42), and the repeal of s.132(5A) of the Act (see Amendment 41).
98. The effect of this amendment is to provide that a person who contravenes ss.132(3), 132(5) or 132(5AA) of the Act or subclauses 132(5A) - 132(5D) is guilty of an offence punishable by a maximum penalty of 550 penalty units and/or 5 years imprisonment. It also extends the summary offences in s.132(6A) of the Act to contraventions of subclauses 132(5A), (5B), (5C) and (5D).
Amendment 44
99. Amendment 44 amends Schedule 1 of the Bill by inserting a new Item 101A. New Item 101A repeals s.132(9) of the Act and inserts a new subclause 132(9).
100. New subclause 132(9) adds new definitions to the existing definition of “place of public entertainment”. It introduces a definition of “supply”, which was previously included in subclause 132(5L) of the Bill. It also provides that for the purposes of s.132 of the Act, “article” includes a reproduction or copy of a work or other subject-matter in electronic form. The effect of this amendment is to clarify that the term “article” includes an article in electronic form.
101. New subclause 132(9) also provides that for the purposes of the section, “distribute” includes distribute by way of communication. The effect of this amendment is to provide that the term distribute includes a distribution by way of a communication. This amendment is intended to ensure that the offences in s.132 of the Act which relate to distribution apply both to the making available element and the transmission element of the new communication right.
Amendment 45
102. Amendment 45 amends Schedule 1 of the Bill by inserting after Item 102 a new Item 102A. Item 102A inserts into s.134 of the Act after the words “of a device”, the words “(including a circumvention device)”.
103. Item 102A clarifies that the limitation of actions in s.134 of the Act includes actions in relation to circumvention devices, which is consistent with amendments to s.116(1)(b) of the Act effected by Item 97.
Amendment 46
104. Amendments 46 to 61 extend the Part VAA scheme (Broadcast decoding devices) to include civil remedies and criminal sanctions against the manufacture and dealing in decoding devices for the unauthorised reception of encoded free-to-air broadcasts. The amendments also introduce a new civil remedy for the use of a decoding device for a commercial purpose.
105. Amendment 46 amends Schedule 1 of the Bill by omitting the word “subscription” from the definition of “broadcast decoding device” in subclause 135AL. This amendment is intended to extend the meaning of broadcast decoding device to include devices that enable access to an encoded broadcast without the authorisation of both a subscription broadcaster and/or a free-to-air broadcaster.
Amendment 47
106. Amendment 47 amends Schedule 1 of the Bill by omitting the definition of “encoded broadcast” in clause 135AL and substituting a new definition of “encoded broadcast”. Amendment 47 extends the definition of encoded broadcast to include both encoded free-to-air broadcasts (excluding radio broadcasts) and subscription broadcasts (see Amendment 46).
Amendment 48
107. Amendment 48 amends Schedule 1 of the Bill by omitting the word “subscription” from the definition of “subscription broadcaster” in clause 135AL. This amendment clarifies that “broadcaster” includes both subscription and free-to-air broadcasters who make encoded broadcasts (see Amendment 46).
Amendment 49
108. Amendment 49 amends Schedule 1 of the Bill by inserting the words “the manufacture of and dealing with” after the words “in relation to” in the heading of s.135AN. The effect of Amendment 49 is to clarify that clause 135AN applies to the manufacture of and dealing with broadcast decoding devices, in contrast to clause 135ANA which applies to the use of broadcast decoding devices for commercial purposes.
Amendment 50
109. Amendment 50 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(a). This is a consequential amendment (see Amendment 46).
Amendment 51
110. Amendment 51 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(b). This is a consequential amendment (see Amendment 46).
Amendment 52
111. Amendment 52 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(b)(iii). This is a consequential amendment (see Amendment 46).
Amendment 53
112. Amendment 53 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(b)(v)(B). This is a consequential amendment (see Amendment 46).
Amendment 54
113. Amendment 54 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(b)(vi). This is a consequential amendment (see Amendment 46).
Amendment 55
114. Amendment 55 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(1)(c). This is a consequential amendment (see Amendment 46).
