Copyright (International Protection) Amendment Regulations 2001 (No. 1) 2001 No. 29
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 29
Issued by the authority of the Attorney-General
Copyright Act 1968
Copyright (International Protection) Amendment Regulations 2001 (No. 1)
The Copyright Act 1968 (the Act) grants and determines the scope of copyright in Australia.
Section 249 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the regulations is to bring up to date provisions of the Copyright (International Protection) Regulations (the Principal Regulations) which extend copyright protection in Australia to foreign works and subject matter either to comply with the obligations of a multilateral convention or on the basis of substantive reciprocity.
Under the Act, copyright protection is provided to original literary, dramatic, musical and artistic works as well as to other subject matter (cinematographic films, sound recordings, broadcasts and published editions) where there is a relevant connection with Australia, such as if the author is an Australian citizen or resident, or the copyright material is first published in Australia. In addition, Australia is a member of several multilateral conventions which provide for an international copyright system through the principle of national treatment (formal reciprocity) which requires each convention country to give, with some exceptions, the same rights to nationals of other convention countries as it gives to its own nationals under its domestic law.
Section 184 authorises the making of regulations in relation to foreign works and subject matter. Subsection 184(1) provides that the regulations made under the Act may apply any of the provisions of the Act (other than Part XIA which deals with performers' rights) to a country other than Australia in specified ways. Such regulations may apply a provision of the Act to another country without exception or modification, or subject to such exceptions or modifications as may be specified generally or in relation to such subject matter as may be specified. However, the regulations may not be made in relation to a country that is not a party to a convention relating to copyright to which Australia is also a party, unless the Governor-General is satisfied that, in respect of the class of works or other subject matter to which those provisions relate, provision has been or will be made under the law of that country by virtue of which adequate protection is or will be given to Australian copyright owners (subsection 184(3)). In other words, a requirement of substantive reciprocity must be satisfied where protection is extended other than to satisfy a requirement of national treatment that applies under the multilateral copyright conventions.
The principal mechanism by which Australia meets its convention obligations to provide national treatment is regulation 4 of the Principal Regulations which extends the application of the provisions of the Act to works and editions first published, and sound recordings and cinematographic films made or first published, in a country specified in Part 1, Part 11 or Part V of Schedule 1, in a like manner as those provisions apply in relation to works and editions first published and sound recordings and cinematographic films made or first published in Australia. Similar provision is made in respect of works or other subject matter made by persons who are citizens or nationals of a country specified in Schedule 1. Part 1 of Schedule 1 lists countries that are parties to the Berne Convention, Part 11 lists parties to the Universal Copyright Convention that are not parties to the Berne Convention or members of the World Trade Organization and Part V lists members of the World Trade Organization.
As indicated, section 184 of the Act does not authorise extending performers' rights under Part XIA of the Act to foreign performances. This is provided for under section 248U, which mirrors section 184, and is implemented by regulations 4A and 4B. Under regulation 4A, the provisions of Put XIA of the Act apply to a performance given in a country specified in Part IV of Schedule 1 (a Rome Convention country) in the same way as those provisions apply to performance given in Australia. Regulation 4B extends the application of Part XIA to performances that are connected with World Trade Organization member countries that are not party to the Rome Convention, that is, countries specified in Part V but not in Part IV of Schedule 1.
Neither the Berne Convention nor the Universal Copyright Convention require members to protect foreign sound recordings. Nevertheless, regulation 4, among other things, extends the copyright conferred under subsection 89(3) of the Act to recordings first published in Australia to a recording first published in a country listed in Part 1, Part II or Part V of Schedule 1. Regulations 6 and 7 impose certain restrictions on the scope of this protection in relation to the right to cause a recording to be heard in public or to be broadcast (that is, 'secondary uses' of sound recordings). The effect of these regulations is that, when a recording has been published in Australia, or a period of seven weeks has elapsed from the date of first publication elsewhere, the copyright conferred by regulation 4 does not include the right to cause the recording to be heard in public, or to be broadcast, unless the maker of the recording was a citizen or national of a country specified in Schedule 3 or the recording was made in a country specified in Schedule 3.
Schedule 3 lists countries which recognise broadcast and public performance rights in sound recordings. The provisions of the Act dealing with such secondary uses of sound recordings are extended to the countries specified in Schedule 3 under the authority of section 184(3) that the Governor-General is satisfied that provision hag been made under the law of that country by virtue of which adequate protection is given to owners of copyright under the Australian Act. It is assessed that the domestic laws of Canada, Mexico, Netherlands, and Venezuela provide adequate protection to Australian copyright owners in respect of secondary uses of sound recordings.
