EXPLANATORY STATEMENT
COPYRIGHT REGULATIONS (AMENDMENT)
1987 No. 34
Section 249 of the Copyright Act 1968 (‘the Act’) provides that the Governor-General may, among other things, make regulations that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Copyright Amendment Act 1986 amends the Act by inserting, among other things, sections 47A and 200A. These amendments are expressed to take effect on Proclamation.
Section 47A of the Act, among other things, deals with the making of sound broadcasts by holders of print - handicapped radio licences. The section provides that there is no infringement of the copyright in a published literary or dramatic work by the making of a sound broadcast of the work, provided certain conditions are complied with. In particular, a record of the making of the broadcast is required. The requirements in respect of such record are set out in paragraph 47A(1)(b) and sub-section 47A(2).
Paragraph 47A(1)(b) provides, among other things, for the record to contain the time and date of the making of the broadcast, identify the work and contain particulars of such other matters in relation to the work or broadcast as are prescribed. Sub-section 47A(2) provides that, for the purposes of paragraph 47A(1)(b), a record of the making of the broadcast may be made in writing or in any other manner prescribed by the regulations and that, if it is in writing, shall be in accordance with the form prescribed by the regulations. Sub-section 47A(3) of the Act provides, in effect, for the retention of a record for a ‘prescribed retention period’. That term is defined in paragraph 47A(11)(a) as the period prescribed by the regulations.
Section 200A of the Act deals with the copying of ‘eligible items’ (eg. published sound recordings or cinematograph films) by institutions assisting intellectually handicapped persons. The section provides that there is no infringement of the copyright in an eligible item by the making of a copy of the whole or a part of the eligible item provided certain conditions are complied with. In particular, (and as with section 47A) a record of the making of a copy is required. The requirements in respect of a record are set out in sub-sections 200A(3) and (4). Paragraphs 200A(3)(a) and (b) set out the particulars to be recorded where a copy is made of the whole or a part of an article contained in a periodical publication or works other than articles. Paragraph 200A(3)(c) provides, in effect, that, in the case of any other work, a record of the making of the work is to contain particulars of such matters as are prescribed.
Details of the amendments of the Copyright Regulations (‘the Regulations’) are as follows:
Regulation 1 provides that, in the amending regulations, ‘Principal Regulations’ means the Copyright Regulations.
Regulation 2 amends the Regulations by inserting regulation 4C after regulation 4B of those Regulations.
Sub-regulation 4C(1) prescribes, for the purposes of sub-paragraph 47A(1)(b)(iii) of the Act, particulars to be contained in the record of the making of a sound broadcast of a work. These particulars are the page numbers of the pages in the volume of the work broadcast or, where no number exists, such description of the page as will enable it to be identified. These particulars are additional to those required by the Act, namely, the time and date of the making of the broadcast and particulars which identify the relevant work. The purpose of requiring these particulars is to enable the owner of the copyright in the work, upon inspection of the records, to identify the work and ascertain the extent of its use in order that such owner may make a request to the broadcaster for payment for such use.
Sub-regulation 4C(2) provides that a record of the making of a broadcast may be made in any manner that permits the information in the record to be elicited by the use of a computer. The purpose of this provision is to facilitate the efficient keeping of records, which is to the benefit of both the copyright owner and user.
Sub-regulation 4C(3) provides that, where a record of the making of a broadcast is made in writing, that record shall be made in accordance with the form in Schedule 3A to the Regulations, in the case where the relevant work is an article contained in periodical publication, or Schedule 3B in any other case. Strict compliance with the forms is unnecessary and substantial compliance is sufficient (sub-regulation 4C(4)).
The period for which a record is to be retained for the purposes of sub-section 47A(11)(a) of the Act is 4 years (sub-regulation 4C(5)).
Regulation 3 amends the Regulations by inserting regulation 25AA after regulation 25A of those Regulations. Sub-regulation 25AA(1) prescribes, for the purposes of paragraph 200A(3)(c) of the Act, particulars to be contained in the record of the making of a copy of a published sound recording or cinematograph film or a sound or television broadcast. These particulars are -
• the title or description of the recording, film or broadcast
• the name of the maker of the copy of the recording, film or broadcast
• the date on which the copy was made
• the form in which the copy was made
As with regulation 4C, those particulars facilitate inspection, indentification by, and ultimate payment of, the owner of the copyright in the relevant eligible item in respect of the making of copy of the work by, or on behalf of, the body administering an institution assisting intellectually handicapped persons.
Sub-regulation 25AA(2), like regulation 4C, provides that a record of the making of a copy of the whole or part of an eligible item may be kept by computer, instead of being kept in writing.
Sub-regulation 25AA(3), again like regulation 4C, provides that, where the record is kept in writing, the record shall be in accordance with the “forms respectively prescribed in Schedules 11A, 11B and 11C to the Regulations. Strict compliance with the forms is not necessary and substantial compliance is sufficient (sub-regulation 25AA(4)).
Regulation 4 amends the Regulations by inserting Schedules 3A and 3B after Schedule 3. These Schedules contain the particulars which must be kept of the making of a sound broadcast of a work under sub-section 47A(1) of the Act where that record is kept in writing. The purpose of the forms is to provide a ‘check list’ of particulars relevant to the making of the broadcast which will facilitate compliance with the statutory requirements relating to record keeping.
Regulation 5 amends the Regulations by inserting Schedules 11A, 11B and 11C after Schedule 11. These Schedules contain the particulars which must be kept of the making of a copy of a work under sub-section 200A(3) of the Act where that record is kept in writing. The purpose of these Schedules is the same as that referred to above in relation to Schedules 3A and 3B.