House debates
Tuesday, 5 December 2006
Copyright Amendment Bill 2006
Consideration of Senate Message
Consideration resumed from 4 December.
Senate’s amendments—
(1) Schedule 1, item 6, page 18 (line 17), omit “offences”, substitute “offence”.
(2) Schedule 1, item 6, page 18 (line 28) to page 19 (line 3), omit subsection 132AI(8).
(3) Schedule 1, item 6, page 19 (line 4), omit “Subsections (7) and (8) are offences”, substitute “Subsection (7) is an offence”.
(4) Schedule 1, item 6, page 23 (line 20), omit “offences”, substitute “offence”.
(5) Schedule 1, item 6, page 23 (line 29) to page 24 (line 3), omit subsection 132AL(9).
(6) Schedule 1, item 6, page 24 (line 4), omit “Subsections (8) and (9) are offences”, substitute “Subsection (8) is an offence”.
(7) Schedule 1, item 6, page 25 (lines 22 to 31), omit subsections 132AN(5) and (6).
(8) Schedule 1, item 6, page 27 (line 1), omit subparagraph 132AO(5)(a)(i).
(9) Schedule 1, item 8, page 36 (lines 20 to 23), omit subsection 133B(1), substitute:
(1) The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to do both of the following as an alternative to prosecution:
(a) pay a penalty to the Commonwealth;
(b) forfeit to the Commonwealth:
(i) each article (if any) that is alleged to be an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence; and
(ii) each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence.
(i) each article (if any) that is alleged to be an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence; and
(ii) each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence.
Note: Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).
record means a disc, tape, paper or other device in which sounds are embodied.
private and domestic use means private and domestic use on or off domestic premises.
Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.
109A Copying sound recordings for private and domestic use
(i) is a device that can be used to cause sound recordings to be heard; and
(ii) he or she owns; and
Note: If the earlier or later copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the later copy but also by a dealing with the later copy.
(1) The Minister must cause to be carried out by the end of 31 March 2008 a review of the operation of sections 47J and 110AA of the Copyright Act 1968.
Note: Those sections are inserted in that Act by this Part.
(2) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
41A Fair dealing for purpose of parody or satire
103AA Fair dealing for purpose of parody or satire
Cost recovery not commercial advantage or profit
Works, adaptations and reasonable portions | ||
Item | Work or adaptation | Amount that is reasonable portion |
1 | A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages | (a) 10% of the number of pages in the edition; or (b) if the work or adaptation is divided into chapters—a single chapter |
2 | A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work | (a) 10% of the number of words in the work or adaptation; or (b) if the work or adaptation is divided into chapters—a single chapter |
51B Making preservation copies of significant works in key cultural institutions’ collections
(i) has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or
(ii) is prescribed by the regulations for the purposes of this subparagraph; and
110BA Making preservation copies of significant recordings and films in key cultural institutions’ collections
(i) has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or
(ii) is prescribed by the regulations for the purposes of this subparagraph; and
112AA Making preservation copies of significant published editions in key cultural institutions’ collections
(i) has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or
(ii) is prescribed by the regulations for the purposes of this subparagraph; and
(i) is given by a teacher; and
(ii) is not given for profit; and
(i) is given by a teacher; and
(ii) is not given for profit; and
Note: The heading to section 28 is altered by inserting “and communication” after “Performance”.
200AAA Proxy web caching by educational institutions
(i) temporary electronic reproductions of works made available online through the system to users of the system in response to action by the users; and
(ii) temporary electronic copies of other subject-matter made available online through the system to users of the system in response to action by the users; and
system includes network.
broadcaster means a person licensed under the Broadcasting Services Act 1992 to provide a broadcasting service (as defined in that Act) by which an encoded broadcast is delivered.
licensor means a body corporate for which both the following conditions are met:
(i) entitles any owner of copyright, or any owner of copyright of a specified kind, to become a member of the body; and
(ii) requires the body to protect the interests of its members connected with copyright; and
(iii) provides that the main business of the body is granting licences; and
(iv) requires the body to distribute to its members the proceeds (after deduction of the body’s administrative expenses) from payments to the body for licences; and
(v) prevents the body from paying dividends.
