Bills Digest No. 96, 2016–17
PDF version [631KB]
Mary Anne Neilsen
Law and Bills Digest Section
Purpose of the Bill
Structure of the Bill
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Parliamentary Joint Committee on
Key issues and provisions
Schedule 1—uses that
do not infringe copyright
New Part IVA of the Copyright
Act—uses that do not infringe copyright
Division 2—access by
or for persons with a disability
The Marrakesh Treaty
Schedule 2—terms of
Date introduced: 22
House: House of
formal provisions commence on Royal Assent. Schedule 1 and Schedule 3 Part 2
commence six months after the date of Royal Assent, or earlier by Proclamation.
Schedule 3 Part 1 commences the day after Royal Assent. Schedule 2 commences
on 1 January 2019.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at May 2017.
The purpose of the Copyright Amendment (Disability Access and
Other Measures) Bill 2017 (the Bill) is to amend the Copyright Act 1968
access to copyright material for persons with a disability, consistent with the
World Intellectual Property Organization (WIPO) Marrakesh Treaty to
Facilitate Access to Published Works for Persons Who Are Blind, Visually
Impaired, or Otherwise Print Disabled
(Marrakesh Treaty) ratified by Australia on 10 December 2015
a new, simplified exception to existing copyright laws, permitting libraries,
archives and certain cultural institutions to create copies of material for
the term of copyright protection for published and unpublished works, films and
and streamline the educational statutory licence provisions to make it easier
for educational institutions and copyright collecting societies to agree on
licensing arrangements for the copying and communication of copyright material.
of the Bill
The Bill consists of three Schedules:
1 Part 1 amends the Copyright Act to insert a new Part IVA to establish
new uses of copyright material that do not infringe copyright. Part 2 contains
further amendments consequential to the insertion of new Part IVA and Part 3
contains the necessary transitional provisions
2 contains amendments to harmonise the rules regarding the duration of
3 contains minor amendments which include: updating references to Ministers;
setting out preconditions for making regulations; and extending or restricting
the operation of the Copyright Act in relation to foreign countries.
The Bills Digest focuses on Schedules 1 and 2.
Copyright is concerned with encouraging the creation and
dissemination of works of art and intellect, but also acknowledges that there
are appropriate limits to the rights of copyright holders. Retaining the
correct balance has always been difficult and has become more so in the digital
age with copyright policy taking on enormous importance
in recent years. The Australian Law Reform Commission in 2012-14 conducted the most comprehensive review of the Copyright Act since it came into effect almost a half century ago, and there have been numerous other inquiries
since, including the inquiries into IT
and online copyright infringement.
The Productivity Commission has also recently
completed a review of Australia's
intellectual property arrangements and made recommendations that included reform
of copyright law.
Copyright protection is provided under the Copyright
Act and gives the holder of copyright exclusive rights to license others in
regard to copying a work, performing it in public, broadcasting it, publishing
it and making an adaptation of the work. Rights vary according to the nature of
the work. Those for artistic works, for instance, are different from those for
literary and musical works.
The Australian Law Reform Commission (ALRC) in its 2014
report, Copyright and the Digital Economy,
considered an extensive range of challenges facing copyright in the digital
age, and made 30 recommendations which President Professor Rosalind Croucher
said ‘are designed to allow for a more principles-based and less prescriptive approach
to copyright law’.
In summary, the recommendations include:
introduction of a flexible fair use exemption as a defence to copyright
and reforming some existing specific exemptions (including the exemptions that
apply to parliamentary libraries), and introducing certain new specific
the statutory licensing scheme
the broadcasting exemptions and
the Copyright Act to limit contracting out of copyright exemptions.
Undoubtedly the key recommendation is that Australia adopt
a ‘fair use’ exception to copyright.
