Copyright (International Protection) Regulations (Amendment) 1992 No. 124
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 124
Issued by the Authority of the Attorney-General
Copyright Act 1968
Copyright (International Protection) Regulations (Amendment)
Section 249 of the Copyright Act 1968 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Amendments have been made to the Copyright (International Protection) Regulations (the Regulations) applying the provisions of the Act relating to performers' protection and copyright in sound and television broadcasts in relation to Spain and Argentina.
Subsection 184(3) of the Act provides that regulations applying any of the provisions of the Act in relation to a country, not being a country that is a party to a Convention relating to copyright to which Australia is also a party, shall not be made unless the GovernorGeneral 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 owners of copyright under the Act.
Subsection 248U(3) provides that regulations shall not be made applying any of the provisions of Part XIA in relation to a foreign country that is not a party to a Convention relating to the protection of performers to which Australia is also a party unless the Governor-General is satisfied that, in respect of the performances to which those provisions relate, provision has been or will be made under the law of that country under which adequate protection is or will be given to a performer whose performances are protected under the Act.
As a result of the amendments, the Regulations will extend protection under the Act to performers who are nationals or residents of Spain and Argentina, or whose performances take place in Spain and Argentina, or are incorporated in a sound recording or a broadcast made in or by nationals of those countries. Further, the Regulations as amended extend protection under the Act to broadcasters based in, and making broadcasts from, Spain and Argentina.
Spain and Argentina are members of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention). Australia is not as yet a member of the Rome Convention, to which it is, however, proposed that Australia will accede. Article 2 of the Rome Convention imposes an obligation of providing national treatment on all member countries, ie, a member country must provide to nationals of other member countries the same protection as is accorded to its nationals, being at least the minimum protection guaranteed by the Convention. Australia already provided the same protection as is accorded to its nationals consistent with the minimum protection required by the Convention to member countries of the Rome Convention other than Spain and Argentina. Because of the obligation on Spain and Argentina on becoming members of this Convention, to which it is proposed Australia will accede, to provide national treatment to performers and broadcasters of other member countries, the Governor-General is satisfied, in accordance with the provisions of subsections 184(3) and 248U(3) of the Act, that adequate protection will be given by Spain and Argentina to performers and owners of copyright in sound and television broadcasts under the Act.
Overview
The Copyright (International Protection) Regulations (Amendment) 1992 was enacted to amend the existing Copyright (International Protection) Regulations, extending the application of the Copyright Act 1968 to Spain and Argentina. The Copyright Act 1968, enacted by the Parliament of Australia, provides the framework for the protection of copyright in Australia. The amendment was made to address the need for reciprocal protection of copyright in sound and television broadcasts, as well as performers' rights, in relation to Spain and Argentina. The Attorney-General issued Statutory Rules 1992 No. 124 under the authority granted by the Act, ensuring that the regulations meet the policy objective of providing adequate protection to Australian copyright holders and performers in these countries. The amendments ensure that the regulations comply with the requirements of subsections 184(3) and 248U(3) of the Act, by confirming that Spain and Argentina, as members of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, will provide adequate protection to Australian copyright holders and performers.
Scope and Application
The Copyright (International Protection) Regulations (Amendment) 1992 extends the provisions of the Copyright Act 1968 to include performers and broadcasters in Spain and Argentina, as well as sound recordings and broadcasts made in or by nationals of these countries. This legislative change is pursuant to the authority granted under section 249 of the Act, which allows for the creation of regulations by the Governor-General to enhance international copyright protection. The amendment ensures that the protections afforded under Australian law are reciprocally extended to Australian copyright holders and performers in Spain and Argentina, provided that these countries offer equivalent protection to Australian nationals. The application of these regulations hinges on the satisfaction of the Governor-General that Spain and Argentina, as members of the Rome Convention, will offer adequate protection, in line with the obligations of the Convention. The regulations do not apply to countries that are not party to the relevant international conventions unless similar conditions of protection are met.
Key Provisions
The main operative sections of the Copyright (International Protection) Regulations (Amendment) 1992 (No. 124) amend the existing regulations to provide protection for performers and broadcasters under the Copyright Act 1968 (the Act) in relation to Spain and Argentina. These amendments extend the provisions of the Act to performers who are nationals or residents of Spain and Argentina, or whose performances take place in those countries, or are incorporated in a sound recording or a broadcast made by nationals of those countries (section 184(3)). Similarly, the amendments extend protection to broadcasters based in, and making broadcasts from, Spain and Argentina (subsection 248U(3)).
The obligations imposed by these amendments are primarily on the Governor-General, who must be satisfied that adequate protection will be given by Spain and Argentina to Australian performers and broadcasters. This is in accordance with the provisions of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention), to which Spain and Argentina are members and to which Australia is proposed to accede. This convention imposes an obligation on member countries to provide national treatment to the nationals of other member countries, meaning they must provide the same protection to them as they do to their own nationals.
The consequences for breach of these provisions are not explicitly stated in the Regulations but would generally follow from the breach of the provisions of the Copyright Act 1968. Under the Act, breaches of copyright can result in both civil and criminal penalties. Civil penalties can include damages or an account of profits, while criminal penalties can include fines and imprisonment. For example, subsection 116(2) of the Act states that a person who infringes copyright can be liable to pay damages or an account of profits to the copyright owner, and subsection 117(1) states that a person who wilfully infringes copyright can be guilty of a criminal offence and be liable to a fine or imprisonment.