Amendment 56
115. Amendment 56 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AN(3). This is a consequential amendment (see Amendment 46).
Amendment 57
116. Amendment 57 amends Schedule 1 of the Bill by inserting new clause 135ANA (Actions in relation to the use of broadcast decoding devices for commercial purposes).
117. The new clause 135ANA introduces a new civil remedy in relation to the use of a broadcast decoding device in order to receive an encoded broadcast for commercial purposes. It is intended that new clause 135ANA will protect the commercial interests of copyright owners and focus the remedy on public and commercial activities rather than use by individuals. The new section is intended to include a remedy against the use of a decoding device to allow reception in a premises such as a hotel or pub even though no payment is required from patrons to watch the broadcast.
118. Subclause 135ANA(2) provides a specific exception to the operation of subclause 135ANA(1) in relation to anything lawfully done for the purposes of law enforcement or national security, by or on behalf of the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory.
119. Subclause 135ANA(3) creates a civil cause of action under clause 135AN for a broadcaster against a person who does any of the acts listed in subclause 135ANA(1). This provision is subject to subclause 135ANA(7), which creates a time limit of 6 years within which actions may be brought.
120. Subclauses 135ANA(4), (5) and (6) provide remedies for the actions created under clause 135ANA. Subclause (4) provides that in an action under the clause, the relief that a court may grant includes an injunction, and either damages or an account of profits.
121. Subclause 135ANA(5) provides that the court may award additional punitive damages, having regard to relevant matters including the flagrancy of the defendant’s actions and any resulting benefit accrued to the defendant.
122. Subclause 135ANA(6) provides that the court may, having regard to all relevant matters, make an order to direct that the relevant broadcast decoding device be destroyed or otherwise dealt with as specified in the order. For example, the court may order, in appropriate circumstances, that the relevant broadcast decoding device be delivered to the relevant broadcaster.
123. Subclause 135ANA(7) limits the time in which actions can be brought under clause 135ANA to 6 years after the act was done. This provision is consistent with the time limits imposed on civil actions by s.134 of the Act and subclause 135AN(8).
Amendment 58
124. Amendment 58 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AS(1)(c). This is a consequential amendment (see Amendment 46).
Amendment 59
125. Amendment 59 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AS(1)(e)(ii). This is a consequential amendment (see Amendment 46).
Amendment 60
126. Amendment 60 amends Schedule 1 of the Bill by omitting the word “subscription” from subclause 135AS(1)(f). This is a consequential amendment (see Amendment 46).
Amendment 61
127. Amendment 61 amends Schedule 1 of the Bill by omitting the word “subscription” from the last paragraph of subclause 135AS(1). This is a consequential amendment (see Amendment 46).
Amendment 62
128. Amendment 62 amends Item 104 of Schedule 1 of the Bill by omitting subclauses 135AS(4) and (5) and substituting a new subclause 135AS(4). New subclause 135AS(4) provides that a person who contravenes subclause (1) is guilty of a summary offence punishable by a maximum of 5 years imprisonment and/or a maximum fine of 550 penalty units.
Amendment 63
129. Amendments 63 to 78 amend Schedule 1 of the Bill by extending the Part VA statutory licence scheme (Copying of broadcasts by educational and other institutions) to encompass the new right of communication to the public. The amendments will enable educational and other institutions to communicate broadcasts that they have copied, subject to the payment of equitable remuneration to the owners of copyright in the underlying material included in the broadcast. The proposed new amendments to Part VA are consistent with the amendments to the Part VB statutory licence to provide for the reproduction and communication of works by educational and other institutions.
130. The proposed amendment of Part VA is based upon a direct extension of the current records and sampling system to the communication right. It also involves the introduction of a more flexible “agreed system” for the copying and communication of broadcasts. Under the agreed system the amount of equitable remuneration, and the matters and processes constituting the system are based upon the agreement of the relevant parties, or failing such agreement, determination by the Copyright Tribunal.
131. Amendment 63 amends Schedule 1 of the Bill by inserting “and communication” after “Copying” in the heading of Part VA. This amendment is a consequence of the extension of Part VA to the communication of broadcasts.
