Bills Digest No. 102  1999-2000 Copyright Amendment (Digital Agenda) Bill 1999


Numerical Index | Alphabetical Index

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

Passage History
Purpose
Background
Main Provisions
Position of interest groups on proposed changes
Endnotes
Contact Officer and Copyright Details

Passage History

Copyright Amendment (Digital Agenda) Bill 1999

Date Introduced: 2 September 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: On a date to be fixed by Proclamation or six months and a day after Royal Assent

Purpose

The Bill amends the Copyright Act 1968 (the Copyright Act) to take account of the ways in which new technologies, such as the Internet, allow copyright material to be used. The Bill extends copyright law into the electronic environment so that the same use of copyright material may be made with new technologies in that environment, as is currently made.

Background

Copyright and the Digital Environment

In a recent publication, the Attorney-General's Department defined copyright in the following terms:

Copyright is a type of property that is founded on a person's creative skill and labour. It is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. ... It is a bundle of exclusive economic rights to do certain acts with an original work or subject matter. These rights include the right to copy, publish, broadcast and publicly perform the copyright material.(1)

The exclusive economic rights listed above - to copy, publish, broadcast and publicly perform - relate to the main 'acts' which a creator may wish to control in relation to his or her material.(2) This has been the legal position since the Copyright Act came into effect in 1969. Indeed, that list of rights has, until recently, adequately covered all the possible acts that a creator may wish to control in relation to his or her material.

The advent and use of new technologies over the past decade have meant that there are now a number of new 'acts' which can be done in relation to material, particularly when it is in electronic form. For example, it is now possible to make material available on the Internet, and to scan material into computers for searching and electronic distribution. These new acts form the subject of the digital agenda.

The term 'digital' has a somewhat loose meaning in the context of copyright law. Traditionally, 'digital' has been contrasted with 'analog', each term describing the way in which information is expressed at a microscopic, electronic level.(3) In the context of copyright law, 'digital' may also be contrasted with 'print-based' or '(human-readable) hard-copy', each term again describing the way information is expressed, but at a macroscopic level. In this sense, 'digital' means 'electronic'. Thus the digital agenda is concerned with the new acts that can be done in relation to material in electronic form. Often these acts rely on technology that is digital in the traditional sense.

The right to do these new acts is not presently part of the bundle of rights called copyright under the Copyright Act. The Bill recognises the new acts that can be done in relation to material in electronic form, including the act of converting material from print into electronic form. The Bill regulates who may do those 'acts', and in what circumstances. For this reason, the Bill is claimed to implement the most comprehensive package of reforms to Australian copyright law since the enactment of the Copyright Act.(4)

Policy issues involved in copyright law

As the extract on page 1 from the Attorney-General's Department explains, the Copyright Act bestows important exclusive rights on a creator of material, who is the owner of the copyright in the material. This is done as a reward for his or her skill and labour in creating the material, and in order to foster creative endeavour in the community.

Giving copyright owners the exclusive right to control most 'acts' in relation to their material potentially empowers copyright owners to lock up their material, by withholding all access, or making access available only on unreasonable terms. However, the Copyright Act provides a number of qualifications to the copyright owner's exclusive rights to ensure that reasonable access to copyright material continues, especially for students, educational institutions, archives and libraries.

These then are the two competing public interests involved in copyright law, as was recognised in the Spicer Report (1959), a precursor to the Copyright Act itself:

The primary end of [copyright law] is to give the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright is in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered.(5)

The same public interests are echoed by the Attorney-General in his Second Reading Speech:

The central aim of the Bill ... is to ensure that copyright law continues to promote creative endeavour, and at the same time, allows reasonable access to copyright material in the digital environment. (6)

Scholars agree that at base, copyright law is attempting to effect a balance between the owners of copyright material and those who wish to use the material.(7) A key question on the digital agenda therefore is: what is the appropriate balance between copyright owners and users in the electronic environment? More specifically in the context of the Bill, is the existing balance, struck in the print environment and embodied in the Copyright Act, appropriate also in the electronic environment? The Government has answered this question in the affirmative.

History of the Copyright Amendment (Digital Agenda) Bill 1999

Preliminary reports and consultation

The potential impact of digital technology on the balance between copyright owners and users of copyright material has been the subject of examination by the Federal Government since 1994, when the Copyright Convergence Group published its report, Highways to Change - Copyright in the New Communications Environment.(8)

In July 1997, the Attorney-General's Department and the Department of Communication and the Arts released a discussion paper entitled Copyright Reform and the Digital Agenda. This was followed in April 1998 by the Ministers' announcement that the Government would implement the digital agenda copyright reforms. In February 1999 an exposure draft of the Copyright Amendment (Digital Agenda) Bill 1999 was released. The Bill as introduced in Parliament on 2 September 1999 has been substantially amended in response to submissions received on the exposure draft.

Advisory reports and on-going review

On 6 December 1999 the House of Representatives Legal and Constitutional Affairs Committee tabled its advisory report on the Bill.(9) The report recommends a number of changes to the Bill, the most significant of which is the introduction of a right to first digitisation. Although evidence to the Committee and the Committee's report is referred to in the Digest, no attempt has been made to provide a comprehensive summary of the report.

The Senate Standing Committee for the Scrutiny of Bills has also commented on the Bill, specifically in relation to the new enforcement provisions (see below).(10)

The Copyright Law Review Committee (CLRC) has now released both parts of its report, Simplification of the Copyright Act.(11) The report is the result of a general review of the entire Act, with the aim of proposing measures to streamline the Act and make it more user-friendly. The Government has yet to respond to the CLRC's report. Its response will impact on the reforms introduced by the Bill.

Finally, the responsible Ministers have announced that the reforms introduced by the Bill should be reviewed after three years. This is because the Bill is in some respects entering into uncharted waters.(12)

International trends

The Government claims that the reforms in the Bill are consistent with the international standards embodied in the World Intellectual Property Organisation (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty.(13) The Bill is part of an international response to the WIPO treaties. In October 1998, the US Congress passed the Digital Millennium Copyright Act. In May 1999 the European Parliament and Council adopted a Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society.

Key Concepts in the Copyright Act 1968

In keeping with the approach taken in the discussion of policy issues, the Copyright Act will be analysed in terms of the exclusive rights it grants to copyright owners, and the qualifications or exceptions to those rights that it provides.

An analysis in terms of rights may give the impression - albeit false - that the rights of copyright owners is the prime concern of copyright law. This is in fact not the case; as noted above, copyright law seeks to strike a balance between the rights of copyright owners and users. It is rather that focussing on the rights of copyright owners is a convenient way to explain the way that the Copyright Act operates.

