An Act to amend the Copyright Act 1968 to enable Australia to accept the Agreement Establishing the World Trade Organization, and for other purposes
[Assented to 13 December 1994]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title etc.
1. This Act may be cited as the Copyright (World Trade Organization Amendments) Act 1994. (2) In this Act, “Principal Act” means the Copyright Act 19681.
Commencement
2. –
(1) In this section, “World Trade Organization Agreement” means the Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994.
(2) Section 1 and this section commence on the day on which this Act receives the Royal Assent.
(3) Part 2 of this Act commences on the first day after the end of the period of one year beginning on the day on which the World Trade Organization Agreement enters into force.
(4) Parts 3 and 4 of this Act commence as follows:
(a) if the World Trade Organization Agreement enters into force for Australia on or before 1 July 1995, Parts 3 and 4 commence on 1 July 1995;
(b) if the World Trade Organization Agreement does not enter into force for Australia on or before 1 July 1995, Parts 3 and 4 commence on the day on which the Agreement enters into force for Australia.
(5) For the purposes of subsections (3) and (4):
(a) the day on which the World Trade Organization Agreement enters into force is to be taken to be the day declared by the Governor-General, by Proclamation, to be the day on which the Agreement enters into force; and
(b) the day on which the World Trade Organization Agreement enters into force for Australia is to be taken to be the day declared by the Governor-General, by Proclamation, to be the day on which the Agreement enters into force for Australia.
PART 2—AMENDMENTS RELATING TO COMMERCIAL RENTAL OF SOUND RECORDINGS AND COMPUTER PROGRAMS
3. After section 30 of the Principal Act the following section is inserted in Part II: Commercial rental arrangement
“30A.
(1) In this Act, the expression ‘commercial rental arrangement’, in relation to a work reproduced in a sound recording, signifies an arrangement that has the following features:
(a) however the arrangement is expressed, it is in substance an arrangement under which a copy of the sound recording is made available by a person on terms that it will or may be returned to the person;
(b) the arrangement is made in the course of the conduct of a business;
(c) the arrangement provides for the copy to be made available:
(i) for payment in money or money’s worth; or
(ii) as part of the provision of a service for which payment in money or money’s worth is to be made.
“(2) In this Act, the expression ‘commercial rental arrangement’, in relation to a sound recording or a computer program, signifies an arrangement that has the following features:
(a) however the arrangement is expressed, it is in substance an arrangement under which a copy of the sound recording or computer program is made available by a person on terms that it will or may be returned to the person;
(b) the arrangement is made in the course of the conduct of a business;
(c) the arrangement provides for the copy to be made available:
(i) for payment in money or money’s worth; or
(ii) as part of the provision of a service for which payment in money or money’s worth is to be made.
“(3) It is not the intention of the Parliament that a lending arrangement should be regarded as a commercial rental arrangement for the purposes of subsection (1) or (2).
“(4) An arrangement is to be regarded as a lending arrangement if, regardless of the way in which the arrangement is expressed, the true nature of the arrangement is that it is an arrangement for the lending of a copy of a sound recording or computer program under which no amount, other than a deposit to secure the return of the copy, is payable.”.
Nature of copyright in original works
4. Section 31 of the Principal Act is amended:
(a) by adding at the end of subsection (1): “; and
in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and
(d) in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.”;
(b) by adding at the end:
“(3) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a machine or device in which a computer program is embodied if the program is not able to be copied in the course of the ordinary use of the machine or device.
“(4) The reference in subsection (3) to a device does not include a device of a kind ordinarily used to store computer programs (for example, a floppy disc, a device of the kind commonly known as a CD ROM, or an integrated circuit).
“(5) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement if the computer program is n the essential object of the rental.
“(6) Paragraph (1)(c) does not extend to entry into a commercial rental arrangement if:
(a) the copy of the sound recording concerned was purchased by a person (‘the record owner’) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and
(b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and
(c) the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements of the same kind, when the copy was purchased.
“(7) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a computer program if:
(a) the copy of the computer program was purchased by a person (‘the program owner’) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and
(b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the program owner; and
(c) the program owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of computer programs, when the copy was purchased.”.
Nature of copyright in sound recordings
5. Section 85 of the Principal Act is amended by adding at the end:
“; (d) to enter into a commercial rental arrangement in respect of the recording.
“(2) Paragraph (1)(d) does not extend to entry into a commercial rental arrangement in respect of a sound recording if:
(a) the copy of the sound recording was purchased by a person (‘the record owner’) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and
(b) the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and
(c) the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements in respect of copies of sound recordings, when the copy was purchased.”.