Fair use is a defence to copyright infringement that essentially asks of any
particular use: is this fair? In deciding whether a particular use of copyright
material is fair, a number of principles, or ’fairness factors’ must be
considered. The Productivity Commission in its recent report on intellectual
property also recommended that the Australian Government should accept and
implement a fair use exception in Australia.
The Government is yet to respond to the ALRC report and
the Productivity Commission report. In the meantime it has chosen to make a
series of amendments designed to simplify and modernise the Copyright Act
to make it easier for the disability, educational, libraries and archives
sectors. These amendments, as set out in the Bill before
the Parliament are relatively minor and are in accord with some of the ALRC’s
less contentious recommendations.
Copyright Amendment (Disability Access and Other Measures) Bill 2016
In December 2015 the Government released an exposure draft
of the Copyright Amendment (Disability
Access and Other Measures) Bill 2016 for public comment, the stated purpose
- streamline the educational statutory licence provisions to make it
easier for educational institutions and copyright collecting societies to agree
on licensing arrangements for the copying and communication of copyright
- provide simple, clear rules for libraries, archives and key cultural
institutions to make preservation copies of copyright material
- align the terms of protection for unpublished works with published works
to give libraries, archives and other cultural institutions greater
opportunities to use, and provide public access to, unpublished works, and
- ensure that search engines, universities and libraries have ‘safe
harbour’ protection if they comply with conditions aimed at reducing online
The exposure draft was received with keen interest. There are
over 90 submissions from a range of stakeholders, available on the Department
of Communications and the Arts website.
The Bill currently before the Parliament is similar to the
exposure draft in most respects, with the major difference being the omission
of amendments to the safe harbour provisions. 
These provisions were the more significant and controversial of the proposed
amendments in the exposure draft. Safe harbour amendments have been the subject
of debate and review for over ten years with groups representing rights owners
raising some objections to them. While the Explanatory Memorandum and second
reading speech to the Bill make no mention of this omission, the Government has
subsequently announced that it will undertake further consultation with
stakeholders on the extension of the safe harbour provisions of the Copyright
Act prior to introducing legislation:
An expanded safe harbour regime would provide a useful
mechanism for rights holders to have material that infringes their copyright
removed from online service providers. An expanded regime would also ensure
that service providers are not held responsible for the infringing actions of
their users, provided they take reasonable steps to take down material that
infringes copyright. The extension of safe harbour to cover online service
providers, not just internet service providers, has been the subject of inquiry
and public debate for over a decade.
Further background on the Bill is provided in the Key
issues and provisions section below.
At the time of writing the Bill had not been referred to a
committee for inquiry and report.
Standing Committee for the Scrutiny of Bills
The Committee considered the Bill and had no comment.
position of non-government parties/independents
The Bill received bipartisan support in the House of
Representatives. The Shadow Attorney-General, Mark Dreyfus, in parliamentary
debate, stated that the Bill is a very welcome start to some major copyright
reform but added that it ‘can only be the very start of the ambitious
modernisation of the Copyright Act that the government promised at the
start of the last term of the parliament’.
Mr Dreyfus highlighted particularly the importance of the provisions intended
to assist persons with a disability in the use of copyright
material, noting also the previous Labor Government’s leading role in
negotiating the Marrakesh Treaty.
major interest groups
The exposure draft of the Bill released for public comment
was generally received well by libraries and universities. For example the
Australian Digital Alliance and the Australian Libraries Copyright Committee in
their joint submission stated:
We feel these are important changes that provide significant
benefits for Australian consumers and businesses. They will particularly
benefit the cultural, educational, disability and technology sectors.
Universities Australia (UA) also strongly welcomed the
proposed reforms. While recommending some minor changes to improve the drafting
UA saw the exposure draft as a ‘significant first step’ in reforming the
educational copying landscape in the way recommended by the ALRC.
The ALRC also welcomed this legislative initiative noting
that the exposure draft was consistent with some of the approaches to reform
reflected in its 2014 report.
