WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Copyright Amendment Bill 1997
Date Introduced: 18 June 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: Royal Assent
The purpose of the Bill is to amend the Copyright Act
1968 (Principal Act), primarily to address the issues of moral
rights for authors, artists and film directors and producers, and
to modernise the existing provisions dealing with journalists'
copyright, so as to recognise a publisher's right to provide
on-line electronic access to copyright material and electronic
publication.The Bill also modifies the law to remove an anomaly in
the use of copyright on labels and printed material (which
accompanies imported goods) as means of restricting the importation
of the product itself.
Moral Rights
The principles which underpin copyright are very old in
time.Modern copyright statutes in the English legal system can be
traced to the Statute of Anne of 1709.The censure of plagiarism can
be traced back to the ancient Greek and Roman worlds.Copyright is a
form of intellectual property along with patents, trade marks,
designs, circuit layouts and plant breeder's rights.So important is
the recognition of the need to protect intellectual property rights
that it is included in the Universal Declaration of Human
Rights, which at Article 27, paragraph 2, states:
Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or
artistic production of which he is the author.
The primary international treaty which deals with copyright is
the Berne Convention of 1886 (Berne Convention for the
Protection of Literary and Artistic Works).Australia, as a
sovereign nation, became a signatory to the Berne Convention in
1928. (1)In more recent years, Australia has become a signatory to
the international TRIPS Agreement (Trade Related Aspects of
Intellectual Property Rights) which formed part of the Uruguay
Round of the General Agreement on Tariffs and Trade (GATT), and
which was concluded in December 1993.
The Berne Convention has, for many years, included an
Article (6 bis) which requires Member countries
to protect the moral rights of its authors and
artists.Simply stated, moral rights are those rights which an
author or artist has in protecting the integrity of their creation
from distortion, or a failure to attribute authorship.Moral rights
are based 0n the principle that the created work is a reflection of
the personality of the author or artist and the work should be
respected as such.These rights are additional to the conventional
understanding in this country that copyright is, basically, all
about economic interests and the need to prevent the pirating of
published works. (An interchangeable term in copyright
discussions for economic rights is material rights)
Australia has a good international reputation for compliance
with international agreements dealing with intellectual property
rights.There are some gaps, however, and one of those is that
Australia has not, in the past, fully addressed the issue of moral
rights in terms of its Copyright legislation.Australia has
only limited protection for moral rights.As a consequence, it has
been possible in this country to allow a person or institution to
buy, say, a work of art and to modify it or display it in a fashion
which the artist would consider denigrates his or her reputation.A
simple but extreme example is the acquisition of a sculpture which
is then trimmed by the owner to allow it to fit into a particular
display area.Clearly, the work has been diminished, even destroyed,
but the tendency in this country is to consider the loss in value
of the work of art rather than the potential loss of reputation of
the artist.The Australian approach has, generally, been to regard
the sculpture as the complete property of the purchaser who can do
what they want with their own property.In Australia, the only
effective way an artist can prevent such a distortion is to make
the preservation of the work of art in its original form a
condition of sale.The artist's moral rights are not automatically
protected.European countries, and in more recent times the United
Kingdom, have recognised that copyright has two clear dimensions,
economic rights and moral rights.
Moral rights are an individual's right (i.e. the rights a
natural person) and these rights are not available to a corporate
entity which may own copyright material.
There is another view to the need for the implementation of a
regime of moral rights for Australia.In 1988, the Copyright Law
Review Committee issued a majority report recommending against the
introduction of moral rights.The grounds identified by the
Committee to support non-introduction included the following:
(a) there was insufficient support within Australia for
Australia to enhance itscopyright law in this area;
(b) the theoretical basis for moral rights in a common law
system had not been identified; and
(c) violation of moral rights in Australia were too infrequent
to warrant legislative intervention.(2)
Journalists' Copyright
Broadly stated, an employed author is not entitled to copyright
in his or her work (section 35(6) of the Copyright Act
1968), unless he or she has a contractual arrangement with the
employer to reserve copyright ownership.There is a variation to
this rule and it applies to employed journalists.Although a
newspaper publisher who employs the journalist has the primary
copyright in the article published in the newspaper, a journalist
is entitled to copyright in any secondary use of the article, such
as photocopying for press clipping services and independent book
publishing.Journalists are entitled to receive periodic payments
for the secondary use of their material.