Exclusive Rights

The table below (which is modelled on a table in the CLRC's report(14)) provides a summary of the exclusive rights that currently belong to copyright owners. The table also indicates how those rights are modified by the Bill (see shaded portion).

What can a copyright owner do with his or her material under the Copyright Act 1968?

Rights included in copyright

Part III - Works

Part IV - Other Subject Matter

Literary dramatic musical

Artistic

Sound recordings

Cinematograph films

Broadcasts

To reproduce in material form (to copy)

4

4

4

4

4

To perform in public

4

 

4

4

 

To publish

4

4

 

 

 

To make an adaptation

4

 

 

 

 

To do any of the above in relation to an adaptation

4

 

 

 

 

To enter into a commercial rental agreement

4

 

4

 

 

To broadcast

4

4

4

4

4

To cause to be transmitted to subscribers to a diffusion service

4

 

4

 

 

To communicate

4

4

4

4

4

This table shows, in relation to each type of copyright material, the exclusive rights that belong to the copyright owner under the Copyright Act. The shading indicates how those rights are affected by the Bill: the right to broadcast will be altered, the right to transmit to subscribers to a diffusion service will be deleted, and a right to communicate will be introduced.

Many of the terms in the above table, such as 'material form', 'publish' and 'broadcast', have technical definitions. However, none of them encompass the act of making material available on-line through the Internet. Nor is it certain that the existing rights cover the act of making an electronic version from a hard-copy version of material. Since these two acts are crucial in the electronic environment, the introduction of rights to do these acts are at the centre of the digital agenda.

Exclusive rights in the digital environment

Making material available on-line

The Bill extends copyright to the act of making material available on-line through the Internet by introducing a right to communicate, by removing the cable diffusion right and by making consequential amendments to the definition of 'broadcast'. (For more details, see the section entitled 'Right of Communication' in the Main Provisions of this Digest.)

Converting material from electronic to hard-copy and vice versa

The Bill clarifies that copyright covers the conversion of hard-copy versions of material into electronic versions, and vice versa. (For more details, see the section entitled 'Reproduction' in the Main Provisions of this Digest.)

Exceptions

The exceptions to the exclusive rights of copyright owners are as important as the rights themselves. The scope of the exceptions affects the balance that the Copyright Act strikes between the interests of copyright owners and users.

The Copyright Act contains a number of exceptions to the right of reproduction, some of which allow for reproductions of copyright material to be made free of charge, and others which require users to remunerate copyright owners. The free exceptions employ the concepts of 'fair dealing' and 'reasonable portion', which are discussed below. The remunerated exceptions apply to educational and other institutions, and operate by means of statutory licence schemes, also described below.

Fair dealing' and the 'reasonable proportion test'

In Australia and other common law countries, 'fair dealing' with copyright material is permitted for purposes such as research or study, criticism or review and reporting of news (sections 40-43, 103A-103C). In 1980, in response to concerns that photocopying technology would aid the infringement of copyright in literary, dramatic and musical works,(15) a quantitative measure to define a 'fair dealing' was introduced into the Copyright Act. Copying is deemed to be a 'fair dealing' if a copy constitutes a 'reasonable portion' of the work. Currently a 'reasonable portion' means 10% or one chapter of a literary dramatic or musical work published in an edition of more than 10 pages.(16)

Exceptions for libraries and archives

The Copyright Act contains specific exceptions to allow libraries and archives to do the following:

  • copy works and unpublished sound recordings to supply to individual users for research and study purposes (sections 49 and 110A); and
  • copy works to supply another library for the purposes of inclusion in that library's collection or to enable that library to supply the copy to a user who requires it for his or her research or study (section 50).

These exceptions support the fair dealing for research and study exception in that they allow a librarian to assist a user to obtain material that the user requires for his or her study. In addition, other exceptions allow libraries and archives to do the following:

  • copy manuscripts and other original material for preservation purposes and for the purposes of replacement of published material which has been lost, stolen or damaged and which is no longer commercially available (sections 51A and 110B).

Exceptions for educational institutions

In 1980 statutory licensing schemes were introduced into the Copyright Act to enable educational institutions and institutions assisting people with print and intellectual disabilities to take advantage of photocopying technology in their teaching methods. The schemes, contained in Parts VA and VB of the Copyright Act, allow institutions to copy works(17) and transmissions(18) respectively, on payment of remuneration to collecting societies who represent the copyright owners. The Act does not prescribe the basis or amount of remuneration payable; this is determined by negotiation between the institutions and the collecting societies. If the parties cannot agree on the amount of remuneration payable or the appropriate basis to determine this, then the parties can take the matter to the Copyright Tribunal.

The statutory schemes require an institution to keep records of the copying that is done at that institution. Following amendments in 1989, an institution now has a choice of two record keeping systems: full records or a sampling system.

Extending the existing exceptions

This Bill seeks to extend the existing exceptions for libraries and archives into the electronic environment. The Attorney-General explained the Government's policy in his Second Reading Speech by saying that:

As far as possible, the proposed exceptions replicate the balance that has been struck in the print environment between the rights of owners of copyright and the rights of users. The extension of this balance into the digital environment was one of the fundamental principles underlying the 1996 WIPO treaties.(19)

The Bill does this by confirming that fair dealing applies to material in electronic form and to the communication right. It also seeks to clarify the meaning of a 'reasonable portion' when copying from certain works in electronic form. The Bill also introduces a new definition of 'library' that excludes libraries attached to organisations that are run for profit (other than educational institutions). Such libraries will not be able to use the library exceptions. (For more information, see the section entitled 'Amendments affecting libraries and archives' in the Main Provisions of this Digest.)

The Bill extends the statutory licence scheme for educational institutions, so that it applies to works in electronic form. The Bill introduces a third record keeping system, known as an 'electronic use notice', that applies in respect of works in electronic form. For more information, see the section entitled 'Amendments affecting libraries and archives' in the Main Provisions of this Digest.

New topics addressed by the Copyright Amendment (Digital Agenda) Bill 1999

The Bill contains a number of provisions dealing with matters related to copyright law. These include:

  • preventing the manufacture and supply of devices designed to aid infringement of copyright in the electronic environment (the new enforcement provisions);
  • preventing the manufacture and supply of broadcast decoding devices used to commit pay TV piracy;
  • providing remuneration to the owners of the copyright in works, films and sound recordings when free-to-air programs containing the works, films and sound recordings are shown on pay TV;
  • clarifying the circumstances in which carriers and carriage service providers, including Internet Service Providers (ISPs), will be held liable for infringements of copyright that occur on their facilities.

The background to each of these matters will be explored in turn.