Submissions from groups representing rights owners were
more cautious in their reaction and in particular were generally opposed to the
amendments to the safe harbour provisions. For example the Australian Copyright
Council was generally supportive of the preservation provisions for cultural
institutions but expressed reservations about the provisions relating to
disability access to copyright materials. The Council did not support the safe
harbour provisions in the exposure draft.
The Explanatory Memorandum states that the Bill will not
have a significant impact on Commonwealth expenditure or revenue.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill did not raise human rights concerns.
Schedule 1—uses that do not infringe copyright
New Part IVA of the Copyright Act—uses that do not infringe
Item 2 is
the key provision in this Schedule. It inserts a new Part IVA into the Copyright
Act and provides that certain uses of copyright material do not result in
an infringement of copyright. These include:
- certain use of copyright material by or for persons with disability (proposed Division 2)
- certain use of copyright material for the purposes of libraries,
archives and key cultural institutions (proposed
- certain use of copyright material by educational institutions (proposed Divisions 4 and 5).
Division 2—access by or for persons with a disability
The Marrakesh Treaty
Until recently, international copyright law has permitted,
but not required, countries to include copyright exceptions to faciliatate access
by persons with disability. That situation changed when the Marrakesh Treaty was adopted at the World Intellectual Property
Organization in 2013. The Marrakesh Treaty requires parties to provide
exceptions to copyright to facilitate the availability of works in accessible
The exceptions should allow certain uses of copyright material by institutions
(‘authorised entities’) and by individuals (for personal use).
Australia signed the agreement in June 2014 and the Government
ratified the Treaty on 10 December 2015 with the Treaty entering into force on
30 September 2016.
The existing framework in the Copyright Act permits the making of accessible copies of books and other copyright
material under a number of different provisions for various disabilities and
purposes, however there is no comprehensive exception for individual
users with a disability.
With regard to institutions, Part VA provides for a statutory licence for
copying and communicating broadcasts that is available to an institution
assisting persons with an intellectual disability. Part VB provides for a
statutory licence for copying and communicating various types of other
copyright material for persons with print or intellectual disabilities. The
licence does not extend to making a reproduction of a work in a particular
format if there is already a commercially available version in that format. The
statutory licences also require equitable remuneration to be paid, although the
Copyright Agency does not collect payment for these uses.
The Bill inserts two new provisions to
strengthen and consolidate the various exceptions that currently assist persons
with a disability in the use of copyright material. One
exception is for persons with a disability and anyone assisting them (proposed section 113E) and one is for
organisations assisting persons with a disability (proposed
section 113F). These
provisions are intended to satisfy Australia’s obligations under the Marrakesh
Proposed section 113E provides that a fair dealing with copyright material does not
infringe copyright in the material if the dealing is for the purpose of one or
more persons with a disability having access to the copyright material (whether
the dealing is by any of those persons or by another person on their behalf). A
person with a disability is defined to mean ‘a person with a disability
that causes the person difficulty in reading, viewing, hearing or comprehending
copyright material in a particular form’.
Proposed subsection 113E(2) sets out four factors that must be considered prior to determining whether
the use of copyright material would be a fair dealing namely:
- the purpose and character of the dealing
- the nature of the copyright material
- the effect of the dealing upon the potential market for, or value of
- if only part of the material is dealt with, the amount and
substantiality of the part dealt with, taken in relation to the whole material.
As the Explanatory Memorandum points out
these factors generally replicate those in the existing fair dealing provisions
in section 40 of the Copyright
Act, except that the commercial availability
considerations have been omitted. The rationale for this omission being that it
is ‘well understood that the commercial supply of accessible format material is
Consequential to this amendment, the
existing subsection 200AB(4) will be repealed. This provision
currently relates to use of works and other subject-matter by or for persons
with a disability.
The ALRC in its inquiry considered the
matter of access to copyright material by people with disabilities and included
in its report a recommendation that either a fair use or fair dealing exception
The ALRC in response on the exposure draft was therefore pleased that proposed
section 113E would implement this recommendation.