Collection of royalties and fees for the use of copyright
material is vested in a variety of non-government collection
agencies, such as CAL (Copyright Agency Limited), which collect
royalties and fees on behalf of members.
Two recent issues which have arisen in the area of journalists'
copyright are the convergence of electronic technology which can
convert printed work, which has initially been prepared in, say,
hard copy form, to a form which allows on-line electronic access
(theoretically, at least, a secondary use) as well as electronic
publishing, and whether the newspaper proprietor should be entitled
to collect all copyright revenues (e.g. as is the case in the
United States and United Kingdom).Countries which allow the
copyright revenue to be 'split' between the newspaper proprietor
and the journalist include, Australia, New Zealand and Canada.Some
other countries treat the journalist as author and accord the
journalist full copyright.(3)
This Bill proposes to modernise the law to recognise that
publishers are entitled to present their material in electronic
form, and that journalists are entitled to maintain journalists'
copyright in other examples of secondary use of their material,
such as photocopying and independent book publishing.
Labelling and Packaging of Imported Goods: Some
Other Unresolved Issues
Some importers of goods have been able to use the Copyright
Act 1968 as a mechanism to provide with exclusive market
access to those imported products simply because of an assertion of
copyright which attaches to the label or the accompanying
instructional material.It is believed that this practice occurs
with imported liquor, toy, footwear and sunglasses.As noted in the
Explanatory Memorandum (p. 8) to the Bill, the Copyright Law Review
Committee reviewed the practice in 1988 and recommended that the
anomaly be removed as not being an appropriate use of copyright
law.
The Bill addresses this labelling matter but does not deal with
the more topical issue of the restriction on parallel imports of
CDs and computer software, where the product itself involves
copyright in a more primary and direct sense.The Attorney-General
said in his Second Reading speech to the Bill that the Government
is reviewing the matter of parallel imports.
Another issue not addressed is the anomaly whereby the copyright
in commissioned photographs becomes the property of the person who
commissioned the work.There is no reservation of copyright for the
photographer.A further topical matter which might have been
addressed is the issue of retailers playing background music in
their stores and their liability to pay licence fees to the
collection agency, the Australasian Performing Right Association
Limited (APRA). Constitutional Head of Power: History
of Intellectual Property Laws
At federation in 1901, the Commonwealth Constitution included a
head of power to enable the Commonwealth to pass laws with respect
to ' Copyright, patents of inventions and designs, and trade
marks'.The Commonwealth has plenary power to pass laws on
intellectual property.
A more detailed summary of the history of intellectual property
laws and key issues facing Australia can be found in the
publication by the author of this Digest, New Ideas, Old Laws:
Copyright, Patents, Trade Marks and Designs and How to Avoid
Plagiarism, issued by the Department of the Parliamentary
Library as Background Paper No. 12 of 1995-96.
A more detailed background to the issue of parallel imports and
the price of CDs can be found in the publication by the author of
this Digest, Copyright: APRA: Retailers face the Music, a
Research Note issued by the Department of the
Parliamentary Library in August 1996-97, and Copyright and
Monopoly Profits: Books, Recordings and Software a Current
Issues Brief by David Richardson issued by the Department of the
Parliamentary Library in December 1996.
Reader's Note:The proposed amendments are included in Schedules
to the Bill.The terminology to be used therefore is "Item' in the
Schedule in lieu of 'Clause' in the Bill. Schedule 1 Item
1 repeals the existing Part IX False Attribution of
Authorship in the Copyright Act 1968 and replaces it
with a new Part IX Moral rights of authors of literary,
dramatic, musical or artistic works and directors and producers of
cinematograph films.The existing Part IX of the Copyright
Act 1968 has its limitations in that, while it protects
authors and artists from false attribution of their work by another
person, it does not empower the author with the positive right to
require attribution.The existing Part IX does not prevent an
author's name from being added to a work that he or she has not
written.Furthermore, the existing Part IX does not extend to
cinematograph films which are now a significant area of artistic
creation and expression.An 'author' of a cinematograph film is its
'maker' which is defined in the proposed new Part IX to mean the
principal director and principal producer.