New Enforcement Provisions

When considering the need for new enforcement provisions, it must be borne in mind that the electronic environment differs from the print or hard-copy environment in at least one important respect. In the electronic environment, there is a far greater potential for copyright to be infringed. This is because material in electronic form can be copied and distributed far more efficiently than material in hard-copy form. The potential for the making and communication of unauthorised copies in the electronic environment is limitless. Therefore, there is practically no way that infringement of copyright can be effectively policed in the electronic environment.

For this reason, copyright owners are increasingly using protection measures to regulate access to, and use of, their material in electronic form. A protection measure can be a complex electronic device yet it can also be as simple as, for example, a password, that prevents access to a file for certain users. The value of a protection measure is that it only allows authorised use of the copyright material to which it is attached. Protection measures help do away with the need to police the use of copyright material.

Devices have been developed in order to circumvent protection measures. A circumvention device enables a person to remove or disable the protection measure attached to copyright material, so that they can use the material as they wish. Circumvention devices therefore aid copyright infringement.

Another way in which copyright owners are protecting their material in the electronic environment is attaching to it information identifying themselves as owner, and/or the terms and conditions on which the material may be used. Such information is called rights management information (RMI).

The WIPO treaties oblige signatory states to provide legal protection against the circumvention of protection measures and the removal and alteration of RMI. The Bill introduces criminal sanctions and civil remedies for making or commercially dealing in, circumvention devices. The Bill also provides sanctions and remedies for removing or altering RMI or commercially dealing in material with RMI removed. The Explanatory Memorandum states that:

The Bill will be a major step towards aligning Australia's copyright laws with the obligations prescribed by the new WIPO treaties.(20)

The new enforcement provisions-both the civil remedies and the criminal sanctions-target activities in the commercial and public spheres. The provisions reflect the Government's view that the greatest threat to the commercial interests of copyright owners is posed by commercial dealings in circumvention devices and in works whose RMI has been removed. For example, the Government has focussed on preparatory acts for the circumvention of protection measures, rather than on the act of circumventing protection measures itself: the provisions proscribe manufacture, importation and sale of circumvention devices, but not their use.(21) The Government acknowledges that a ban on circumvention devices would necessitate intervention into the private sphere, something which it seems reluctant to do.

Measures to prevent pay TV piracy

Pay TV broadcasts are encrypted. Subscribers gain access to services by means of reception equipment which decodes the signal. It is possible however to purchase unauthorised decoding equipment. There is currently no effective legal recourse against signal piracy.(22) Unauthorised reception of a broadcast does not amount to an infringement in the copyright in the encrypted signal.

In order to discourage commercial dealings in unauthorised decoding devices the Bill provides civil and criminal penalties. It does not however prohibit or provide a civil remedy for the personal use of broadcast decoding devices.

Re-transmission of free-to-air broadcasts

In 1996 the Full Federal Court held in Amalgamated Television Service Pty Ltd & Ors v Foxtel Digital Cable Television Pty Ltd & Anor (the Foxtel case)(23) that simultaneous and unaltered cable re-transmissions of free-to-air (FTA) television services are permitted under the current provisions of the Broadcasting Services Act 1992 and the Copyright Act.(24) As a result of the decision, pay TV licensees continue to re-transmit FTA television without compensating copyright owners or seeking the permission of FTA broadcasters.

It should be noted that retransmissions of television broadcasts involves two distinct copyright issues:

  • that relating to the broadcast signal copyright, and
  • that relating to the underlying copyright holders whose material is transmitted and re-transmitted.

In relation to the first issue, the Bill overturns the decision in the Foxtel case and recognises that broadcasters have a copyright in their signal.(25) In relation to the second issue, the Bill provides a statutory regime to provide underlying copyright holders with equitable remuneration for the use of their material. The regime includes an arbitration mechanism in the event that retransmitters and copyright owners cannot agree on equitable remuneration. (For more information, see the section entitled 'Retransmission of free-to-air broadcasts' in the Main Provisions of this Digest.)

Carrier and ISP liability

In Telstra v Australian Performing Right Association(26) (the 'music on hold' case) the High Court considered whether Telstra had breached the Copyright Act by participating in the provision of music to telephone users who were 'on hold'. Telstra was held to be liable for infringements of copyright even where they had no control over content but were only operating as a carrier.(27)

The decision also caused some concern about the liability of Internet Service Providers (ISPs), that is bodies that provide Internet access. In 1996 the Australasian Performing Right Association (APRA) sent a letter to all ISPs claiming that its diffusion right had been infringed and demanded $1 per subscriber. A test case was commenced against OzEmail. Although the matter was settled out of court, academic opinion suggests that APRA stood a good chance of success based upon the Telstra precedent.(28)

In the wake of the decision, carriers and ISPs expressed concern to the government about their liability for copyright infringements by their customers. The general law on liability for the authorisation of copyright has been expounded in University of New South Wales v Moorehouse(29) (Moorehouse's case) and subsequent decisions. The Bill seeks to clarify the circumstances in which carriers and ISPs will be held liable: they will not be liable for infringements by their customers simply because the infringements occurred using their facilities.

Temporary Reproductions

ISPs have also been concerned about infringement because of the temporary copies that are made in the course of technical processes of transmission and browsing on the Internet. The Bill provides an exception from copyright infringement where temporary reproductions are made in the course of the technical process of electronic transmissions. Incidental copies made in the course of browsing on the Internet will not be a breach of copyright.

Main Provisions

Right of Communication

Item 6 introduces a new definition of 'communicate', which encompasses the following acts:

  • making material available online through the Internet, and
  • electronically transmitting material, whether through material substances (for example, telephone cables and optical fibres) or otherwise (for example, via electromagnetic waves - 'wireless telegraphy'). (30)

The second part of the definition describes acts that are currently encapsulated in the right to broadcast and the right to transmit to subscribers to a diffusion service (the cable diffusion right). The introduction of the right to communicate therefore makes these existing rights redundant.

Item 37 adds to the list of exclusive rights that comprises copyright in respect of literary, dramatic, musical and artistic works, contained in section 31 of the Copyright Act, the right to communicate the work. Item 35 removes the existing broadcast and cable diffusion rights from that list. Items 81-83 make similar amendments to the list of rights in respect of sound recordings, cinematograph films and television and sound broadcasts.

Although the right of communication in effect replaces the right to broadcast, it is necessary to retain a definition of 'broadcast' in the Copyright Act. The Explanatory Memorandum states that this is necessary because:

the Government has decided to retain most of the existing statutory licences and exceptions in the Act in relation to broadcasting and not extend these licences to apply in relation to communication.(31)

In order that the existing statutory licences and exceptions continue to operate, the definition of 'broadcast' needs to be widened. Item 1 achieves this by cross-referencing the definition of 'broadcast' with that contained in the Broadcasting Services Act 1992. A 'broadcast' is thus a communication delivered by a 'broadcasting service' as defined in s. 6 of the Broadcasting Services Act, namely, a service that delivers, by diverse means, television or radio programs.