PART 3—AMENDMENTS RELATING TO ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Affidavit evidence
6. Section 134A of the Principal Act is amended:
(a) by omitting subsection (1) and substituting:
“(1) Subject to subsection (2), at the trial of a proceeding, being:
(a) an action brought by virtue of this Part; or
(b) a prosecution for an offence against this Act; evidence that:
(c) at a particular time, copyright subsisted in the work or other subject-matter to which the proceeding relates; or
(d) at a particular time, copyright in that work or subject-matter was owned by, or exclusively licensed to, a particular person; or
(e) at a particular time, copyright in that work or subject-matter was not owned by, or exclusively licensed to, a particular person; or
(f) a particular act was done without the licence of the owner of the copyright, or of the exclusive licensee of the copyright, in that work or subject-matter;
may be given by affidavit.”;
(b) by omitting from subsection (2) “cause” (wherever occurring) and substituting “proceeding”.
7. After section 134A of the Principal Act the following heading and section are inserted:
“Division 7—Seizure of imported copies of copyright material
Interpretation
“134B. In this Division: ‘Comptroller-General’ means the Comptroller-General of Customs; ‘copyright material’ means:
(a) a work; or
(b) a sound recording; or
(c) a cinematograph film; or
(d) a published edition of a work; or
(e) a television or sound broadcast as recorded in a cinematograph film or a sound recording;
‘objector’, in relation to particular seized copies, means the person who gave the notice under subsection 135(2) as a result of the giving of which the copies were seized;
‘owner’, in relation to the copyright in copyright material, includes an exclusive licensee of the copyright in the material;
‘seized copies’ means copies seized under subsection 135(7).”. Restriction of importation of copies of works etc.
8. Section 135 of the Principal Act is amended:
(a) by omitting subsections (2), (3), (4), (5), (6) and (7) and substituting: “(2) A person may give the Comptroller-General a written notice stating:
(a) that the person is the owner of the copyright in copyright material; and
(b) that the person objects to the importation into Australia of copies of the copyright material to which this section applies.
“(3) When a notice is given under subsection (2), any prescribed document must be given with the
notice.
“(4) This section applies to a copy of copyright material if the making of the copy would, if it had been carried out in Australia by the person importing the copy, have constituted an infringement of the copyright in the copyright material.
“(5) Unless it is revoked under subsection (6), a notice under subsection (2) remains in force until:
(a) the end of the period of 2 years commencing on the day on which the notice was given; or
(b) the end of the period for which the copyright in the copyright material to which the notice relates is to subsist;
whichever is the earlier.
“(6) A notice under subsection (2) may be revoked by written notice given to the Comptroller-General by the person who gave the first-mentioned notice or by a subsequent owner of the copyright in the copyright material to which the notice relates. “(7) If:
(a) a notice has been given under subsection (2) in respect of copyright material; and
(b) the notice has not been withdrawn; and
(c) a person imports copies of the copyright material to which this section applies into Australia for the purpose of:
(i) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the copies; or
(ii) distributing the copies for the purpose of trade; or
(iii) distributing the copies for any other purpose to an extent that will affect prejudicially the owner of the copyright in the copyright material; or
(iv) by way of trade exhibiting the copies in public; and
(d) the copies are subject to the control of the Customs within the meaning of the Customs Act 1901;
the Comptroller-General may seize the copies.”;
(b) by adding at the end of each of paragraphs (8)(a) and (b) “and”;
(c) by omitting paragraphs (8)(d) and (e);
(d) by omitting from subsection (9) “printed copies of published literary, dramatic or musical works” and substituting “copies of copyright material”;
(e) by adding at the end:
“(10) This section does not apply to the importation into Australia of copies of books whose importation, by virtue of section 44A or 112A, does not constitute an infringement of copyright.”.
9. After section 135 of the Principal Act the following sections are inserted in Part V: Security for expenses of seizure
“135AA. The Comptroller-General may refuse to seize copies under subsection 135(7) unless:
(a) the objector has deposited with the Comptroller-General a sum of money that, in the opinion of the Comptroller-General, is sufficient to reimburse the Commonwealth for the reasonable expenses it is likely to incur as a result of the seizure of the copies; or
(b) the objector has given security, to the satisfaction of the Comptroller-General, for the reimbursement of the Commonwealth for those expenses.
Secure storage of seized copies
“135AB. Seized copies must be taken to such secure place as the Comptroller-General directs. Notice of seizure
“135AC.
(1) As soon as is practicable after copies are seized under subsection 135(7), the Comptroller-General must give to the importer and the objector, either personally or by post, a written notice identifying the copies and stating that the identified copies have been seized.