113F is an exception
relating to the use of copyright material
by ‘organisations assisting persons with a disability’ (defined
to mean an educational institution or a not-for-profit organisation with a
principal function of providing assistance to persons with a disability).
The proposed section permits such organisations to make accessible format
copies and provide them to persons with a disability in circumstances where the
provision of such material is for the sole use of a person with a disability
and the requested material is unavailable commercially in a reasonable
timeframe and at an ordinary commercial price. This more streamlined single
exception that applies to educational institutions and certain not-for-profit
organisations would replace the current statutory licences for institutions
that assist persons with a print or intellectual disability.
Division 3—libraries and archives
The Copyright Act currently
includes a number of exceptions that specifically allow staff of libraries and
archives to make or communicate copies of copyright material in collections for
preservation purposes. There are separate exceptions for libraries and archives
(sections 51A and 110B) and for certain cultural institutions, (sections
51B, 110BA and 112AA). Currently, a distinction is also drawn in the Act
between preservation copying of works
and subject-matter other than works,
and different considerations for ‘original’ and ‘published’ works.
The rules regarding preservation are
generally considered to be unduly restrictive. For example, section 51A
provides that a library or archive can make and communicate a reproduction of
the work if:
work is in manuscript form or is an original artistic work—for the purpose of
preserving against loss or deterioration or for the purpose of research that is
being carried out at the library or archive
work is in published form but has been damaged, deteriorated, lost or
stolen—for the purpose of replacing the work.
In addition preservation copying of works held in
published form is only permitted subject to a commercial availability
declaration and there is a limit on the number of copies that can be made.
The ALRC report described these
provisions as ‘a good example of how prescriptive and rigid rules are
inadequate for the digital environment’ with stakeholders submitting to the
inquiry that the current limit of one copy for preservation purposes or three
copies for a key cultural institution ‘no longer meets best practice
The Bill proposes to repeal these existing provisions
and to replace them with simpler uniform provisions which would mean that libraries, archives and prescribed key cultural institutions would
have greater flexibility in copying and digitisation of copyright material,
whether published or unpublished, to preserve or administer their collections.
The new provisions are in line with the recommendations of the ALRC
and are supported by the Library community.
Specifically, proposed subsection
113H(1) would enable an authorized officer of a library or archives to use
copyright material, without infringing copyright, for the purpose of preserving
its collection or the collection of another library or archives, if the
- held in original form and/or
- cannot be obtained in the required version or format consistent with
best practice for preservation of such a collection.
If a preservation copy made under proposed
subsection 113H(1) is
in electronic form, that copy could be made available for access by a person at
the relevant library or archives, provided reasonable steps are taken to ensure
copyright is not infringed (proposed subsection 113H(2)).
The Explanatory Memorandum states this
would enable libraries and archives to make multiple copies of copyright
material which are in a version or format that is in line with best practice
preservation policy, if a copy of the material cannot be obtained in that
version or format. This includes making an enhanced, preservation‑oriented
copy of the material at the point of access or purchase.
Proposed section 113M is an equivalent provision applying to ‘key
Proposed subsection 113M(1) would enable an authorized officer of a key
cultural institution to use copyright material, without infringing copyright,
for the purpose of preserving the collection if satisfied that the material is
of historical or cultural significance to Australia and the material is:
- held in original form and/or
- cannot be obtained in the required version or format consistent with
best practice for preservation of such collection.
If a preservation copy made under proposed
subsection 113M(1) is in electronic form, the copy could be made
available for access by a person at the cultural institution, provided
reasonable steps are taken to ensure copyright is not infringed (proposed
Proposed section 113J would enable an authorized officer of a
library or archives to use copyright material held in its collection in
original form, without infringing copyright, for the purpose of research
carried out at the library or archives or another library or archives. If a
research copy made under proposed subsection 113J(1) is in electronic
form, the copy could be made available for access by a person at the library or
archives, provided reasonable steps are taken to ensure copyright is not infringed
(proposed subsection 113J(2)).