Reproduction

Item 23 clarifies the meaning of the term 'reproduction' with respect to works that are stored in electronic form. New section 21(1A) provides that the conversion of a work to or from a digital form is a reproduction of the work. This clarification of the definition helps to ensure that the existing balance between the interests of copyright owners and users is carried over into the electronic environment, and that the two environments (print and electronic) are treated equivalently.

Amendments affecting libraries and archives

Definition of 'library' and 'archive'

Item 11 adds a definition of 'library' which makes a distinction between libraries that are attached to businesses run for profit (other than educational institutions) and libraries in a non-profit sector. The effect of this amendment will be to ensure that libraries attached to industry, business and for profit organisations (for example, private hospitals, law firms and financial institutions) will not be able to rely on the exceptions conferred by sections 49, 50 and 51A of the Act. These exceptions enable non-profit libraries in certain specified circumstances to make a copy of a journal article or a reasonable portion of a work for the purpose of research or study by a library user (section 49), to request or provide a copy of a work to another library (section 50), and to copy works for preservation (section 51A), without infringing copyright. This change is also brought about by the repeal of section 18 of the Act (item 22), and the repeal of sub-sections 49(9) (item 57) and 50(9) (item 66). These sub-sections are made redundant by the new definition of 'library'.

Section 10(4) of the Copyright Act contains a definition of 'archive'. Item 21 adds a note to this section giving museums and galleries as examples of bodies that could have collections covered by the definition of 'archives'. As a consequence, museums and galleries will be able to make digital copies of works in their collections for preservation purposes and communicate these to the public at terminals within their premises (see the section entitled 'Reproduction of works for preservation purposes' below).

Reasonable portion and fair dealing

Items 19 and 20 deal with what is a 'reasonable portion' when copying works in electronic form. The effect of item 19 is to exclude computer programs from the works that can be copied under the reasonable portion test. This recognises that to copy 10% of a computer program could result in reproducing a significant amount of code. Copying of computer programs for the purpose of decompilation is allowable under sections 47B-47G of the Copyright Act for the purposes of achieving interoperability, correcting errors and testing the security of programs or the networks of which they are a part. In addition, section 43A allows people who have bought computer software to copy the program for back-up purposes.

Item 20 applies to literary works and dramatic works which are published in electronic form. The effect of this provision is to apply a similar quantitative test to reproductions made from electronic works as that which currently applies to copies made from printed literary and dramatic works. New subsection 10(2A) provides that no more than 10% of the number of words in, or no more than one chapter of, certain electronic works will be considered a reasonable portion. The new subsection does not apply to artistic or musical works in electronic form. Multiple copying is expressly excluded. The amendments make it clear that it is not fair dealing to copy a reasonable portion from an electronic version of a work and then to copy another reasonable portion from the printed version of the same work (new subsection 10(2B)). Neither is it fair dealing to copy more than one reasonable portion from the same work (new subsection 10(2C)).

Liability of libraries and archives for infringing copies made on machines installed in libraries or archives

Section 39A establishes that libraries and archives are not taken as having authorised the making of infringing copies by users of photocopying machines provided that they display a copyright warning notice near the machines. The effect of item 41 is to apply the existing principles to infringing copies made by users of computers provided by the library or archives. (Item 90 inserts a new subsection 104B to the effect that a library or archive providing electronic access to audio-visual material(32) will not be taken to have authorised the making of infringing copies if a notice bringing the copyright warning provisions of the Act to the attention of users is put up near the computer terminal.)

Supply of electronic works by libraries and archives to their users

The purpose of item 48 is to enable libraries and archives to use new technologies to provide access to copyright material for their users for the purpose of research or study. The amendments in items 49-66 have the effect of allowing libraries and archives, in specified circumstances, to supply electronic copies of works, or parts of works, in response to user requests.

Items 49 and 51 restrict the library or archive to supplying a printed or electronic copy from a work that is already held in the collection of a library or archives. These amendments should not alter the present situation when a library or archive is asked to supply a copy from a printed work. However, the situation is likely to be different for articles included in periodicals published in electronic form. For example, a library may subscribe to an electronic journal which is accessed through the Internet. The library pays the publisher a fee which allows a certain number of hours access and a certain amount of material to be reproduced. One implication that may be drawn from item 56 is that subscribing to an electronic journal in this way is equivalent to holding the work in the collection of a library or archive although the Bill does not seem to make this explicit.

Item 56 requires libraries to destroy the electronic copies of material they have acquired for users. The intention of this subsection is to prevent libraries and archives from creating electronic databases of articles or works as a result of providing such material to their users. Item 54 requires that when a library or archive does acquire material in electronic form, and makes it available online within its own premises, a user may only print out a hard-copy of the material, in accordance with the fair dealing provisions. It is conceivable that the arrangements with the publisher under which the library or archive purchases or accesses material in electronic form, will allow a broader use of the material than the Bill specifies.

Supply of electronic works to other libraries and archives

The Bill draws a distinction between inter-library supply of reasonable portions of works and articles in hard-copy and in electronic form (item 64). It does not extend the same library exceptions from the print to the electronic environment in recognition that copyright material in electronic form may be more easily, cheaply and conveniently disseminated than printed publications.

Item 64 inserts a new subsection 50(7B) requiring libraries and archives to seek to purchase an electronic copy of a work, rather than to request a copy from another library or archive that holds the work in its collection. The 'commercial availability test' applies to all requests for electronic works regardless of the amount required. An exception is made for Parliamentary libraries assisting a member of Parliament in the performance of his or her duties.

The operation of this provision may depend upon whether portions of works and articles in electronic form will be the basis for online markets in these materials. Libraries are concerned that electronic publishers will choose to sell whole works and not portions of them. They have argued that they could be required to buy an entire electronic work when all the user needs is a small part of the work. Copyright owners argue that the stricter commercial availability test that is proposed will better remunerate authors and publishers of electronic works.

Reproduction of works for preservation purposes

Items 75-78 amend section 51A to enable archives, including certain galleries and museums which have original artistic works in their collections, to make electronic reproductions for the purpose of preserving the original against loss or deterioration. Item 75 inserts a new subsection 51A(3A) allowing these galleries to make the electronic preservation versions available for viewing by the public at computer terminals within the gallery. No copies are permitted to be made from the terminals.

Amendments affecting educational institutions

Items 105-123 amend Part VA to replace the term 'transmission' with the term 'broadcast'. This follows the proposed amendment in item 1.

Part VB of the Copyright Act contains a statutory licence scheme for educational institutions and institutions assisting people with a print or intellectual disability to reproduce and make available copyright works. The amendments to Part VB (items 124-199) extend the existing scheme into the electronic environment. This is done principally by item 151, which introduces a new Division 2A, dealing with the reproduction and communication of copyright material in electronic form. The provisions in new Division 2A are modelled on those that apply to material in print form (sections 135ZG-ZM).