“(2) A notice under subsection (1) must state that the copies will be released to the importer unless:
(a) an action for infringement of copyright in respect of the copies is instituted by the objector within a specified period from the day specified in the notice; and
(b) the objector gives written notice to the Comptroller-General within that period stating that the action for infringement of copyright has been instituted.
“(3) The period to be specified for the purposes of paragraph (2)(a) is the period prescribed for the purposes of that paragraph.
“(4) The day specified for the purposes of paragraph (2)(a) must not be earlier than the day on which the notice is given.
“(5) The objector may, by written notice given to the Comptroller-General before the end of the period specified in a notice for the purposes of paragraph (2)(a) (‘the retention period’), request that the period be extended.
“(6) Subject to subsection (7), if:
(a) a request is made in accordance with subsection (5); and
(b) the Comptroller-General is satisfied that it is reasonable that the request be granted;
the Comptroller-General may extend the retention period by such period as is prescribed.
“(7) A decision on a request made in accordance with subsection (5) must be made within 24 hours after the request is made. However, such a decision cannot be made after the end of the retention period to which the request relates.
Inspection, release etc. of seized copies “135AD.
(1) The Comptroller-General may permit the objector or the importer to inspect the seized copies. “(2) If the objector gives the Comptroller-General the requisite undertakings, the Comptroller-General may permit the objector to remove one sample of the seized copies from the custody of the Comptroller-General for inspection by the objector.
“(3) If the importer gives the Comptroller-General the requisite undertakings, the Comptroller-General may permit the importer to remove one sample of the seized copies from the custody of the Comptroller-General for inspection by the importer.
“(4) The requisite undertakings are undertakings in writing that the person giving the undertaking
will:
return the sample copy to the Comptroller-General at a specified time that is satisfactory to the Comptroller-General; and
take reasonable care to prevent damage to the sample copy.
“(5) If the Comptroller-General permits inspection of the seized copies, or the removal of a sample copy, by the objector in accordance with this section, the Commonwealth is not liable to the importer for any loss or damage suffered by the importer arising out of:
(a) damage to any of the seized copies incurred during that inspection; or
(b) anything done by the objector or any other person to, or in relation to, a sample copy removed from the custody of the Comptroller-General or any use made by the objector of such a sample copy.
Forfeiture of seized copies by consent
“135AE.
(1) Subject to subsection (2), the importer may, by written notice to the Comptroller-General, consent to the seized copies being forfeited to the Commonwealth.
“(2) The notice must be given before any action for infringement of copyright in relation to the copies is instituted.
“(3) If the importer gives such a notice, the copies are forfeited to the Commonwealth and must be disposed of:
(a) in the manner prescribed by the regulations; or
(b) if no manner of disposal is so prescribed—as the Comptroller-General directs. Compulsory release of seized copies to the importer
“135AF.
(1) The Comptroller-General must release seized copies (not being copies forfeited to the Commonwealth under section 135AE) to the importer on the expiration of the retention period for the copies if the objector has not, before the expiration of that period:
(a) instituted an action for infringement of the relevant copyright in respect of the copies; and
(b) given written notice to the Comptroller-General stating that the action has been instituted.
“(2) For the purpose of subsection (1), the retention period for seized copies is:
(a) the period specified in a notice given under subsection 135AC(1) in respect of the copies; or
(b) if that period has been extended under subsection 135AC(6), that period as so extended. “(3) If:
(a) an action for infringement of copyright has been instituted in respect of seized copies; and
(b) at the end of a period of 3 weeks commencing on the day on which the action was instituted, there is not in force an order of the court in which the action was instituted preventing the release of the copies;
the Comptroller-General must release the copies to the importer.
“(4) If the objector gives written notice to the Comptroller-General stating that he or she consents to the release of the seized copies, the Comptroller-General must release the copies to the importer. “(5) This section has effect subject to section 135AH.
Provision relating to actions for infringement of copyright
“135AG.
(1) In this section, ‘infringement action’ means an action for an infringement of copyright constituted by the importation of seized copies.
“(2) The court in which an infringement action is pending may, on the application of a person having a sufficient interest in the subject-matter of the action, allow the person to be joined as a defendant to the action.
“(3) The Comptroller-General is entitled to be heard on the hearing of an infringement action. “(4) In addition to any relief that may be granted apart from this section, the court may:
(a) at any time, order that the seized copies be released to the importer subject to such conditions (if any) as the court thinks fit; or
(b) order that the seized copies not be released to the importer before the end of a specified period; or
(c) order that the goods be forfeited to the Commonwealth.