Amendment 64
132. Amendment 64 amends Schedule 1 of the Bill by inserting a new Item 105A. The new item inserts a term “agreed notice” in s.135A of the Act. The definition provides that an agreed notice is a remuneration notice that specifies the amount payable to a collecting society by an educational or other institution giving the notice, where the amount payable is to be assessed on the basis of an agreed system rather than a record or sampling based system.
Amendment 65
133. Amendment 65 amends Schedule 1 of the Bill by omitting Item 108 and substituting new Items 108, 108A and 108B.
134. New Item 108 amends s.135B of the Act by replacing the term “transmission” with the term “broadcast” and amending the heading to s.135B of the Act to read “Copies and communications of broadcasts”.
135. New Item 108A repeals paragraph 135B(b) of the Act and substitutes proposed new subclauses 135(b) and 135(c). This item effectively replaces the term “transmission” in paragraph 135B(b) of the Act with the term “broadcast”. The item also inserts a new subclause 135B(c), which provides that a reference to the communication of a copy of the broadcast is a reference to the communication of a copy of either the whole or part of a broadcast.
136. New Item 108B repeals the heading to Division 2 of Part VA and replaces it with “Division 2—Copying and Communication of Broadcasts”. This Item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
Amendment 66
137. Amendment 66 amends Schedule 1 of the Bill by omitting Item 109 and substituting proposed new Items 109, 109A, 109B, 109C, 109D and 109E.
138. New Item 109 amends s.135E(1) of the Act by replacing the term “transmission” with the term “broadcast” and by amending the heading to read “Copying and communication of broadcasts by educational institutions”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
139. New Item 109A amends s.135E(1) of the Act by inserting the words “or communication” after the words “by the making”. This Item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
140. New Item 109B amends ss.135E(1)(b) and (c) of the Act by inserting the words “or communication” after the word “copy” whenever occurring. This Item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
141. Item 109C amends s.135E(1)(d) of the Act by repealing the paragraph and inserting a new subclause 135E(1)(d). The effect of this Item is to include reference to compliance with new clause 135KA (see Amendment 73) which provides notice requirements in respect of communications. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
142. Item 109D amends s.135E(2) of the Act by omitting the words “copy of a transmission” and substituting the words “copy, or communication of a copy, of a broadcast”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
143. Item 109E inserts at the end of s.135E(2) of the Act the words “or communication”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
Amendment 67
144. Amendment 67 amends Schedule 1 of the Bill by inserting a new subclause 135F(7). Subclause 135F(7) extends the “Preview copies” provisions to the communication of preview copies. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
Amendment 68
145. Amendment 68 amends Schedule 1 of the Bill by omitting Item 111 and inserting proposed new Items 111 and 111A.
146. Item 111 repeals s.135G(1) of the Act and substitutes a proposed new subclause 135G(1). New subclause 135G(1) extends the “Remuneration notices” provisions to the communication of copies of broadcasts. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
147. Item 111A amends s.135G(2) of the Act by omitting the words “or a sampling system” and substituting the words “a sampling system or an agreed system”. This item extends the requirements of s.135G of the Act to the new agreed system and is a consequence of the extension of Part VA to communication of broadcasts (see Amendment 63).
Amendment 69
148. Amendment 69 amends Schedule 1 of the Bill by omitting Item 112 and substituting proposed new Items 112 and 112A.
149. New Item 112 amends s.135H(1) of the Act by repealing subsection (1) and substituting a new subclause (1), which extends the “Record notices” provisions in the Act to the communication of broadcasts. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
150. New Item 112A amends s.135H(1A) of the Act by adding at the end of that subsection “and for the communication by, or on behalf of that body, of the broadcast”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
Amendment 70
151. Amendment 70 amends Schedule 1 of the Bill by adding after Item 113 new Item 113A. New Item 113A inserts at the end of s.135H of the Act new subclauses (3), (4) and (5).
152. New subclause 135H(3) provides that if a broadcast has been copied and is communicated by being made available online for more than the prescribed period, the work will be deemed to have been copied and communicated again by being made available online for the next prescribed period.