New section 135ZMC deals with articles from periodicals which are in electronic form. It enables educational institutions to make multiple reproductions of electronic articles, provided that the following three conditions are met:

  • a remuneration notice is in force, and
  • the reproduction is made solely for educational purposes, and
  • the institution complies with the appropriate marking and record keeping requirements.

New section 135ZMD enables educational institutions to make multiple reproductions of literary, dramatic, musical or artistic works that are in electronic form, provided that the same three conditions are met. An additional condition must be met if the electronic work has been separately published. New section 135ZMD(2) requires educational institutions wishing to reproduce the whole or more than a reasonable portion of an electronic work (or more than 10% of a musical work which is in electronic form), to first investigate whether the work is still available, electronically, at an ordinary commercial price.

New Division 2A employs a new type of record keeping system, known as an 'electronic use notice' (item 125), which is to apply to works in electronic form.

The amendments to Part VB maintain a distinction between works which are in hard-copy or analog form, to which the existing provisions will continue to apply, and works which are in electronic or and digital form, to which the new provisions in Division 2A will apply.

In order to work out which provisions apply, educational institutions will have to consider the form of the original work (whether hard-copy or electronic) and the form of the reproduction (hard-copy or electronic). If a photocopy is made from a printed journal, then the existing system will apply. If an electronic copy is made from an electronic journal, then new Division 2A, with its electronic use notice, will apply. However, if a printed journal article is scanned into a database, then the amount that can be copied will be determined by the existing scheme and the remuneration by the new Division 2A. If an article in electronic form is printed out in hard-copy, the amount that can be printed will be regulated by new Division 2A, and the remuneration by the existing print system.

New Enforcement Provisions

Items 98-103 introduce a raft of new enforcement provisions into Part V of the Copyright Act, that deals with remedies and offences. The new enforcement provisions in Part V must be read in conjunction with the new definitions inserted by item 4 into section 10 of the Act.

A key definition for the purposes of Part V is that of 'circumvention device'. The Bill defines it as a device which has only a limited commercial purpose or no purpose other than the circumvention or facilitating the circumvention, of an effective technological protection measure. In turn, an effective technological protection measure (ETPM) is a device or product designed to prevent or inhibit the infringement of copyright subsisting in any work or other subject matter.

'Electronic rights management information' (RMI) is defined as information attached to, or embodied in, a copy of a work or other subject matter that identifies the work or subject-matter and its author or copyright owner, and identifies or indicates some or all of the terms and conditions on which the work or subject matter may be used. The definition also includes numbers or codes that represent the information in an electronic form.

Item 98 inserts new Division 2A which provides civil remedies in relation the circumvention devices and electronic rights management information.

New section 116A entitles a copyright owner to bring an action against a person if a work or other subject matter is protected by an effective technological protection measure and, without the permission of the copyright owner or licensee, a person:

  • makes a circumvention device capable of circumventing, or facilitating the circumvention of an effective technological protection measure
  • makes commercial dealings in a circumvention device
  • imports a circumvention device into Australia for the purpose of commercial dealings
  • makes a circumvention device available online to an extent that will affect prejudicially the owner of the copyright, or
  • provides a circumvention device capable of circumventing, or facilitating the circumvention of an effective technological protection measure.

A further element of the section is that the person knew or ought to have known, that the device or service would be used to circumvent an ETPM (new subparagraph 116A(1)(c)). Under new paragraph 116A(6) the burden of proof in relation to this matter rests with the defendant. It will be presumed that the defendant had the requisite intent unless the defendant proves otherwise.

As noted above, no cause of action results from the use of a circumvention device.

The section sets out a number of exceptions to the enforcement measure provisions.

Acts lawfully done for law enforcement or national security purposes on behalf of the Commonwealth, a State or Territory, or an authority of the Commonwealth, a State or Territory are not subject to the operation section.

New subsections 116(3) and (4) provide that the section does not apply where the supply, making or importation of a circumvention device occurs in relation to a permitted purpose.

New subsection 116(7) sets out the requirements of a 'permitted purpose'.

Permitted purposes will include:

  • reproducing computer programs to make interoperable products, to correct errors and for security testing under sections 47D, 47E and 47F
  • copying by libraries and archives for users under section 49
  • copying by libraries and archives for other libraries and archives under section 50
  • copying by educational institutions and institutions assisting people with a print or intellectual disability (Part VB), and
  • use of copyright material for the services of the crown under section 183.

New section 116B provides copyright owners or their licensees with a civil remedy against a person who removes or alters RMI without the consent of the owner or licensee.

It must also be shown that the person knew or ought reasonably to have known that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject matter. As with new section 116A, the burden of proof in relation to this matter rests with the defendant. New subsection 116B(3) provides that it will be presumed that the defendant had the requisite intent unless the defendant proves otherwise.

New section 116C provides copyright owners and licensees with a cause of action against a person who distributes, imports or communicates a copy of a work or other subject matter in circumstances where the RMI has been removed. The person must have known that the RMI had been altered or removed without permission. Further, the person must have known or ought reasonably to have known that the removal or alteration would induce enable, facilitate or conceal an infringement of the copyright in the work or other subject matter. The knowledge requirements will be presumed unless the defendant proves otherwise (new subsection 116C(3)).

The remedies available for actions in relation to circumvention devices and RMI are set out in new section 116D and include an injunction, damages or an account of profits.

New subsection 116D(2) makes clear that the Court may award punitive damages if, amongst other factors, the defendant's breaches of the law were particularly flagrant.

The limitation period applying to action brought under section 116A, 116B,or 116C is six years (item 103).

Item 100 amends section 132 to provide a range of criminal offences which generally correspond to the civil actions introduced in the new Division 2A. The proposed amendments prohibit:

  • the provision of circumvention service (new subsection 132(5B))
  • the manufacture of a circumvention device
  • commercial dealings in a circumvention device
  • the importation of a circumvention device into Australia for the purpose of commercial dealings, and
  • making a circumvention device available online to an extent that will affect prejudicially the owner of the copyright (new subsection 132(5C)).

Unlike the civil penalty provisions, the prosecution will bear the burden of proving that the defendant knew or was reckless as to whether the service will be used to circumvent, or facilitate the circumvention of, an effective technological protection measure.

As with the new section 116A, the prohibitions will not apply in relation acts done:

  • for law enforcement or national security purposes on behalf of the Commonwealth, a State or Territory; or an authority of the Commonwealth, a State or Territory, or
  • for a 'permitted purpose'.(33)

It will not be a criminal offence to use a circumvention device.

