Circuit Layouts Regulations (Amendment) 1991 No. 459
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 459
Issued by the Authority of the Attorney-General
Subject - Circuit Layouts Act 1989
Circuit Layouts Regulations (Amendment)
Section 48 of the Circuit Layouts Act 1989 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed for carrying out or giving effect to it.
Section 42 of the Act enables a country to be declared to be an eligible foreign country if the Governor-General is satisfied that, although the foreign country is not a party to a convention relating to circuit layouts, provision is or will be made under the law of that country whereby adequate protection is, or will be, given to circuit layouts made by citizens or residents of, or companies incorporated in, Australia and to circuit layouts first commercially exploited in Australia.
The Regulations amend the Schedule to the Circuit Layouts Regulations to include New Zealand in the list of eligible foreign countries.
In March 1991, the New Zealand Government requested that New Zealand be declared an 'eligible foreign country' for the purposes of the Act. The New Zealand Government submits that circuit layouts are protected under the New Zealand Copyright Act 1962 (the NZ Copyright Act) as 'artistic works'. Under the Copyright (International Conventions) Order 1964 artistic works made by an Australian citizen or resident are protected under the NZ Copyright Act as if they were made by a New Zealand citizen or resident. First commercial exploitation of a circuit layout in Australia will not, however, be sufficient for protection under the NZ Copyright Act, although if commercial exploitation amounted to publication within the meaning of that Act the circuit layout would be protected. By contrast the Circuit Layouts Act provides that first commercial exploitation of the layout in Australia or an 'eligible foreign country' is one of the grounds for affording protection to the layout in Australia (s.5). The New Zealand Government has advised that it is presently considering enacting specific legislation for circuit layouts which would afford substantially similar protection to Australian circuit layouts as is provided by the Circuit Layouts Act.
Notwithstanding the difference noted above between Australian and New Zealand law regarding the protection of circuit layouts, the Governor-General is satisfied that adequate protection is, or will be, given to circuit layouts which are made by Australian citizens, residents or companies or which are first commercially exploited in Australia. Accordingly, New Zealand has been declared an eligible foreign country for the purposes of the Circuit Layouts Act.
Overview
The Circuit Layouts Regulations (Amendment) 1991 No. 459 were enacted to address the need for updating the list of eligible foreign countries under the Circuit Layouts Act 1989. This Act, enacted by the Australian Parliament, was established to provide protection for integrated circuit layout-designs, commonly known as circuit layouts. The 1991 amendment was introduced to address the gap in recognising New Zealand as an eligible foreign country for the protection of Australian circuit layouts. The Regulations amend the Schedule to the Circuit Layouts Regulations, adding New Zealand to the list of countries deemed to provide adequate protection for circuit layouts created or first commercially exploited in Australia. This amendment was made in response to a request from the New Zealand Government, which sought recognition under the Act, asserting that circuit layouts are protected under the New Zealand Copyright Act 1962 as 'artistic works'. The Governor-General, satisfied with the protections in place and those to be enacted by New Zealand, declared New Zealand an eligible foreign country under the Circuit Layouts Act 1989.
Scope and Application
The Circuit Layouts Regulations (Amendment) 1991 No. 459 pertains to the Circuit Layouts Act 1989, which provides legal protection for circuit layouts created by Australian citizens, residents, or companies, as well as those first commercially exploited in Australia. The Act allows the Governor-General to issue regulations that are consistent with the Act, and these Regulations amend the Schedule to the Circuit Layouts Regulations to include New Zealand as an eligible foreign country. This amendment follows a request from the New Zealand Government in March 1991, which demonstrated that New Zealand would provide adequate protection for circuit layouts under its existing copyright law, despite some differences in the specific criteria for protection compared to Australia. The amendment is based on the New Zealand Government's assurance that it is considering specific legislation for circuit layouts that would offer similar protection. The inclusion of New Zealand as an eligible foreign country under the Act extends its protection to circuit layouts made by Australians and those first commercially exploited in Australia.
Key Provisions
The Circuit Layouts Regulations (Amendment) 1991 No. 459 introduces an amendment to the Schedule of the Circuit Layouts Regulations 1989, specifically by adding New Zealand to the list of eligible foreign countries (s. 3). This amendment is based on a request from the New Zealand Government, which has assured that adequate protection will be given to circuit layouts made by Australian citizens, residents, or companies, and to those first commercially exploited in Australia. Section 42 of the Circuit Layouts Act 1989 (the Act) allows for a country to be declared eligible if it provides sufficient protection for Australian-made or first-commercially exploited circuit layouts, even if it is not a party to the relevant international convention. The New Zealand Government has submitted that under the New Zealand Copyright Act 1962, circuit layouts are protected as 'artistic works', although the specific conditions for protection differ from those under the Australian Act. Nevertheless, the Governor-General is satisfied that New Zealand’s existing and proposed legislation will offer adequate protection.
The Act imposes obligations on parties and entities to ensure that circuit layouts are protected adequately in both Australia and any eligible foreign country. Under Section 5 of the Act, circuit layouts are afforded protection if they are made by an Australian citizen, resident, or company, or if they are first commercially exploited in Australia or an eligible foreign country. The Regulations mandate that New Zealand must meet these criteria to be included in the list of eligible countries, thereby ensuring that the reciprocal protection provisions of the Act are satisfied. Additionally, the Act requires that adequate legal provisions are in place to safeguard the intellectual property rights of Australians in foreign jurisdictions.
Failure to comply with the provisions of the Act or the Regulations could result in significant consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is implied that breaches could lead to legal actions under the Act. The penalties for such breaches could include fines and other civil or criminal sanctions, as typically prescribed under Australian legislation concerning intellectual property and international agreements. The maximum penalties for such offences would align with those stipulated under the broader legislative framework governing intellectual property rights in Australia.