153. New subclause 135H(4) provides that in determining an amount of equitable remuneration under a records notice, the parties must take into account subclause 135A(3)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for longer than the prescribed period. Further, the subclause provides that the parties must have regard to such matters, if any, as are prescribed, and such other matters, if any, as are relevant in the circumstances. If the parties cannot reach agreement as to the amount of equitable remuneration the Copyright Tribunal must have regard to these factors.
154. New subclause 135H(5) provides that the prescribed period for subclause 135H(3) is a default period of 12 months, or as otherwise agreed between the parties.
Amendment 71
155. Amendment 71 amends Schedule 1 of the Bill by omitting Item 114 and substituting new Items 114, 114A, 114B, 114C and 114D.
156. New Item 114 amends s.135J(1) of the Act by repealing subsection (1) and substituting a new subclause (1), which extends the “Sampling notices” provisions to the communication of broadcasts. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
157. New Item 114A amends s.135J(1A) of the Act by omitting the words “transmissions made by or on behalf of that body” and substituting the words “broadcasts made by, or on behalf of that body and for communications by, or on behalf of that body, of such broadcasts”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
158. New Item 114B inserts a new subclause 135J(1B). New subclause 135J(1B) provides that if a broadcast has been copied and is communicated by being made available online for more than the prescribed period, the work will be deemed to have been copied and communicated again by being made available online for the next prescribed period.
159. New Item 114C repeals s.135J(2) of the Act and substitutes a new subclause 135(2). The new subclause 135J(2) provides that in determining an amount of equitable remuneration under a sampling notice, the parties must take into account subclause 135J(1B)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for longer than the prescribed period. Further, the subclause provides that the parties must have regard to such matters, if any, as are prescribed, and such other matters, if any, as are relevant in the circumstances. If the parties cannot reach agreement as to the amount of equitable remuneration the Copyright Tribunal must have regard to these factors.
160. New Item 114D amends s.135J(3) of the Act by omitting the words “of transmissions” and substituting the words “of broadcasts and communication of a copy of a broadcast”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
Amendment 72
161. Amendment 72 amends Schedule 1 of the Bill by omitting Item 115 and substituting new Items 115, 115A and 115AB.
162. New Item 115 amends s.135J(5) of the Act by omitting the word “transmission” and substituting the words “broadcast, or communication of a copy of a broadcast,”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
163. New Item 115A inserts a new subclause 135J(6) which provides that the prescribed period for the purposes of subclause 135J(1B) is 12 months, or as otherwise agreed between the parties.
164. New Item 115AB inserts a new clause 135JA (Agreed notice) after s.135J of the Act. The amendment extends the statutory licence scheme to allow for an agreed system. The agreed system is drafted broadly to ensure flexibility and enable it to encompass future technological developments. The extended scheme is based upon agreement between the relevant parties (the administering body and the collecting society).
165. New subclause 135JA(1) provides for the determination of the amount of equitable remuneration payable under an agreed notice for copies of broadcasts and communications of such broadcasts. If an agreed notice is given by an administering body, the amount of equitable remuneration payable while the notice is in force is to be determined by agreement between the administering body and the collecting society. If such an agreement cannot be reached, then either party may apply to the Copyright Tribunal to determine the amount. The amount of equitable remuneration under the notice can be calculated on an annual basis or otherwise.
166. New subclause 135JA(2) provides that if a determination has been made by the Tribunal under subclause (1), the administering body or collecting society can apply to the Tribunal after 12 months for a new determination under subclause (1).
167. New subclause 135JA(3) provides that the administering body and the relevant collecting society must agree on the matters and processes constituting an agreed system, and any other matters that are necessary or convenient to be assessed or taken into account for the purposes of the system. If the administering body and the relevant collecting society cannot agree on these issues either party may apply to the Copyright Tribunal to determine the issues.
168. New subclause 135JA(4) provides that where a broadcast has been copied and is communicated by being made available online for more than the prescribed period (12 months or another period if agreed), the work will be deemed to have been copied again and communicated by being made available online for the next prescribed period.
169. New subclause 135JA(5) provides that in determining the amount of equitable remuneration under an agreed notice, the parties or Copyright Tribunal must take into account subclause 135JA(4)(d) and (e) to enable additional remuneration to be paid if the copy remains available online for more than the prescribed period.