New subsections 132(5D) and (5E) prohibit the removal or alteration of RMI and commercial dealing with works whose RMI information has been removed or altered. They are the criminal counterparts to new sections 116B and 116C. The sections will not be breached if the person has the permission of the copyright owner or licensee. In a prosecution under new subsection 132(5D) and (5E), the Crown has the burden of proving the requisite intent.

Penalties for the contravention of subsections 132(5B)-(5E) are provided by item 101. Breach of these sections is an indictable offence punishable by a fine of up to 550 penalty units (currently $60,500) or a maximum of five years imprisonment. If the offence is heard and determined summarily, a maximum fine of 250 penalty units and 12 months imprisonment applies.

Measures to prevent pay TV piracy

New Part VAA (inserted by item 104) seeks to protect the subscription television industry from 'signal piracy'. The new part applies only to encoded broadcasts. This term is defined in new section 135AL in such a way as to limit it to broadcasts made by subscription broadcasters (i.e. pay TV operators) where access is restricted by a technical measure or arrangement.

In general terms, a broadcast decoding device is defined to be a device designed or adapted to enable a person to gain access to an encoded broadcast without the authorisation of subscription broadcaster.

The main operative provision is new section 135AN. A pay TV operator may bring an action against a person who without the permission of the pay TV operator:

  • makes a broadcast decoding device
  • commercially deals in a broadcast decoding device
  • imports a broadcast decoding device for the purpose of commercial dealing, or
  • makes a broadcast decoding device available online to the extent that will affect prejudicially the Pay TV operator.

It must also be shown that the person knew or ought reasonably to have known that the device would be used to enable a person to gain access to an encoded broadcast without authorisation. However new subsection 135AN(7) provides that the requisite intent will presumed unless the defendant proves otherwise.

Civil remedies available under section 135AN include an injunction, damages or an account of profits. In addition, the court has the discretion to award punitive damages.

New section 135AS mirrors section 135AN in providing that the manufacture and commercial dealings in broadcast decoding devices constitute a criminal offence.

In a prosecution under section 135AS, the Crown has to establish that the defendant knew or was reckless as to whether the device would be used to gain access to an encoded broadcast without authorisation.

A person convicted of contravening the section is liable to maximum penalty of 5 years in prison or a fine of 550 penalty units (currently $60,500).

Retransmission of free-to-air broadcasts

Item 86 inserts a new section 99 which provides that subject to other specified parts of the Copyright Act, the maker of a television broadcast or sound broadcast is the owner of any copyright subsisting in the broadcast.

This is the principal measure contained in the Bill dealing with the right of free-to-air (FTA) broadcasters to receive remuneration from pay TV operators for retransmssion of the signal. The Government has made a policy decision that the amount of remuneration is to be determined by the market.

Item 200 inserts new Part VC establishing a new statutory licence scheme in relation to the retransmission of FTA broadcasts. The Explanatory Memorandum states:

the statutory licence scheme will apply to the copyright in the underlying material (ie the works, sound recordings and cinematograph films included in a broadcast). The statutory licence is not intended to apply to the copyright subsisting in a free-to-air broadcast.(34)

The basic framework for the regime is contained in new section 135ZZK.

New subsection 135ZZK(1) provides that the copyright in a work, sound recording or cinematograph film included in a FTA broadcast is not infringed by the retransmission of the broadcast if:

  • a remuneration notice given by, or on behalf of the retransmitter to the relevant collecting society is in force, and
  • a FTA broadcast was made by a broadcaster specified in the remuneration notice, and
  • the retransmitter complies with the record system outlined in section 135ZZN.

There are number of concepts defined in proposed Part VC that are crucial to an understanding of the retransmission regime.

New section 135ZZL deals with remuneration notices. A retransmitter may by notice in writing to a collecting society undertake to pay equitable remuneration to the society for retransmissions of FTA broadcasts. The notice must state that the amount of equitable remuneration is to be assessed on the basis of records kept by the transmitter under new section 135ZZN. The record system must provide for a record to be kept of each retransmission of each broadcast made by each broadcaster specified in the remuneration notice.

The amount of equitable remuneration is to be determined by agreement between the collecting society and the retransmitter. If the parties are unable to reach agreement, the Copyright Tribunal will determine the amount of equitable remuneration (new section 135ZZM).

'Collecting societies' are defined in new section 135ZZT. The Attorney-General may by a notice in the gazette declare a body to a collecting for relevantly named copyright owners.

New subsection 135ZZT(3) sets out requirements that a body must meet in order to be eligible to be declared to be a collecting society. These include that:

  • it be an incorporated company limited by guarantee
  • all relevant copyright owners are entitled to be members
  • its rules prohibit payment of dividends to members, and
  • its rules contain other prescribed provisions protecting the interests of members such as collecting equitable remuneration and distributing amounts.

New section 135ZZZC establishes that owners of copyright in the underlying material included in a FTA broadcast can licence retransmissions outside the statutory regime.

Carrier and ISP liability

Items 26, 42 and 95 seek to deal with the difficulties that arose from the 'music on hold case' (see p. 10). As noted in the Background to this Digest, in that case Telstra was held liable for breach of copyright in music played by subscribers to its service.

New section 22(6) (item 26) provides that a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication. Thus, unless they are responsible for determining the content of a communication, ISPs and carriers will not be liable for any infringement of copyright that is caused by the communication.

New sections 39B (item 42) and 112E (item 95) provide that a carrier or ISP is not taken to have authorised an infringement of copyright merely because they provide the facilities which are used to do something that is not included in the copyright.

As part of its attempt to clarify the law as to when someone will be taken to have authorised an infringement of copyright, the Bill introduces a list of factors which must be taken into account when determining authorisation liability. The list, which is contained in new subsections 36(1A) (item 39) and 101(1A) (item 87), is a codification of the principles stemming from Moorehouse's case.(35) The factors included in the list include:

  • the extent (if any) of the person's power to prevent the infringement, and
  • the nature of the relationship between the person and the infringer, and
  • any reasonable steps (including complying with a relevant industry code of practice) that the person took to prevent the infringement.

Temporary Reproductions

Use of the Internet to access copyright material generally results in the temporary or incidental reproduction of the material on the computer's hard drive. Items 45 and 94 make an exception to the copyright owner's exclusive right to make reproductions of the material. New sections 43 and 111A provide that temporary reproductions made in the course of communication do not infringe copyright. The exception only applies if the temporary reproduction occurs as part of the technical process of making or receiving a communication. If the making of the communication itself is an infringement of copyright the defence does not apply.

Position of interest groups on proposed changes

The provisions of the Bill have received a large amount of attention from interested parties. Groups representing both copyright owners and users commented on the provisions in submissions and evidence to the House of Representatives Standing Committee on Legal and Constitutional Affairs in its inquiry into the Bill. Some of those comments are repeated here, as they provide a useful insight into some of the Bill's ramifications.