Proposed section 113K would enable an authorized officer of a
library or archives to use copyright material, without infringing copyright,
for administrative purposes directly related to the care or control of the
By virtue of the definition of ‘library’
in proposed section 113G the new preservation and research
exceptions would apply to libraries accessible to members of the public
directly or through interlibrary loans and to parliamentary libraries. The
Explanatory Memorandum states that the definition of ‘library’ is broad enough
to include university libraries and government libraries and that the existing
definition of ‘archives’ means the provisions would also encompass the
collections of museums and galleries.
Statutory licences allow for certain uses of copyright
material, without the permission of the rights holder, subject to the payment
of reasonable remuneration. They have been described as a type of compulsory
licence because where the licence applies, rights holders cannot choose not to
license their material.
Under the Copyright Act there are currently two
statutory licensing schemes for the use of copyright material by educational
institutions and institutions assisting people with a print disability: one
relates to the copying and communication of broadcasts, in Part VA; the other
concerns the reproduction and communication of works in Part VB.
The Part VB licence applies to all copies and communications of text and
images, including digital material, from any source, including the internet.
Under these schemes, educational institutions pay fees or
royalties (referred to as ‘equitable remuneration’ in the Act)—to collecting
societies for certain uses of copyright material. Collecting societies
distribute royalties to their members—authors, film-makers and other rights
holders. Copyright Agency
is the declared collecting society for text, artworks and music (other than
material included in sound recordings or films). Screenrights
is the declared collecting society for the copying of audiovisual material,
including sound recordings, film, television and radio broadcasts.
The Copyright Act mandates various administrative
requirements for each scheme. For example, it requires that notice be given to
rights holders or collecting societies when copyright material is used.
The ALRC in its review of the Copyright Act was
asked to consider whether the existing statutory licences are ‘adequate and
appropriate in the digital environment’.
The ALRC report notes that these schemes were criticised by educational
institutions during the inquiry and there were strong calls for the licences to
be repealed and for licences to be negotiated voluntarily instead. Rights
holders and collecting societies on the other hand were opposed to outright
repeal of the schemes. The ALRC decided not to recommend the repeal of the
statutory licences. While maintaining that voluntary licences would be more
efficient and better suited to a digital age, the ALRC concluded that there is,
at least for now, a continued role for statutory licences. To address the
educational institutions’ criticisms, the ALRC recommended that the schemes
should be made less prescriptive and that:
[d]etailed provisions concerning the setting of equitable
remuneration, remuneration notices, records notices, sampling notices, and
record keeping should be removed. The Act should not require sampling surveys
to be conducted. Instead, the Act should simply provide that the amount of
equitable remuneration and other terms of the licences should be agreed between
the relevant parties, or failing agreement, determined by the Copyright
The Explanatory Memorandum does not refer directly to the
ALRC recommendations, and the second reading speech for the Bill makes only
more generalised reference to the views of copyright stakeholders that ‘reform
is needed to address outdated, prescriptive and overly complex provisions of
the Copyright Act.
The Explanatory Memorandum states that the aim of the new Division
4 is to simplify the operation of the educational statutory licences, to
provide more flexibility for educational institutions and collecting societies
to negotiate agreed terms and to remove the mandatory record keeping
requirements of the Parts VA and VB statutory licences.
Proposed section 113P is the key provision and deals with copying and communication of
works and broadcasts by educational institutions.
Proposed subsection 113P(1) provides a statutory licence for
educational institutions to copy and communicate works, without infringing
copyright, provided certain conditions are complied with. These conditions
- a remuneration notice that applies to the educational institution
and the work is in force
- the copy or communication occurs solely for the educational purposes
of the institution, or of another educational institution if that other
institution has a remuneration notice in force
- the amount of work copied or communicated does not unreasonably
prejudice the legitimate interests of the owner of the copyright
- the copying or communicating complies with:
- any relevant agreement between the educational institution’s
administering body and the collecting society and
- any relevant determination made by the Copyright Tribunal.