170. New subclause 135JA(6) provides that in determining an amount of equitable remuneration under an agreed notice, different amounts may be determined for the copying and communication of broadcasts undertaken by different institutions administered by the same administering body.
171. New subclause 135JA(7) has the effect that if an agreed notice is in force, and an administering body does not comply with any requirements under clause 135JA, then ss.135E(1) and 135F(1) of the Act do not apply and any copies and communications made under the section will be infringing copies and communications.
172. New subclause 135JA(8) provides that the prescribed period for subclause 135JA(4) is a default period of 12 months, or as otherwise agreed between the parties.
Amendment 73
173. Amendment 73 amends Schedule 1 of the Bill by omitting Item 116 and substituting proposed new Items 116, 116A, 116B, 116C, 116D and 116E.
174. New Item 116 amends s.135K(1)(a) of the Act by omitting the words “copy of a transmission” and substituting the words “in analog form of a broadcast”. The effect of this item is to limit the marking requirements in s.135K(1) of the Act to analog copies of broadcasts.
175. New Item 116A amends s.135K(1)(b) of the Act by omitting the word “transmission” and substituting the words “broadcast, and each communication of such a copy”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
176. New Item 116B amends s.135K(1)(c) of the Act by inserting the words “or communication” after the word “copy”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
177. New Item 116C amends s.135K(2) of the Act by omitting the words “For the purposes of subsection (1), a record of the copying of a transmission” and substituting the words “A record of the kind referred to in paragraph (1)(b):”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
178. New Item 116D amends s.135K(3) of the Act by omitting the words “copy of a transmission” and substituting the words “copy in analog form of a broadcast”. The effect of this item is to limit the marking requirements in s.135K(3) of the Act to analog copies of broadcasts.
179. New Item 116E inserts after s.135K of the Act a new clause 135KA (Notice requirements in respect of communications). New clause 135KA introduces new notice requirements for the communication of copies of broadcasts.
180. New subclause 135KA(a) provides that where a communication of a copy of a broadcast is made under a remuneration notice, the administering body must provide a notice in relation to each communication except in such circumstances as are prescribed. Such a notice must contain statements to the effect that the copyright material communicated might be subject to copyright protection, and that the communication has been made under a statutory licence under Pt VA. The notice must also contain other information or particulars (if any) as prescribed.
181. New subclause 135KA(b) provides that where a licensed communication is made while the remuneration notice is in force, the administering body shall take all reasonable steps to ensure that the communication can only be received or accessed by persons entitled to do so.
182. New subclause 135KA(c) provides that the administering body must comply with any other prescribed requirements in relation to each communication made while the notice is in force.
Amendment 74
183. Amendment 74 amends Schedule 1 of the Bill by omitting Item 117 and substituting new Items 117 and 117A.
184. New Item 117 amends s.135L(1)(a) of the Act by omitting the words “of transmissions” and substituting the words “of broadcasts and communication of such copies”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
185. New Item 117A amends s.135L(1)(b) of the Act by omitting the words “of copies of transmissions” and substituting the words “and communication of copies of broadcasts”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
Amendment 75
186. Amendment 75 amends Schedule 1 of the Bill by omitting Item 118 and substituting proposed new Items 118 and 118A.
187. New Item 118 amends s.135N(1) of the Act by omitting the words “or 135J, as the case may be, for copies of transmissions” and substituting the words “,135J or 135JA, as the case may be, for copies of broadcasts and communications of such copies”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
188. New Item 118A amends s.135P(3)(d)(i) of the Act by omitting the words “or 135J” and substituting the words “, 135J or 135JA”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
Amendment 76
189. Amendment 76 amends Schedule 1 of the Bill by omitting Item 119 and substituting a new Item 119.
190. New Item 119 amends ss.135U(1) and (2) of the Act by omitting the word “transmission” wherever it occurs and substituting the word “broadcast”. This item is a consequence of the new definition of the term “broadcast” in Item 1 of the Bill.