“(5) A court may not make an order under paragraph (4)(a) if it is satisfied that the Comptroller-General is required or permitted, under any other law of the Commonwealth, to retain control of the seized copies.
“(6) The Comptroller-General must comply with an order made under subsection (4). “(7) If:
(a) the court decides that the relevant copyright was not infringed by the importation of the seized copies; and
(b) a defendant to the infringement action satisfies the court that he or she has suffered loss or damage as a result of the seizure of the copies;
the court may order the objector to pay to that defendant such amount as the court determines as compensation for any part of that loss or damage that is attributable to a period beginning on or after the day on which the action was commenced.
Retention of control of seized copies
“135AH. In spite of section 135AF, in a case in which no order has been made under subsection 135AG(4) in relation to seized copies, the Comptroller-General is not obliged to release or dispose of the copies if the Comptroller-General is required or permitted, under any other law of the Commonwealth, to retain control of the copies.
Disposal of seized copies ordered to be forfeited
“135AI. If a court orders that seized copies are to be forfeited to the Commonwealth, the copies must be disposed of:
(a) in the manner prescribed by the regulations; or
(b) if no manner of disposal is so prescribed—as the Comptroller-General directs. Insufficient security
“135AJ.
(1) If the reasonable expenses incurred by the Commonwealth in relation to action taken by the Comptroller-General under this Division or taken in accordance with an order of a court under this Division exceed the amount deposited, or the amount of the security given, under section 135AA, the amount of the excess is a debt due to the Commonwealth.
“(2) The debt created by subsection (1) is due:
(a) by the objector; or
(b) if there are 2 or more objectors, by the objectors jointly and severally. Immunity of the Commonwealth
“135AK. The Commonwealth is not liable for any loss or damage suffered by a person:
because of the seizure of copies, or the failure of the Comptroller-General to seize copies, under this Division; or
because of the release of any seized copies.”.
Review of certain decisions
10. Section 195B of the Principal Act is amended:
(a) by omitting paragraph (1)(c) and substituting:
“(c) a decision of the Comptroller-General of Customs under section 135AA refusing to seize
copies under subsection 135(7); (d) a decision of the Comptroller-General of Customs not to give permission under subsection 135AD(1).”;
(b) by omitting subsection (3) and substituting:
“(3) If the Comptroller-General of Customs makes a reviewable decision referred to in paragraph (1)(c) or (d), the Comptroller-General must cause to be sent to the objector or importer whose interests are affected by the decision a notice containing:
(a) the terms of the decision; and
(b) except where subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies—a statement to the effect that the objector or importer, as the case may be, may request a statement under section 28 of that Act.”;
(c) by omitting from subsection (4) “(3)(b) or (c)” and substituting “(3)(b)”;
(d) by omitting from subsection (5) “Subject to subsection (6), application” and substituting “Application”;
(e) by omitting subsections (6) and (7).
PART 4—AMENDMENTS RELATING TO THE PROTECTION OF PERFORMERS
Interpretation
11. Section 248A of the Principal Act is amended:
(a) by inserting “or” after “in Australia” in the definition of “performance” in subsection (1);
(b) by omitting from subsection (1) the definition of “protection period” and substituting: “‘protection period’, in relation to a performance, has the meaning given by section 248CA;”.
12. After section 248C of the Principal Act the following section is inserted: Protection period
“248CA.
(1) Subject to subsections (2) and (3), the protection period of a performance is the period beginning on the day when the performance was given and ending at the end of the period of 20 calendar years after the calendar year in which the performance was given.
“(2) For the purposes of section 248QA, the protection period of a performance is the period beginning on the day when the performance was given and ending at the end of the period of 50 calendar years after the calendar year in which the performance was given.
“(3) For the purposes of the operation, in relation to a sound recording of a performance, of a provision of this Part listed in subsection (4), the protection period of a performance is the period beginning on the day when the performance was given and ending at the end of the period of 50 calendar years after the calendar year in which the performance was given.
“(4) Subsection (3) applies to the following provisions of this Part:
(a) paragraphs 248G(1)(a), (2)(a), (2)(b) and (2)(d) to (g);
(b) subsection 248P(1);
(c) subsection 248P(2);
(d) subsection 248P(6);
(e) subsection 248Q(1);
(f) subsection 248Q(2);
(g) subsection 248Q(4);
(h) subsection 248Q(6).”.
Application
13. Section 248F of the Principal Act is amended by omitting from subsection (1) “This Part applies” and substituting “Except for section 248QA, this Part applies”.