The intention is that the remuneration
notice is an undertaking and informs the collecting society that the
educational institution intends to rely on the statutory licence and undertakes
to pay remuneration and comply with agreed terms and conditions. The detailed
terms agreed between the body administering the educational institution and the
collecting society are then set out in a separate agreement. If the parties
fail to agree on the terms and conditions for the copying and communicating,
these can be determined by the Tribunal under proposed subsection 113P(4).
Proposed subsections 113P(2) and (6) provide a statutory licence for educational
institutions enabling them to copy, and communicate copies of, broadcasts and
broadcast content provided certain conditions specified in proposed
paragraphs 113P(2)(a) to (d) are complied with.
Proposed section 113Q sets out the requirements for a remuneration notice. A remuneration
notice is a written notice given by the body administering an educational
institution to a collecting society undertaking to pay equitable remuneration
for licensed copying and communicating and to provide reasonable assistance to
the collecting society to enable the society to collect and distribute
Proposed section 113R provides that the amount of the equitable remuneration payable will
be the amount that is agreed between the administering body and the collecting
society or, failing agreement, by the Tribunal.
The Explanatory Memorandum notes that this
proposed approach differs from the existing scheme because it does not mandate
a particular method for determining remuneration, such as sampling or record
Proposed section 113S provides the procedure by which a collecting society can enter the
premises of an educational institution for the purpose of reviewing compliance
with the remuneration notice and any other relevant terms and conditions.
Division 5—collecting societies
sets out the framework for the operation of declared collecting societies under
the statutory licence. The provisions largely retain the current arrangements
and cover such matters as specifying the requirements for bodies seeking to be
declared as collection societies and the circumstances in which such
declarations may be revoked. It also sets out the obligations of the collecting
society with regard to the preparation of annual reports, accounting records
and the auditing of such records.
The provisions in Division 5 are described
in greater detail at pages 26–29 in the Explanatory Memorandum.
Schedule 2—terms of copyright
Under the Copyright Act, copyright in a published work (including a literary,
dramatic, musical or artistic work) generally subsists for 70
years from the death of an author, or, if the work was not published until
after the death of the author, for 70 years from first publication. Similarly in relation to
anonymous works copyright subsists for 70 years from first publication. Copyright in a sound
recording and a cinematograph film also subsists for 70 years from publication.
In contrast, where copyright materials
are unpublished or otherwise not made public they remain in copyright in
perpetuity. As a consequence where the owner of a copyright is unknown or
unable to be contacted, libraries and other institutions are unable to make
use of those works.
Schedule 2 amends the Copyright Act to
implement a new general protection period of life of author plus 70 years or
first made public plus 70 years that does not differentiate between published
and unpublished works. Specifically, item 4 repeals existing sections 33
and 34 and replaces them with a proposed section 33. The proposed section
33 provides in table form how the 70 year period is calculated in relation
to original works. It is divided according to works made public before 1
January 2019 and works not made public before 1 January 2019— that date being
the day that the provisions are to commence.
The general effect is that:
copyright term for works (including a literary, dramatic, musical or artistic
work) is a standard term of 70 years from the death of the author, irrespective
of whether the relevant work has or has not been made public. This means that
an unpublished work will have the same term of copyright protection as a
the identity of the author remains generally unknown, the standard copyright
term will be 70 years from when it is made. However, if this work is made
public within 50 years of being created, the copyright term will be 70 years from
first being made public.
The meaning of ‘made public’ is defined in proposed
section 29A and covers when a work is published, first performed in public,
broadcast or otherwise communicated to the public.