157A Tribunal must have regard to ACCC guidelines on request
Part 4—Records notices
Copyright Act 1968
Note 1: The following heading to subsection 135K(1) is inserted “If records notice is given”.
Note 2: The following heading to subsection 135K(3) is inserted “If sampling notice is given”.
(1) The amendment of section 135K of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the collecting society make an agreement determining a matter described in subsection 135K(2A) of the Copyright Act 1968. In that case, the amendment applies at and after the time the agreement comes into force.
Note: While the amendment does not apply, section 135K of the Copyright Act 1968, as in force before the commencement of the amendment, applies.
(3) In this item:
Note 1: The following heading to subsection 135ZX(1) is inserted “If records notice is given”.
Note 2: The following heading to subsection 135ZX(3) is inserted “If sampling notice is given”.
Note 3: The following heading to subsection 135ZX(4) is inserted “Regulations relevant to records notices and sampling notices”.
(1) The amendment of section 135ZX of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the relevant collecting society make an agreement determining a matter described in subsection 135ZX(2A) of the Copyright Act 1968. In that case, the amendment applies at and after the time the agreement comes into force.
Note: While the amendment does not apply, section 135ZX of the Copyright Act 1968, as in force before the commencement of the amendment, applies.
(3) In this item:
153BAA Application to the Tribunal under subsection 135K(2A)
administering body has the same meaning as in Part VA.
collecting society has the same meaning as in Part VA.
153DB Application to the Tribunal under subsection 135ZX(2A)
administering body has the same meaning as in Part VB.
relevant collecting society has the same meaning as in Part VB.
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iia) relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
(iia) relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and
4:15 pm
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
by leave—I move:
That the amendments be agreed to.
The Copyright Amendment Bill 2006 makes wide-ranging and innovative reforms to the Copyright Act 1968, demonstrating the government’s ongoing commitment to effective, world-class and up-to-date copyright laws. The major reforms will make it legal for people to record TV or radio programs and play them on devices at another time in or outside the home. It will legalise format shifting of materials such as music, newspapers and books, meaning that people can put their CD collection on iPods or MP3 players. It will provide new exceptions allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes. It will provide new exemptions for people with a disability. It will allow for the use of copyright material for parody or satire as fair dealing. It will facilitate the availability of more films, music and software online and a more up-to-date and practical technological protection measures regime. It will provide new enforcement measures, including on-the-spot fines and proceeds of crime remedies to tackle copyright piracy.
These amendments to the bill strengthen the certainty and effectiveness of the reforms and demonstrate that we the government have listened to the Senate committee and the stakeholders and have ensured that the bill meets our stated policy objectives. In particular, the amendments to private copyright exceptions make it clearer what consumers can legally do. The removal of some of the strict liability offences to ensure that enforcement measures are focused on activities that commercially harm copyright owners is evidence of my statement in the House on 19 October that the government would listen and respond to the issues raised. The process has resulted in a better set of reforms. Copyright law is an exercise in balancing of rights in the public interest, and the government believes that the bill, together with the amendments, has got the balance right for copyright owners and users. I thank members for their support for these measures in the debate that we have seen.
I am pleased and, in the spirit of goodwill, acknowledge that Labor will support the government on the passage of the bill. But I have to say that it is taking it a bridge too far to suggest that the government listened to Labor on copyright. The government did not accept one amendment from the opposition; in fact, we did not receive one workable amendment from the opposition. We received a flawed proposal to remove all the strict liability provisions. But, in the collegiate approach that we take to these matters, we pointed out the problems with Labor’s approach outside the parliament, and they did not push their amendments. The only amendments that Labor pushed were changes to the technological protection measures, which were driven by one of my Senate colleagues who has an ideological anti-American approach. The government rejected these changes.