The moral rights proposed in the new Part IX are additional to
other rights recognised and protected under intellectual property
law.The moral rights proposed by the Bill are, in broad terms:
(a) the right of attribution of authorship;
(b) the right not to have authorship of a work falsely
attributed; and
(c) the right of integrity of authorship of a work (i.e. the
right to maintain the integrity of the work and not to have the
work subjected to derogatory treatment).
The length of time applicable to the moral rights is the same as
subsists in the basic copyright period attaching to the
material.For a newly published printed work this is 50 years plus
the life of the author.For photographs, sound recordings,
cinematograph films and television the period is, as a general
statement, 50 years after publication or broadcast.
The definitions of what constitutes derogatory treatment for the
purposes of determining whether there has an been an infringement
of moral rights are found at proposed new sections 195AI, 195AJ and
195AK in Schedule 1.
A breach of moral rights does not attract a statutory
penalty.Remedies are found in civil actions which may give rise to
an injunction, an apology, a declaration that a moral right has
been infringed, a order for removal of false attribution, or
damages for loss arising from the infringement (see proposed new
section 195AZ).
Moral rights can be waived by the author, or made subject to an
express consent by an author to a particular act of omission.It is
not an infringement of moral rights if what otherwise may have been
derogatory treatment was reasonable in the circumstances (see
proposed new section 195AR). Schedule 2 Item 1 in
Schedule 2 proposes reform of existing section 35 of the
Copyright Act 1968 to address the issue of employed
journalists' copyright.The primary thrust of the proposed
amendments is to recognise that new electronic technology has given
publishers of newspapers, magazines and similar periodicals more
flexibility in how they publish.The industry has moved rapidly into
the use of electronic transmission and on-line access.
The proposed amendments accord the publisher the right to
electronic publication and the right to restrain photocopying of
more than 15% of an issue of a newspaper, magazine or similar
periodical.The proposed amendments retain the journalists'
copyright in subsequent photocopies of their articles and for
independent book publishing of their articles.
There are alternatives to this approach and that is to allow
proprietors to have all copyright in the work of employed
journalists but with an exception for those occasions where the
proprietor on-sells an article to another publisher.In the United
States, employed journalists are sometimes employed under an
arrangement which allows them 50% of the copyright revenue from
their employer's sale of their work.This approach, if pursued in
Australia, may precipitate industrial action unless there was some
accompanying adjustment to the basic remuneration of
journalists.
Schedule 3
The reason for the proposed amendments contained in Schedule 3
is identified in the Explanatory Memorandum (page 33) to the Bill
by reference to the Bailey's Irish Cream case (Bailey v
Boccaccio and Bailey v Pacific Wine Company
Ltd(4)).Bailey's Original Irish Cream is a liqueur
manufactured in Ireland.It is marketed in a distinctive bottle with
a distinctive label.The Bailey company of Ireland had distribution
agreements with an Australian company, Swift & Moore Pty
Ltd.Competitors to Swift and More imported Bailey's Irish Cream
from the Netherlands at a lower cost to Swift and Moore.Under
existing copyright law, Swift and Moore was able to assert
copyright in the label, as the approved distributor for the Bailey
company in Australia.The effect was to restrict the right to import
the whole product.
The proposed amendments will allow the importation of such
products by competitors if it can be shown that the overseas
manufacturer has already consented to the use of the label or
attached instructional documentation.In other words, if the label
or instructional material has already been approved by the
manufacturer as an accessory to the
product (say, for use in another country), then the importation
into Australia of the product itself should not be stopped.The
issue is that the force of copyright law was never really meant to
apply to the contents of the bottle of liqueur which is really the
subject of the importation.
