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:
Colombia | Holy See |
Costa Rica | Paraguay |
Ecuador | Turkey |
Guatemala | Uruguay |
Guinea | |
Sri Lanka, which recently amended its copyright legislation, has been deleted from Schedule 3.
Overview
The Copyright (International Protection) Regulations (Amendment) Statutory Rules 1984 No. 43 were introduced to address the need for updating the list of countries whose nationals and residents are granted performing rights for sound recordings in Australia. Enacted by the Australian Government, these amendments aim to ensure that Australia's copyright laws provide adequate protection for Australian sound recordings while also applying the principle of national treatment as required by international copyright conventions. By aligning the list of eligible countries with current memberships of the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention, and ensuring that these countries grant performing rights to the makers of sound recordings, the Regulations seek to strike a balance between protecting Australian interests and complying with international obligations.
The amendments have resulted in the inclusion of several new countries in Schedule 3, such as Colombia, the Holy See, Costa Rica, Paraguay, Ecuador, Turkey, Guatemala, Uruguay, and Guinea, while removing Sri Lanka, reflecting recent changes in international copyright laws and conventions.
Scope and Application
The Copyright (International Protection) Regulations (Amendment) concern the application of the Copyright Act 1968 to foreign copyright materials and copyright owners. These regulations, made under section 249 of the Act, aim to provide international copyright protection by applying the principle of national treatment, which involves treating foreign nationals and their works as Australian nationals and their works are treated under Australian law. This is achieved by specifying the countries that qualify for such treatment, detailed in Schedule 3 of the Regulations. The application of the principle of national treatment is particularly relevant to sound recordings, where the regulations determine the extent of performing rights granted to foreign recordings based on the country of origin and the nationality or residency of the recording's maker. The amendments to the Regulations update the list of countries included in Schedule 3, reflecting changes in international conventions and national copyright laws. This ensures that the regulation aligns with current international standards and practices, maintaining a balance between the interests of Australian and foreign copyright holders.
Key Provisions
The key operative sections of the Copyright (International Protection) Regulations (Amendment) are sections 6 and 7, which deal with the protection of foreign sound recordings in Australia (section 6). These sections specify that performing rights in foreign sound recordings will only exist if the recording was made by a national of, a resident in, or a body corporate incorporated under the law of, a country listed in Schedule 3, or if the recording was made in such a country. This regulation ensures that only those countries which meet certain criteria receive protection for their sound recordings in Australia. These criteria are outlined in the explanatory statement and include being a member of the Berne Convention for the Protection of Literary and Artistic Works or the Universal Copyright Convention, and having laws that grant a performing right to the makers of sound recordings.
The obligations imposed by the Regulations on parties and entities are primarily concerned with compliance with the conditions set out in Schedule 3. For foreign sound recordings to be protected in Australia, the recording must meet the criteria outlined in sections 6 and 7 of the Regulations. This means that the recording must be made by a national of, a resident in, or a body corporate incorporated under the law of, a country listed in Schedule 3, or the recording itself must have been made in such a country. These conditions ensure that only those countries which meet the specified criteria receive protection for their sound recordings in Australia, thus adhering to the principle of national treatment.
There are no specific offences, penalties, or consequences outlined in the Explanatory Statement for breach of the Regulations. However, the Regulations are made under the authority of the Copyright Act 1968, which contains provisions for offences and penalties for breaches of copyright law. These may include civil and criminal penalties for unauthorised use of copyrighted material, with maximum penalties varying depending on the nature and extent of the infringement. It is important for parties and entities to ensure compliance with the Regulations to avoid any potential legal consequences arising from breaches of copyright law.