We formed a considered approach after talking to all the stakeholders, an approach which will deliver more content for Australian consumers and allow them to continue to use their multiregional DVD players. The government put out an exposure draft to get people’s views. We listened to their views. We listened to the majority of the Senate. But let me say again in the spirit of goodwill that we welcome Labor’s support for the amended bill.
4:18 pm
Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source
It is heartbreaking to come into the House thinking that there might be some graciousness shown by the Attorney for our work on what was a particularly difficult set of amendments of laws. I noted that earlier in his speech the Attorney was determined not to provide Labor with any credit for the changes. But, whoever it is that the government wants to attribute the changes to, we are delighted that the government has made very significant changes following the Senate committee report and following very intense lobbying from a number of people from different advocacy, consumer and industry groups who were expressing concern with a number of provisions in the bill.
We are more than happy for the Attorney to indicate that it is his view and the government’s view that the balance is right in this legislation. We have some reservations about the overall approach that has been taken, but we agree with the Attorney that the difficulty with copyright is always the balancing act. How do you make sure that consumers are going to be adequately protected? How do you make sure that we support our creative industries? How do you make sure that the new technologies in the industries around that are supported? The process and the significant change that has been accepted by the government show that it is a difficult area. Ultimately, the government is the government, and it is up to them to take the policy decisions that they do. But we were in particular worried about the strict liability provisions. The regime that is now in place will be a much more sensible one.
As we indicated in the Senate, we are still concerned about some of the changes to the technological protection measures. We moved amendments that the government did not accept, despite the recommendations of both the House of Representatives Standing Committee on Legal and Constitutional Affairs and the Senate Standing Committee on Legal and Constitutional Affairs. It is a little unfair to say that this is some ideological view. It is actually something that members of the coalition unanimously supported in both of those committees. If there is an ideological view here, it is a determined one of the Attorney’s not to take that approach. Nevertheless, ultimately—as I said—it is for the government to make those decisions and we are very pleased and prepared to be quite gracious about those changes.
I would like to thank the Attorney’s office, because there has been a lot of toing and froing, making sure everyone knows what changes mean, and arguments over drafting—all those sorts of things, which can be very difficult for our staff. Thank you for the support that was given. Even though this is a little bit unusual, I would particularly like to thank two of my colleagues in the Senate, Senator Ludwig and Senator Lundy. They spent a lot of time and energy on these provisions. All of us know a lot more about copyright and are even more convinced that we do not want to be copyright lawyers if we ever end up not being in this place.
I also want to record my thanks to the very many advocates in industry, organisations and consumer groups who put in a lot of time and effort to get very quick responses when we were talking about a range of different amendments as the process went through. Labor is concerned that, with changing technology, changing international standards and a range of other things that are changing in our environment, our copyright laws are going to continue to come under significant pressure. We do think that there will be a time when it will be much better for us to step back and talk about the particular range of often competing interests that we want Australian copyright laws to be able to protect or support—not when we are debating just a particular set of changes.
We feel we have been able to make the changes a bit better and the exceptions a bit clearer, and some of the amendments about time shifting and format shifting have been improved; but the very big questions about how to balance the public interests when there are often a number of public interests competing with each other are very difficult to deal with in a forum where we are looking at specific changes to the legislation. That may be something that we will have a chance to look at in the future. Labor would certainly support that sort of approach—as well as making sure that consumers are protected, that educational interests are protected and that we still provide sufficient incentives for our creative industries and the technologies that are growing around them. It is a big ask to balance all of those things, but I think that this law is far better than the one that we were debating in the House previously. I thank the government for accepting the changes. Whether or not they are prepared to accept that they came from us or elsewhere, it is nevertheless a better bill because of the Senate process and Labor’s involvement.
Question agreed to.