Copyright (International Protection) Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES 1984 No. 43

COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT)

Background and authority

Section 249 of the Copyright Act 1968 (‘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.

Section 184 of the Act further provides that, in relation to a country (other than Australia) specified in the regulations, the regulations may make provision applying, in any one or more of several ways set out in the Act, any of the provisions of the Act specified in the regulations.

These ways permit the application of the principle of ‘national treatment’ which is adopted in the international copyright conventions. ‘National treatment’ means giving to nationals of the specified country the same rights under Australian law as are enjoyed by Australian nationals; treating literary, dramatic, musical or artistic works first published in that country as if they were first published in Australia; and in a similar way extending copyright protection under the Act to foreign sound recordings, cinematograph films and broadcasts and to copyright owners who are foreign residents or bodies corporate.

The Copyright (International Protection) Regulations (‘the Regulations’) give effect to the principle of national treatment in respect of copyright materials and copyright owners from foreign countries specified in the Regulations.

Sound recordings

Regulations 6 and 7 limit the protection given in Australia to foreign sound recordings by providing that no performing rights (i.e., rights to cause the recording to be heard in public and to broadcast the recording) subsist in such a recording unless the maker of the recording is a national of, a resident in, or a body corporate incorporated under the law of, a country specified in Schedule 3 of the Regulations or unless the recording was made in such a country.

Although Australia grants performing rights in copyright sound recordings, many other countries do not. No international convention to which Australia presently adheres requires granting of these rights but their value for Australian recordings would be greatly diminished if all imports were unprotected.

In order to achieve a balance between the various affected interests, successive Governments have, consistently with the regulation making provisions of the Act, adopted the following criteria in deciding whether a country is eligible for inclusion in Schedule 3:

(a) the country must be a member of either the Berne Convention for the Protection of Literary and Artistic Works or the Universal Copyright Convention;

(b) the laws of the country must give a performing right to the makers of sound recordings - this right may be an exclusive right or merely a right to equitable remuneration.

It has not been considered essential that the country should provide reciprocal protection to Australian recordings.

Schedule 3 was last revised in 1981. Since then there have been changes in the relevant laws of some countries and in the memberships of the Berne and Universal Copyright Conventions. The new Schedule 3 set out in the amendments has been revised on the basis of the abovementioned criteria.

The amendments of the Regulations have resulted in the following countries being added to Schedule 3:

Sri Lanka, which recently amended its copyright legislation, has been deleted from Schedule 3.