Item 2 in the Schedule provides a definition of
what constitutes an 'accessory' to the product (e.g. a label,
packaging, instructions, warranty or demonstration film).
As noted above, the removal of this anomaly does not extend to
the matter of restrictions on the parallel importation of products
(such as music CDs and computer software) where the very product
itself is the subject of intellectual property rights, such as
copyright. Schedule 4
The Schedule contains proposed amendments which modify the
effect of the conversion and detention remedies available to the
owners of copyright material.Under the present law, a copyright
owner may seek orders from the court to seize the entirety of item
(e.g. a whole book) which may contain only a small number of pages
which infringe copyright.Clearly, the remedy can be 'unfair' in
that the value of the item seized may be disproportionate to the
commercial value of the infringed copyright.The proposed amendments
allow the Court to exercise its discretion in relation to the
remedies sought.
In technical language, the infringing copy is called a 'plate'
and owes its origins to the printing industry.Items
1 and 3 in the Schedule proposes the
modernising and broadening of the term to 'device', which still
includes a 'plate'.
Schedule 5
This Schedule streamlines the procedures for payment by
Governments of remuneration to copyright owners where the
Government (Commonwealth, State or Territory) utilises copyright
material for the services of Government.Although it is good
practice for Governments to obtain the permission of the copyright
owner and, if necessary, negotiate copyright payments before using
the copyright owner's work, Governments can utilise the work for
the services of government and then settle permission and payments
after the event (see section 183 of the Copyright Act
1968).It is suggested that, in the public interest,
Governments may need to publish reports which contain copyright
material but in circumstances (e.g. security, defence or combating
crime) where an obligation to obtain prior permission of the author
is counterproductive to the public interest.
Under the existing law, the method for calculation of payments
is an assessment by way of full record keeping.The proposed
amendments utilise a sampling method similar to that used by
non-government collection societies, where there is a declared
copyright collecting society which performs the function of
collection and distribution of copyright revenues to copyright
owners.Similar to the existing law, the Copyright Tribunal will be
the forum to hear matters concerning a determination of the terms
of negotiation between the parties involved.The Copyright Tribunal
will also declare the relevant collecting society.
Item 2 in the Schedule inserts proposed new
sections 153E to 153K to implement the new streamlined
procedures.Also, see Items 4 and
5 which introduce proposed new sections 182B and
182C, and 183A to 183E, respectively, to modernise the
procedure.Proposed new section 183D requires declared collecting
societies to furnish annual reports and audited accounts to the
Commonwealth Attorney-General.These reports must be then tabled in
Parliament.
Schedule 6
The proposed amendments contained in Schedule 6 modernise the
terminology used in the Copyright Act 1968 to remove such
expressions as 'intellectually handicapped person' and 'handicapped
readers' and to replace those expressions with terms such as
'person with a disability'.The Copyright Act 1968 already
recognises that it is not an infringement of copyright if a
licensed person makes a sound broadcast or adaptation of a literary
or dramatic work for the benefit of persons with a disability (see
section 47A of the Copyright Act 1968).The proposed
amendments also have the effect of removing any differentiation
between the range of materials available, and the purpose for which
those materials are used, to persons who need assistance,
irrespective of the form of disability (see for example
Items 31 and 32).
Items 4 and 5 in the Schedule
are worth noting because they extend the definition of institution
assisting persons with a disability to include for-profit
organisations, which were previously excluded.
Under the existing law, licensed institutions which make
reproductions for the benefit of persons with a disability are
required to destroy the copy within 3 months after the date on
which it was made.The proposed amendments remove that obligation,
provided the copy is still required to assist persons with a
disability and provided the institution has given notice to a
collecting society.Commercial exploitation of this exemption is an
infringement under section 38 of the Copyright Act 1968
(see Item 37).