Item 9 repeals existing sections 93 and 94 that
deal with terms of copyright for films and sound recordings. Proposed section
93 sets out in table form the new copyright terms:
sound recordings and films, a standard copyright term of 70 years from the year
in which the material is made will apply. However, if the sound recording or
film is made public within 50 years of being made, the copyright term will be
70 years from first being made public.
Item 12 makes similar amendments relating to Crown
copyright. Under the Copyright Act sections 180 and 181 respectively provide
that where the Commonwealth or State is the owner of copyright, the term of
copyright is fifty years in published works and 50 years in published sound
recordings and cinematograph films. Item 12 repeals sections 180 and 181
and substitutes proposed section 180. It provides a new standard term of
copyright protection for works, sound recordings and cinematograph films owned
by the Crown of 50 years from the year in which the material is made, whether
the material is made public or not.
Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired or Otherwise Print Disabled (MVT) 2013, done in Marrakesh on 27 June 2013,  ATNIF 15 (entered into
force 30 September 2016).
of Representatives Standing Committee on Infrastructure and Communications, Inquiry into IT pricing, House of Representatives,
Canberra, 2013. On 29 July 2013, the Standing Committee tabled
its report on the inquiry entitled At what cost? IT pricing and the
30 July 2014 the Government released the Online copyright infringement
discussion paper seeking public submissions on draft proposals designed to
address online piracy. This inquiry formed the basis for
the subsequent passage of the Copyright Amendment (Online Infringement) Act 2015.
. Productivity Commission, Report on intellectual property arrangements was sent to Government on 23 September 2016 and
publicly released on 20 December 2016. The Report examines Australia’s
intellectual property system in detail, and makes recommendations to improve
. For more information about copyright generally see the website for the Department of Communications and the Arts (DCA).
Law Reform Commission (ALRC), Copyright
and the digital economy: final report, ALRC report, 122, ALRC, Sydney,
releases copyright report, media release, 13 February 2014.
. M Neilsen, ‘ALRC report released: copyright and the digital economy’, FlagPost, Parliamentary Library, Canberra, 20 February 2014.
Commission, op. cit., Recommendation 6.1, p. 33.
Australia’s copyright laws’, DCA website.
purpose of the safe harbour provisions (sections 116AA to 116AJ of the Copyright
Act) is to give carriage service providers some protection from the
otherwise unavoidable risk of liability for inadvertently hosting or
communicating copyright infringing material on behalf of their users.
Fifield (Minister for Communications), Further
consultation on copyright safe harbour legislation,
media release, 21 April 2017.
. Senate Standing Committee for the Scrutiny of Bills, Scutiny
digest, 4, 2017, The Senate, 29 March 2017, p. 13.
reading speech: Copyright Amendment (Disability Access and
Other Measures) Bill 2017’, House of
Representatives, Debates, 28 March 2017, p. 3467.
Digital Alliance and Australian Libraries Copyright Committee, Joint
submission to the DCA, Copyright
Amendment (Disability Access and Other Measures) Bill 2016: exposure draft,
submission no. 40, February 2016, p. 2.
to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill
2016: exposure draft, submission no. 46, 12 February 2016.
to the DCA, Copyright Amendment (Disability Access and Other Measures) Bill
2016: exposure draft, 11 February 2016.
Copyright Council, Submission to the DCA, Copyright Amendment (Disability Access and Other
Measures) Bill 2016: exposure draft, February 2016, pp. 2–6.
. Explanatory Memorandum, Copyright
Amendment (Disability Access and Other Measures) Bill 2017, p. 2.
Statement of Compatibility with Human Rights can be found at pages 3–10 of the
Explanatory Memorandum to the Bill.
. Parliamentary Joint Committee on Human Rights, Scrutiny
report, 3, 2017, The Senate, Canberra, 28 March 2017, p. 17.