Amendment 77
191. Amendment 77 amends Item 122 of Schedule 1 of the Bill by inserting in clause 135Z the words “and to communicate, or cause to be communicated, that copy or reproduction after the second occurrence of the word “work”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
Amendment 78
192. Amendment 78 amends Schedule 1 of the Bill by omitting Item 123 and inserting a new Item 123.
193. New Item 123 amends s.135ZA of the Act by omitting the words “of a copy of a transmission” and substituting the words “or communication of a copy of a broadcast”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
Amendment 79
194. Amendment 79 amends Item 151 of Schedule 1 of the Bill by omitting the second occurrence of the word “communication” from subclause 135ZMB(3) and substituting the words “the first communication of the work”. The effect of this amendment is to clarify that the 14 day period specified in the subclause commences on the day on which the work was first communicated.
Amendment 80
195. Amendment 80 amends Item 153 of Schedule 1 of the Bill by omitting the words “institution or otherwise, or” and substituting the words “the institution or otherwise, of”. This amendment is to remedy a typographical error.
Amendment 81
196. Amendment 81 amends Schedule 1 of the Bill by omitting Item 183. The effect of this amendment is to remove the requirement to renew an electronic use notice annually. This amendment is a consequence of amendments to Item 185 made by Amendment 82.
Amendment 82
197. Amendment 82 amends Item 185 of Schedule 1 of the Bill by inserting new subclauses 135ZWA(2A), (2B), (2C), and (2D).
198. New subclause 135ZWA(2A) provides that if a work is reproduced and made available online, and the work remains available online for more than the prescribed period, the work will be deemed to have been reproduced and communicated again for the next prescribed period. Further equitable remuneration will then be payable in respect of that deemed reproduction and communication.
199. New subclause 135ZWA(2B) provides that in determining the amount of equitable remuneration payable under an electronic use system, the parties must take account of the requirements in subclauses 135ZWA(2A)(d) and (e) to enable additional remuneration to be paid if the reproduction remains available online for longer than the prescribed period.
200. New subclause 135ZWA(2C) clarifies that, subject to new subclause 135ZWA(2B), an electronic use system may be based upon a sampling system, a records system, or any other process or system (whether agreed between the parties or determined by the Copyright Tribunal).
201. New subclause 135ZWA(2D) provides that when determining an amount of equitable remuneration under an electronic use notice, different amounts may be determined (either by agreement or by the Copyright Tribunal) for the reproduction and communication of works that is undertaken by different institutions administered by the same administering body.
Amendment 83
202 Amendment 83 amends Item 185 of Schedule 1 of the Bill by inserting the word “by” in subclause 135ZWA(3) after “period”. This is a typographical amendment.
Amendment 84
203. Amendment 84 amends Item 185 of Schedule 1 of the Bill by inserting new subclause 135ZWA(4). New subclause 135ZWA(4) provides that the prescribed period for subclause 135ZWA(2A) is a default period of 12 months, or the parties may agree to a different period.
Amendment 85
204. Amendment 85 amends Item 189 of Schedule 1 of the Bill by omitting the word “is” from paragraph (a)(ii) of clause 135ZXA and substituting the words “might be”. This is a technical amendment with the effect that when an electronic use notice is in force, the administering body must notify the user of each licensed copy or communication, that the copy or communication has been made under Part VB, and that the article or work might be subject to copyright protection under the Act.
Amendment 86
205. Amendment 86 omits Item 193 of Schedule 1 of the Bill and inserts a new Item 193. New Item 193 omits the words “or 135ZW” from s.135ZZB(3)(d)(i) of the Act and substitutes the words “,135ZW or 135ZWA”. This is a technical amendment.
Amendment 87
206. Amendment 87 amends Item 200 of Schedule 1 of the Bill by omitting “135ZZS” from the definition of “collecting society” in clause 135ZZI and substituting “135ZZT”. This is a technical amendment.
Amendment 88
207. Amendment 88 amends Item 200 of Schedule 1 of the Bill by omitting “135ZZW” from the definition of “notice holder” in clause 135ZZI and substituting “135ZZX”. This is a technical amendment.