Schedule 7
This Schedule contains proposed amendments to Part VA
Copying of Broadcasts by Educational and Other Institutions
and Part VB Copying of Works etc by Educational and Other
Institutions.Essentially, these Parts of the Copyright Act
1968 recognise and give statutory force to the licensing
arrangements agreed upon between copyright owners and users.The
Parts also provide a statutory right for copying of audio visual
broadcast material by educational institutions and institutions
which assist persons with a disability.(5)
The Copyright Tribunal plays an important role in these matters
in arbitrating and settling disputes between the parties.The
proposed amendments provide more flexibility in recognising that
either of the parties (i.e. copyright collection agency or the body
administering an institution) may wish to apply, after 12 months,
for a new determination on the amount of payable in relation to the
use of the copyright material (see Items 3,
10 and 12).
A further flexibility is the introduction of the right of a
collection agency to send a follow-up demand when an amount is not
paid by an institution (see, for example, Item 7
which repeals existing subsection 135N(2)).Under the present law
this may have been construed as issuing more than one remuneration
notice within a 12 month period, which was expressly prohibited by
existing subsection 135N(2).
Schedule 8
This Schedule provides proposed amendments which will allow the
expansion of the membership of the Copyright Tribunal to enhance
the access by parties to the Tribunal, and to improve the operation
of the Tribunal.Provision is made for the appointment of one or
more additional Deputy Presidents (see, for example Items
1, 2, 6 and
9).
Digest Comment: It is agreed that the workload of the
Copyright Tribunal depends upon the volume of applications.The
Explanatory Memorandum to the Bill at page 3 appears to indicate
that any increase in public expenditure caused by additional
appointments to the Tribunal will be minimal and will depend on
applications being made to the Copyright Tribunal.
Schedule 9
This Schedule contains a range of proposed minor amendments
which recognise, amongst other technical changes, a change in
nomenclature in Australian Customs (e.g. Chief Executive Officer of
Customs in lieu of Comptroller-General).Customs plays an important
role in the seizure of imports which infringe copyright.
Schedule 10
This Schedule contains amendments which broaden the definition
of educational institutions (which reproduce copyright works)
beyond the mainstream schools and universities to include
pre-schools, kindergartens (Item 1), and
for-profit educational institutions (see Item
3).Collection Societies may apply to the Copyright
Tribunal for review of a declaration that a particular institution
is an educational institution (see Item
7).
Schedule 11 This Schedule contains a number of
minor technical and consequential amendments, particularly the
inclusion of references to the Broadcasting Services Act
1992, which is a significant piece of legislation enacted
after the Copyright Act 1968.
Item 38 in the Schedule is of interest in that
it enables a party to an application before the Copyright Tribunal
to request that the Tribunal be constituted by more than one
Member.The existing subsection 146(2) provides that the Tribunal
shall be constituted by a single Member.
The Bill contains long-awaited and commendable modifications to
the Copyright Act 1968.It is a little disappointing for
some that it does not deal with the issue of the restriction on
parallel imports of CDs and computer software.As noted above, the
Attorney-General has stated in his Second Reading speech that the
issue of parallel imports is still under review.Other reforms which
could have been addressed are the issue of retailers playing
background music, and the anomaly surrounding the copyright of
commissioned photographs.
The proposed inclusion of an enhanced system of moral rights in
Australian copyright law is, however, a very significant reform in
itself.
The Explanatory Memorandum to the Bill is exceptional in terms
of its clarity and the care in which it explains difficult
concepts.
- Drawn from S. Ricketson, The Law of Intellectual Property, The
Law Book Company, Sydney, 1984.
- See outline in the Discussion Paper, Proposed Moral Rights
Legislation for Copyright Creators
- Attorney-General's Department, Canberra, June 1996: 5 6.
- See Report on Journalists' Copyright, Copyright Law Review
Committee, Canberra, 1994.
- (1987-88) 77 ALR 177.
- Drawn from J. McKeough, Blackeney & McKeough Intellectual
Property, 2nd Ed., The Law Boo
- Company Limited, Sydney, 1992: 115-116,
Brendan Bailey
28 June 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
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of the Australian Parliament in the course of their official
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Published by the Department of the Parliamentary Library,
1997.
This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 15 July 1997
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