Treaty to Facilitate Access to Published Works for Persons Who Are Blind,
Visually Impaired or Otherwise Print Disabled (MVT) 2013, op. cit.
and the digital economy: final report, op. cit., p. 357. The background
in this section draws on Chapter 16 of the ALRC report, op. cit.
‘Marrakesh Treaty for people with print disability’, DCA website.
ALRC notes that individuals can create accessible materials by relying on
exceptions for format shifting, fair dealing for research and study, and
‘special cases’ (section 200AB). ALRC, report, op. cit., paragraph 16.8.
. To be inserted into subsection 10(1) by item 1, Schedule 1.
. Consideration of these four factors does not preclude
consideration of any additional factors.
Memorandum, op. cit., p. 15.
56 of Schedule 1 to the Bill repeals subsection 200AB(4).
Report, op. cit., p. 363.
. ALRC, Submission, op. cit., p. 1.
. The term ‘copyright material’ is defined to mean anything in which
copyright subsists (item 1, Schedule 1).
definition would be inserted into section 10 by item 1, Schedule 1.
statutory licence schemes are to be repealed by item 39, Schedule 1.
Act section 10 defines a ‘work’ as a literary, dramatic, musical or artistic
sections 51A, 51B deal with copying ‘works’ while sections 110B, 110BA and
112AA deal with subject-matter other than works, which includes sound
recordings and cinematograph films and published works.
. ALRC, Report, op. cit., paragraph 12.59.
2 of Schedule 1 contains the repeal provisions.
Report, op. cit., Recommendation 12–2: ‘The exceptions for preservation copying
in ss 51A, 51B, 110B, 110BA and 112AA of the Copyright Act should be
repealed. The Copyright Act should provide for a new exception that
permits libraries and archives to use copyright material for preservation
purposes. The exception should not limit the number or format of copies that
may be made’.
example: Australian Digital Alliance and Australian Libraries Copyright
Committee, op. cit., p. 7.
Memorandum, op. cit., p. 18.
. Proposed section 113L provides a definition of ‘key cultural institution’. This covers the
types of institutions described under current subsections 51B(1), 110BA(1) and
112AA(1) of the Act, and includes libraries and archives that have a statutory
function under a Commonwealth, state or territory law to develop and maintain
the collection or are prescribed by regulations made under the Act. There are
currently three prescribed key cultural institutions—the Australian
Broadcasting Corporation (ABC), the Special Broadcasting Service Corporation
(SBS) and the Australian National University Archives Program—see Schedule 5 to
the Copyright Regulations 1969 . The
Explanatory Memorandum notes that key cultural institutions that are currently
prescribed in the regulations for the purposes of current sections 51B, 110BA
or 112AA would, by virtue of transitional provisions in the Bill, be treated as
having been prescribed for the purposes of the new section 113L (see item 81
of Schedule 1 to the Bill). Explanatory Memorandum, op. cit., p.
subsection 10(1) and subsection 10(4) of the Copyright Act. Explanatory
Memorandum, op. cit., p. 17.
background material relies on Chapter 8 of the ALRC report, op. cit., p. 183
that there is also a statutory licensing scheme for Crown or government use which
is contained in Part VII division 2 of the Copyright Act. Under this scheme, copyright is not infringed by a
government use of copyright material if that use is ‘for the services of the
Commonwealth or State’. The Bill and the Bills Digest do not deal with this
report, op. cit., paragraphs 8.12 and 8.13.
. Copyright Agency website.
@screenrights1’, Twitter website.
report, op. cit., paragraph 8.15 and 8.16.
. P Fletcher, ‘Second reading speech: Copyright Amendment (Disability Access and
Other Measures) Bill 2017’, House of
Representatives, Debates, 22 March 2017, p.
Memorandum, op. cit., p. 20. Consequential to the amendments
in Divisions 4 and 5, item
39 of Schedule 1 will
repeal Parts VA and VB of the Act.
. Ibid., p. 21.
memorandum, op. cit., p. 24.
Act, section 33.
sections 93 and 94.
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