Fair dealing and 'reasonable portion test'

Representatives of copyright owners have expressed dissatisfaction with the continued use of a quantitative test (eg. one chapter, 10% of a work) to determine what is a reasonable portion and hence fair dealing in a digital environment. In submissions and evidence to the House of Representatives Legal and Constitutional Committee's inquiry into this Bill, the Australian Society of Authors and the Copyright Agency Limited (CAL) have argued that portions of digital works (such as chapters and articles) are significant commodities in an online market and that it is no longer fair to authors and copyright owners to allow such portions to be copied freely. CAL argues that:

authors and publishers want to trade in these copyright works, but won't be able to if libraries provide copies to readers at a cheaper rate (and without a copyright fee).

CAL suggests that a better approach would be to adopt a qualitative test to determine a reasonable portion. This might be done by looking in each case at the purpose and character of the copying and its effect on the market for the work, rather than prescribing how much of a document can be fairly copied in any circumstances. CAL and the Australian Society of Authors suggest that guidelines might be developed in consultation between the copyright owners and the users.(36)

Libraries, educational institutions and other users of copyright material that a qualitative test as proposed by CAL would be administratively unworkable.

They have argued that the existing quantitative test is easily determined and understood by users, and practical to administer. They contend that extending the quantitative test to the electronic environment, with the proposed modifications, protects the role of libraries to continue to provide access to information.

Both parties agreed that in future the use of electronic material will possibly be governed by licences negotiated between the publisher and the user. The terms of the licence may determine how much a user can copy. However, the existence of a reasonable portion test in legislation will assist libraries in negotiating the terms of licenses with publishers to ensure the continuation of fair dealing for specific purposes.(37)

Definition of 'library'

Library and consumer organisations appear to have been surprised by the proposed amendment. They have argued that the change will mean that public sector libraries will no longer be able to request inter-library loans of printed material from corporate library collections, and that important research collections will be inaccessible to researchers and other users outside the corporation. Law libraries in particular, are concerned that the changes will create significant extra cost and effort as licences will have to be obtained from CAL and, where copyright owners are not CAL members, they will have to be located and their consent obtained to copy their works.(38)

Copyright owners have argued that for-profit businesses have been able to take advantage of the library exceptions for the free use of copyright material and that this deprives copyright owners of a potential source of income.

These proposed changes are contrary to a recommendation, made in 1998, by the Copyright Law Review Committee (CLRC), that all libraries, whether they are conducted for profit or not, should be permitted to rely on all the library provisions regulating royalty-free copying. The CLRC argued that the limited extent of royalty-free copying permitted by the Copyright Act stands in contrast to the exclusive rights of publishers as copyright owners or licensees.(39)

The model adopted by the United Kingdom legislation may offer a compromise. Under the UK Copyright, Designs and Patents Act 1988 regulations are made which prescribe those libraries which may copy works for research and study purposes. Currently prescribed libraries include public libraries, and libraries in government organisations and educational institutions. Any library conducted for profit or which forms part of or is administered by a body established or conducted for profit, is not a prescribed library. Nevertheless, all libraries, not just prescribed libraries, may make and supply to a prescribed library a copy of an article in a periodical or the whole or part of a published work.(40) A similar provision may satisfy the concerns of the Australian library community that inter-library lending arrangements are threatened by the proposed changes.

Part VA Copying of radio and television broadcasts

In hearings before the House of Representatives Legal and Constitutional Affairs Committee it was submitted that the Bill does not include any statutory license for the new right of communication for broadcasts. The Australian Vice Chancellors' Committee and the statutory collecting agency (Screenrights) both commented that, under the proposed legislation, universities and schools can copy broadcasts, but they cannot make them available electronically to students to view in classrooms or to access and view in libraries. They have suggested that the same provisions on the right to communicate which are proposed for Part VB of the Act should also apply in Part VA.(41)

Record keeping requirement in Part VB

Educational institutions are opposed to the introduction of a separate electronic use notice. They argue that the Bill, as it is presently drafted, provides for a multiplicity of statutory licences to do one thing: that is, 'to copy and make available material for educational use'.(42) CAL supports the arguments about the complexity and difficulty of administering multiple schemes. (43)The Government's policy is that a system of electronic use notices avoids the technology-specific requirements of the current record system and sampling system.(44) It would allow a different fee to be set for copying works that are in electronic form.

Temporary reproductions

Universities are concerned that the right of communication introduced by the Bill will result in them having to pay every time a student accesses material which the university has stored electronically. They argue that with printed works, the student can look at a copy in the university library and make a photocopy of a reasonable portion of it. In the digital environment, a university will make works available electronically for students to read or browse or copy in reasonable portions.(45) However, universities say that they can only do this under the proposed amendments if they exercise the new right of communication which resides with the copyright owner (item 35), and that they will then have to pay a royalty every time a student looks at the material.

At the hearings of the Legal and Constitutional Affairs Committee on 14 October 1999, a spokesperson for the Australian Vice-Chancellors' Committee suggested a saving provision that says 'to the extent that a university is merely making available [a work] to enable students to browse, read or exercise fair dealing rights, that is not a remunerable communication'.(46)

CAL's view is that browsing on-line works is a use of copyright material and that it should not be permitted for free. They argue that if a university makes available a work for browsing by a student, they are facilitating the student's access to that copyright material in a systematic way. This use should be taken into account when the fee that the university should pay in royalties is set.(47)