Amendment 89
208. Amendment 89 amends Item 200 of Schedule 1 of the Bill by omitting the words “of the same” from the definition of “relevant collecting society” in clause 135ZZI and substituting the words “in the same”. This is a technical amendment.
Amendment 90
209. Amendment 90 amends Item 200 of Schedule 1 of the Bill by inserting new clause 135ZZJA. New clause 135ZZJA clarifies that Part VC of the Act does not apply to the retransmission of free-to-air broadcasts via the Internet. Consequently, retransmitters would be required to negotiate on a voluntary basis with all relevant underlying rights holders in a broadcast before retransmitting a free-to-air broadcast via the Internet.
Amendment 91
210. Amendment 91 amends Item 200 of Schedule 1 of the Bill by inserting the words “the title of each program included in” after the words “kept of” in subclause 135ZZN(2). This amendment clarifies that the retransmitter is only required to keep a log of the title of each program in a retransmitted broadcast.
Amendment 92
211. Amendment 92 amends Item 200 of Schedule 1 of the Bill by inserting the heading “Division 5–Miscellaneous” after clause 135ZZZB. This amendment is to clarify that clauses 135ZZC, 135ZZD, and 135ZZE differ from the preceding provisions in Division 4 of the Act that deal with interim retransmissions.
Amendment 93
212. Amendment 93 amends Item 201 of Schedule 1 of the Bill by omitting subclause 136(1)(a) and substituting a new subclause 136(1)(a). New subclause 136(1)(a) extends the proposed definition of licence in subclauses 136(1)(a) and (b) of the Bill to include a licence to electronically transmit a work or an adaptation of a work in a transmission (other than in a broadcast) for a fee payable to the person who made the transmission. This amendment includes in the definition of licence the elements of the cable diffusion right which are not covered by the new definition of “broadcast”. The purpose of this amendment is to maintain the current scope of the licence under s.136(1)(a) of the Act.
Amendment 94
213. Amendment 94 amends Schedule 1 of the Bill by inserting after Item 203, new Items 203A, 203B, 203C, 203D, 203E and 203F.
214. New Item 203A repeals s.153A(1) of the Act and substitutes a new subclause 153A(1). This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
215. New Item 203B amends s.153A(2) of the Act by omitting the words “or subsection 135J(1)” and substituting the words “, subsection 135J(1) or subsection 135JA(1)”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
216. New Item 203C amends s.153A(2) of the Act by inserting the words “and communicating” after the words “the making”. This item is a consequence of the extension of Part VA of the Act to the communication of broadcasts (see Amendment 63).
217. New Item 203D amends s.153A(3)(e) of the Act by inserting the words “and communicated” after the words “are made”. This item is a consequence of the extension of Part VA to the communication of broadcasts (see Amendment 63).
218. New Item 203E amends s.153A(4) of the Act by inserting the words “and to communications of such copies” after the word “broadcasts”. This item is a consequence of the extension of Part VA to communication of broadcasts (see Amendment 63).
219. New Item 203F amends s.153A(5) of the Act by omitting the words “broadcast, collecting society and institution” and substituting the words “and collecting society”. The effect of this item is the removal of the reference to “broadcast” and “institution” from s.153A(5) of the Act. This is a technical amendment to ensure consistent terminology in s.153A of the Act. The term “broadcast”, which previously was defined to have the same meaning as in Part VA, is now defined in Item 1 of the Bill.
Amendment 95
220. Amendment 95 amends Schedule 1 of the Bill by omitting Item 204 and substituting a new Item 204.
221. New Item 204 inserts a new clause 153BA which provides for applications to the Copyright Tribunal under subclause 135JA(3) (agreed notice).
222. New subclause 153BA(1) provides that the parties to an application to the Copyright Tribunal under subclause 135JA(3) for the determination of the matters and processes constituting an agreed system, are the relevant collecting society and administering body.
223. New subclause 153BA(2) provides that if such an application is made to the Tribunal, it must consider the application after giving the parties an opportunity to present their cases. The Tribunal must then make an order determining the agreed system.
224. New subclause 153BA(3) provides that in determining the agreed system, the Tribunal may have regard to such matters, if any, as are prescribed.