What constitutes unauthorised use
14. Section 248G of the Principal Act is amended by omitting paragraph (2) (d) and substituting:
“(d) has in his or her possession a recording of the performance, for the purpose of:
(i) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing it for the purpose of trade, or for any other purpose that will affect prejudicially the financial interests of the performer or performers in the performance;
being a recording that the person knows, or ought reasonably to know, is an unauthorised recording;”.
Other offences in relation to performances
15. Section 248Q of the Principal Act is amended by omitting subsections (4) and (5) and substituting:
“(4) A person must not, at any time during the protection period of a performance:
(a) sell, let for hire, or by way of trade offer or expose for sale or hire a recording of the performance; or
(b) distribute a recording of the performance for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance; or
(c) have in his or her possession a recording of the performance for the purpose of:
(i) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing it for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance; or
(d) import a recording of the performance into Australia for the purpose of:
(i) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing it for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance;
if the person knows, or ought reasonably to know, that the recording is an unauthorised recording.”.
16. After section 248Q of the Principal Act the following sections are inserted: Further offences relating to sound recordings of certain performances
“248QA.
(1) This section applies to an act done in Australia on or after the date of commencement of Part 4 of the Copyright (World Trade Organization Amendments) Act 1994 in relation to a performance given at any time before that date.
“(2) A person must not, at any time during the protection period of a performance, have in his or her possession any plate or recording equipment that the person knows, or ought reasonably to know, is to be used for making a copy of an unauthorised sound recording of the performance.
“(3) A person must not, at any time during the protection period of a performance, make a copy of a sound recording of the performance if the person knows, or ought reasonably to know, that the recording is an unauthorised recording.
“(4) A person must not, at any time during the protection period of a performance:
(a) sell, let for hire, or by way of trade offer or expose for sale or hire, a sound recording of the performance; or
(b) distribute a sound recording of the performance for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance; or
(c) have in his or her possession a sound recording of the performance for the purpose of:
(i) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing it for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance; or
(d) import a sound recording of the performance into Australia for the purpose of:
(i) selling it, letting it for hire, or by way of trade offering or exposing it for sale or hire; or
(ii) distributing it for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the financial interests of the performer or performers in the performance;
if the person knows, or ought reasonably to know, that the recording is an unauthorised recording.
“(5) A person must not, at any time during the protection period of a performance:
(a) by way of trade exhibit in public a sound recording of the performance; or
(b) import a sound recording of the performance into Australia for the purpose of exhibiting the recording in public by way of trade;
if the person knows, or ought reasonably to know, that the recording is an unauthorised recording.
Protection against multiple prosecutions for same act
“248QB. If an act done in relation to a performance constitutes a contravention of section 248P or 248Q and of section 248QA, a prosecution may be instituted in respect of the offence against section 248R arising out of the contravention of section 248P or 248Q (as the case may be) or the offence against section 248R arising out of the contravention of section 248QA, but not both.”.
Penalties
17. Section 248R of the Principal Act is amended:
(a) by omitting from subsection (3) “(4), (5) or (6)” and substituting “(4) or (6)”;
(b) by inserting after subsection (3):
“(3A) A person who contravenes subsection 248QA(2) is guilty of an offence punishable on conviction by:
if the person is a natural person—a fine not exceeding 15 penalty units or imprisonment for a term not exceeding 6 months, or both; or
if the person is a body corporate—a fine not exceeding 150 penalty units.
“(3B) A person who contravenes subsection 248QA(3), (4) or (5) is guilty of an offence punishable on conviction by:
(a) if the person is a natural person—a fine not exceeding 5 penalty units for each sound recording or copy to which the offence relates or imprisonment for a term not exceeding 6 months, or both; or
(b) if the person is a body corporate—a fine not exceeding 50 penalty units for each sound recording or copy to which the offence relates.”;
(c) by omitting from subsection (4) “under subsection (3)” and substituting “under subsection (3) or (3B)”.
NOTE
1. No. 63, 1968, as amended. For previous amendments, see No. 216, 1973; Nos. 37 and 91, 1976; No. 160, 1977; No. 19, 1979; No. 154, 1980; Nos. 42 and 61, 1981; No. 113, 1981 (as amended by No. 154, 1982); Nos. 26, 80 and 154, 1982; Nos. 7, 80, 91 and 136, 1983; Nos. 43 and 165, 1984; Nos. 65 and 67, 1985; Nos. 78 and 168, 1986; No. 23, 1987; No. 146, 1988; Nos. 28 and 32, 1989; Nos. 174 and 180, 1991; Nos. 105 and 167, 1992; No. 107, 1993; and No. 37, 1994.
[Minister’s second reading speech made in-
House of Representatives on 18 October 1994 Senate on 7 November 1994]