Endnotes

  1. Attorney-General's Legal Practice, Copyright Law in Australia: A Short Guide, Office of Legal Information and Publishing, 1996.
  2. Material' is used here to mean both literary, dramatic, musical or artistic works, which are dealt with in Part III of the Copyright Act, and other subject matter, which is dealt with in Part IV of the Copyright Act, and includes sound recordings, cinematograph films, television and sound broadcasts and published editions of works. The distinction in the Copyright Act between works and other subject matter, which are sometimes referred to as authored subject matter and derivative subject matter respectively, has arisen as a result of the historical development of copyright law.
  3. Digital technology employs information expressed in patterns of ones and zeros, whereas analog technology uses a continuously varying electrical signal. See Matthew James, 'Broadband Convergence on the Digital Information Superhighway', Department of the Parliamentary Library, Background Paper No 24 1994.
  4. Hon Daryl Williams, 'Second Reading Speech', Copyright Amendment (Digital Agenda) Bill 1999, House of Representatives, Parliamentary Debates, 2 September 1999, p. 9748.
  5. Report of the Committee appointed by the Attorney General of the Commonwealth to consider what alterations are desirable to the Copyright law of the Commonwealth, AGPS, Canberra, 1959 (the 'Spicer Report'), p.
  6. Hon Daryl Williams, 'Second Reading Speech, Copyright Amendment (Digital Agenda) Bill 1999, op.cit., p. 9749.
  7. F Macmillan, 'Adapting the Copyright Exceptions to the Digital Environment', Digital Technology Law Journal, Vol 1, No 2, July 1999.
  8. Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment, Attorney-General's Legal Practice, August 1994.
  9. The report is available on the Committee's webside: http://www.aph.gov.au/house/committee/laca/digitalagenda/contents.htm.
  10. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 14 of 1999, 22 September 1999.
  11. Part 1 of the report was released in September 1998 and Part 2 was released in February 1999, just after the exposure draft of the bill.
  12. AGD e-news on Copyright, Issue 7, April 1999.
  13. Hon Daryl Williams 'Second Reading Speech', Copyright Amendment (Digital Agenda) Bill 1999, op. cit., p. 9749.
  14. CLRC, Simplification of the Copyright Act 1968: Part 2 Categorisation of Subject Matter and Exclusive Rights, and Other Issues, February 1999, pp. 19-20.
  15. Copyright Law Committee on Reprographic Reproduction, Report, AGPS Canberra, 1976 (the 'Franki Committee').
  16. Section 10(2) of the Copyright Act 1968.
  17. Part VB of the Copyright Act.
  18. Part VA of the Copyright Act.
  19. 'Second Reading Speech', Copyright Amendment (Digital Agenda) Bill 1999, House of Representatives, Debates, p. 9748-9.
  20. Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999, Outline.
  21. Joint Submission from the Attorney-General's Department and the Department of Communications, Information Technology and the Arts to the House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry into the Copyright Amendment (Digital Agenda) Bill 1999, p. 20.
  22. Bamford, M. 'Stopping Signal Piracy' Communications law Bulletin Vol 18, No.2 1999
    p. 15-16.
  23. (1996) 136 ALR 319.
  24. In the Foxtel case, Networks Seven, Nine and Ten unsuccessfully sought to restrain Foxtel from re-transmitting their programs as part of Foxtel's 20-channel cable television service. The commercial networks argued that section 212 of the Broadcasting Services Act 1992 (BSA) must be given a strict interpretation and therefore did not apply to Foxtel's re-transmission of their signals. The Federal Court rejected this argument.

    It followed from the Court's interpretation of section 212 of the BSA that the Networks also failed in their copyright claim. The Court held that section 199(4) of the Copyright Act, which allows a cable subscription service to transmit a broadcast signal, applied to Foxtel.

  25. The recent background to the issue of copyright in broadcast signals is as follows. In June 1999, the Government introduced amendments to the BSA which sought to insert a new regime for retransmission. The proposed regime would have required pay TV operators to obtain the consent of FTA broadcasters in order to re-transmit their service and thus would have superseded the Federal Court's ruling in the Foxtel case. In their submissions to the Senate Environment, Communication, Information Technology and Arts Legislation Committee the commercial and national FTA broadcasters supported the legislation. They argued that their property rights should be respected and remunerated and that they should have control over their signals to ensure quality control in transmissions. The pay TV industry opposed the legislation, arguing that re-transmission benefits FTA broadcasters and their advertisers by increasing their reach and ensures a better service for consumers. The Committee also received many submissions from pay TV consumers who complained that, if the legislation was passed, they might lose access to FTA service via cable, resulting in a deterioration of signal quality. The commercial FTA broadcasters emphasised that it was not their intention to prevent re-transmission, but to control the conditions under which it occurred.

    In December 1999, the retransmission provisions of the Broadcasting Services Amendment Bill were deleted. There seems to be agreement from all political parties that the FTA broadcasters are entitled to compensation for the use of their signal by pay TV operators. The government withdrew the amendments when agreement could not be found on whether there should be an arbitration procedure. The Opposition and the Democrat Senators argued that the Copyright Tribunal should be appointed as the arbitrator. All parties agreed to reconsider the retransmission issue in the context of the Digital Agenda Bill.

  26. (1997) 146 ALR 649.
  27. Telstra was involved in the provision of music in three ways:

    where an organisation plays music to its callers that are placed on hold. In that case Telstra is only involvement is a communications carrier,

    where Telstra plays music to its customers that it puts on hold,

    where Telstra provides its CustomNet Service. Under this service Telstra provided music on hold to callers to CustomNet customers that are put on hold.

    The High Court held that when callers using a conventional telephone were placed on hold Telstra infringed APRA's exclusive right under s. 31(v) of the Act to cause the work to be transmitted to subscribers to a diffusion service. Where the caller was using a mobile phone the High Court held that APRA's right to broadcast the work under s. 31(iv) had been infringed.

  28. See H. Paynter and R. Foreman, 'Liability of Internet Service Providers for Copyright Infringement' UNSW Law Journal, 1998 Vol 21(2).
  29. (1975) 133 CLR 1.
  30. 'Wireless telegraphy' is the term currently used in the definition of 'broadcast' to mean the emitting or receiving of electromagnetic energy otherwise than over a path that is provided by a material substance (section 10 of the Copyright Act).
  31. Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999, para 7, p. 19.
  32. Audio-visual item means a sound recording, a cinematograph film or a sound or television broadcast: section 100A Copyright Act.
  33. Permitted purposes are the same as those discussed above in the context of section 116A.
  34. Explanatory Memorandum Copyright Amendment (Digital Agenda) Bill 1999, para. 353, p. 94.
  35. University of New South Wales v Moorehouse (1975) 133 CLR 1.
  36. House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Copyright Amendment (Digital Agenda) Bill November 1999, p. 125.
  37. ibid, p. 127-128.
  38. House of Representatives Standing Committee on Legal and Constitutional Affairs, Inquiry into Copyright Amendment (Digital Agenda) Bill 1999, Submissions Volume 1, p. 42-46.
  39. Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1 Exceptions to the Exclusive Rights of Copyright Owners, September 1998, Canberra, 1998, p. 102.
  40. Copyright, Designs and Patents Act 1988 (UK); Copyright (Libraries and Archivists) (Copying of Copyright Material) Regulations 1989, Part A, Schedule 1.
  41. House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Copyright Amendment (Digital Agenda) Bill, op. cit., p. 153-4.
  42. ibid, p. 154-157.
  43. ibid, p. 157.
  44. Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999, para. 237, p. 69.
  45. House of Representatives Standing Committee on Legal and Constitutional Affairs, Transcript 14 October 1999, p. 157-161.
  46. House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the Copyright Amendment (Digital Agenda) Bill, op. cit., p. 107.
  47. ibid, p. 158-161.

Contact Officer and Copyright Details

Rosemary Bell, Andrew Grim, Mark Tapley
9 February 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.

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