225 New subclause 153BA(4) provides that the terms “administering body” and “collecting society” have the same meanings as defined in Part VA of the Act.
Amendment 96
226. Amendment 96 inserts a new clause 153BB which provides for applications to the Copyright Tribunal under subclause 135ZME(3) (certain illustrations in electronic form). New clause 153BB results from the re-numbering required by the addition of clause 153BA.
227. New subclause 153BB(1) provides that the parties to an application to the Copyright Tribunal under new subclause 135ZME(3) for the determination of the division of an amount of remuneration are the relevant copyright owners.
228. New subclause 153BB(2) provides that if an application is made to the Tribunal under subclause 135ME(3), it must consider the application after giving the parties an opportunity to present their cases. The Tribunal must then make an order determining the division of the amount of remuneration between the parties in a way the Tribunal thinks is equitable.
229. New subclause 153BB(3) provides that in making such an order, the Tribunal must have regard to such matters, if any, as are prescribed.
Amendment 97
230. Amendment 97 amends Item 209 of Schedule 1 of the Bill by omitting the word “institution” from subclause 153C(5). This is a technical amendment to ensure consistent terminology in s.153C of the Act.
Amendment 98
231. Amendment 98 amends Item 210 of Schedule 1 of the Bill by omitting the word “institution” from subclause 153DA(4). This is a technical amendment to ensure consistent terminology in clause 153DA.
Amendment 99
232. Amendment 99 amends Schedule 1 of the Bill by inserting new Item 217A. New Item 217A inserts a new clause 203G (Additional offences relating to declarations under subsections 116A(3) and 132(5F)).
233. New subclause 203G(1) provides that it is an offence to make a declaration in relation to the acquisition of a circumvention device or service, knowing that the declaration is false or misleading. The penalty for contravention of this section is a maximum of 12 months imprisonment.
234. New subclause 203G(2) provides that it is an offence to make a declaration in relation to the acquisition of a circumvention device or service, being reckless as to whether the declaration is false or misleading in a material particular. The penalty for contravention of this section is a maximum of 6 months imprisonment.
235. New subclause 203G(3) provides that it is an offence to dispose of or destroy, or cause to be disposed of or destroyed, a declaration in relation to the supply of a circumvention device or service, if the person knows or is reckless as to whether the prescribed retention period has not expired. The penalty for contravention of this section is a maximum of 6 months imprisonment.
Amendment 100
236. Amendment 100 omits Item 219 of Schedule 1 of the Bill and inserts a new Item 219. New Item 219 omits the words “a copy” from s.203H(4)(a) of the Act and substitutes the words “on a reproduction”. This is a technical amendment to ensure consistent terminology in the Act.
SCHEDULE 2 - TRANSITIONAL PROVISIONS
Amendment 101
237. Amendment 101 amends Item 3 of Schedule 2 of the Bill by omitting the words “(1) a licence, contract or arrangement (other than”, and substituting “A licence, contract or arrangement (including”. Subitem 3(1) provides that a licence, contract, arrangement or assignment that was in force immediately before the date of commencement that relates to the broadcasting right or cable transmission right in a work or other subject-matter, continues to have effect on and after the date of commencement as if the Copyright Act 1968 had not been amended by this Bill. Subject to any contrary intention in the licence, contract, arrangement or assignment, the Act therefore continues to apply in relation to such licences, contracts, assignments or arrangements to the same effect as it did immediately before the commencement of the Bill.
238. Subitem 3(1) is subject to any contrary intention appearing in the licence, contract, arrangement or assignment. For example, where the copyright owner has specifically licensed future rights, or an activity which involves the exercise of the new elements of the communication right (such as uploading the work onto a server which is connected to the Internet), the existing arrangement would be construed as being effective to licence the relevant parts of the communication right conferred by the Bill. A specific reference to only one element of the communication right (for example, the making available of a work online), should not be construed as including the remainder of the communication right (ie. the right to electronically transmit).
Amendment 102
239. Amendment 102 amends Item 3 of Schedule 2 of the Bill by omitting subitem (2).
240. This amendment is a consequence of including assignments
of copyright within subitem (1). (see Amendment 101)