The regulations:
• amend Part 1, Part 11, Part IV and Part V of Schedule 1 to bring up to date the membership of the relevant copyright treaties and of the World Trade Organization;
• add Canada, Mexico, Netherlands, and Venezuela to Schedule 3; and
• update the names of countries specified in Schedules 1 and 3 in accordance with current short-form descriptions sanctioned by United Nations usage and the Acts Interpretation Act 1901.
Details of the regulations are included in the Attachment.
The regulations commence on gazettal.
ATTACHMENT
Regulation 1 will provide that the amendment regulations are the Copyright (International Protection) Amendment Regulations 2001 (No. 1).
Regulation 2 will provide that the amendment regulations commence on gazettal.
Regulation 3 is a machinery provision that will provide that Schedule 1 to the amendment regulations amends the Principal Regulations.
Schedule 1, item 1 will amend paragraph 3(4)(e) of the Principal Regulations to omit reference to "of Great Britain and Northern Ireland". The effect of this amendment is that references to "the United Kingdom of Great Britain and Northern Ireland" will instead read as references to "the United Kingdom". The purpose of this amendment is to take account of subsection. 18(a) of the Acts Interpretation Act 1901 which provides that "the United Kingdom" shall mean "the United Kingdom of Great Britain and Northern Ireland".
Schedule 1, item 2 will make consequential amendments to various regulations to reflect the change in the headings of the various parts of Schedule 1 from Roman numerals to Arabic numerals.'
Schedule 1, item 3 will substitute a new Schedule 1 and Schedule 3 of the Principal Regulations. It will amend Part 1 of Schedule 1 to add the following countries that have joined the Berne Convention for the protection of literary and artistic works since the Schedule was last updated in 1998: Antigua and Barbuda; Armenia; Azerbaijan; Bangladesh; Belize; Dominica; Jordan; Kazakhstan; Kyrgyzstan; Nicaragua; Oman; Qatar; and Tajikistan.
Item 3 will amend Part 2 of Schedule 1 to omit Kazakhstan. and Tajikistan. Part 2 of Schedule 1 provides a list of states party to the Universal Copyright Convention that are not party to the Berne Convention, nor members of the World Trade Organization (WTO). Kazakhstan and Tajikistan became parties to the Berne Convention in 1999 and 2000 respectively.
Item 3 will amend Part 4 of Schedule 1 which lists the members of the
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, as a result of recent accessions to that convention since the Schedule was last amended in 1998. The following countries will be added: Albania; Belgium; Croatia; Dominica; Estonia; Latvia; Liechtenstein; Lithuania; Nicaragua; and Romania.
Item 3 will amend Part 5 of Schedule 1 that lists countries that are members of the World Trade Organization (WTO). The countries to be added have become members of the WTO since the Part was last amended in 1998. Those countries are: Albania; Croatia; Estonia; Georgia; Jordan; Kyrgyzstan; Latvia and Oman.
Item 3 will amend Schedule 3 that provides a list of countries that provide public performance and broadcasting rights in respect of sound recordings. The list of countries in Schedule 3 is used in relation to the provision under regulations 6 and 7. Schedule 3 is not included to meet treaty obligations. The protection for sound recordings that it provides is extended to recordings originating in the listed foreign jurisdictions on the basis of an assessment that the laws of those countries provide for substantially equivalent protection of Australian sound recordings as applies under the Australian Copyright Act. Item 3 will add the following countries: Canada; Mexico; Netherlands; and Venezuela. Item 3 will also amend the reference to "Czechoslovakia" to instead refer to "Czech Republic" and "Slovakia", following the separation of that country into separate states.
Item 3 will also amend the nomenclature of the following countries in Schedule 1 and Schedule 3 for conformity with current short-form descriptions sanctioned by United Nations usage and the Acts Interpretation Act 1901: "Bosnia and Herzegovina", formerly referred to as "Bosnia Herzegovina"; "Cameroon", formerly referred to as "Cameroon, Republic of'; "China", formerly referred to as "China, People's Republic of"; "Congo, Democratic Republic of", formerly referred to as "Democratic Republic of the Congo"; "Congo, Republic of", formerly referred to as "Congo"; "Croatia", formerly referred to as "Croatia, Republic of"; "Egypt", formerly referred to as "Egypt, Arab Republic of"; "Gambia", formerly referred to as "The Gambia, Republic of"; "Germany" formerly referred to as "Germany, Federal Republic of"; "Kenya", formerly referred to as "Kenya, Republic of"; "Lesotho", formerly referred to as "Lesotho, Kingdom of"; "Macedonia, former Yugoslav Republic of", formerly referred to as "The former Yugoslav Republic of Macedonia"; "Moldova, Republic of", formerly referred to as "Moldova"; "Slovakia", formerly referred to as "Slovak Republic"; "Slovenia", formerly referred to as Slovenia, Republic of"; "Tanzania, United Republic of", formerly referred to as "Tanzania"; and "United Kingdom", formerly referred to as "United Kingdom of Great Britain and Northern Ireland".