EXPLANATORY STATEMENT
STATUTORY RULES 1990 No. 76
Subject - Copyright Act 1968
Copyright Regulations (Amendment)
Section 249 of the Copyright Act 1968 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.
Amendments have been made to the Copyright Regulations to enable the operation of a revised statutory licence covering educational photocopying.
The Copyright Amendment Act 1989, when commenced, will insert the following new Part into the Copyright Act 1968:
Part VB (Copying of works etc. by educational and other institutions)
This statutory licence largely concerns photocopying in educational institutions. It replaces and consolidates existing provisions relating to -
• photocopying by educational institutions;
• making of “talking books” and Braille, large-print and photographic versions of works by institutions assisting handicapped readers; and
• copying and making adaptations of works or other copyright subject-matter by institutions assisting intellectually handicapped persons.
Equitable remuneration is to be paid to a collecting society representing each class of relevant copyright owner concerned ie, there may be no more than one society for each class. Institutions may elect to pay for copying either by way of a per-student annual levy set after sampling of copying patterns, or by full record-keeping (as at present) and payment for actual material copied. In either case, in the absence of agreement, the quantum of remuneration will be determined by the Copyright Tribunal. Collecting societies representing a class or classes of copyright owner are to be declared by the Attorney-General by notice in the Gazette.
Section 135ZX of the Act provides for regulations prescribing marking and record-keeping requirements in relation to the copies and adaptations made. (As to the scope of the regulation-making power see notes on regulations 23JA and 23JF-23JL.)
Sections 135ZQ and 135ZT of the Act provide for regulations prescribing marking and identification requirements in relation to certain categories of temporary working copies (unremunerated) used in the production of remunerated copies. (As to the scope of the regulation-making power see notes on regulations 23JB-23JE.)
Section 135ZZB of the Act provides, inter alia, that the Attorney-General shall not declare a body to be a collecting society unless its memorandum and articles of association contain such provisions as are prescribed, being provisions necessary to ensure that the interests of members who are relevant copyright owners or their agents are protected adequately, including provisions about certain matters stated in the section. (As to the scope of the regulation-making power see notes on regulation 23JM.)
With one exception, the regulations relate to all of the areas of regulation-making power identified above (see notes on clause 2). The exception is that no marking requirements are proposed to be prescribed under subsection 135ZX(3) of the Act where the institution concerned has elected to pay a per-student annual levy based on sampling.
In addition, the Regulations effect amendments consequential upon the repeal of existing provisions of the Act which are now replaced by Part VB. (See notes on clauses 1 and 3-8).
Details of the Regulations are attached.
ATTACHMENT
Details of Copyright Regulations (Amendment)
NOTES ON CLAUSES
CLAUSE 1: Repeal of regulations 3A and 5A
The repeal of regulation 3A is consequential upon the omission of the definition of “central records authority” in subsection 10(1) of the Act, effected by the Copyright Amendment Act 1989, item 3 of the Schedule.
The repeal of regulation 5A is consequential upon the repeal of Divisions 5A and 5B of Part III of the Act, effected by the Copyright Amendment Act 1989, item 15 of the Schedule.
Clause 2: Insertion of Part 5A
Part 5A: Copying by Educational
and Other Institutions of Works etc.
The Part heading is adapted from the heading to Part VB of the Act.
Regulation 23JA: Interpretation: The regulation adopts a number of terms which are defined for the purposes of Part VB of the Act, namely “administering body”, “collecting society”, “eligible item”, “institution”, “licensed copy”, “relevant collecting society”, “relevant copyright owner” and “rules”.
Regulation 23JB: Prescribed message - subsection 135ZQ(3) of the Act: Section 135ZQ of the Act allows the making of (in effect) temporary working copies to be used to create copies or adaptations of works for handicapped readers. Where the copy consists of a sound recording of a work (typically a “talking book” for blind persons), the regulation specifies a recorded message to be incorporated on the working copy. The prescribed message states, among other things, that the copy is to be destroyed - in accordance with the Act - within 3 months. Working copies do not have to be paid for.
Regulation 23JC: Marking of relevant reproductions - subsection 135ZQM) of the Act: The regulation sets out particulars to be marked on all temporary working copies made under section 135ZQ (see note on regulation 23JB) to be used to create copies or adaptations of works for handicapped readers. (Apart from “talking books”, forms of adaptation
include Braille, large-print and photographic versions of works.) The particulars prescribed include a statement that the copy is to be destroyed (as required by the Act) within 3 months. Alternative particulars may be agreed with the relevant collecting society.
Regulation 23JD: Prescribed message - subsection 135ZT(3) of the Act: This is a section similar to regulation 23JB, but applies to copying for intellectually handicapped persons rather than copying for handicapped readers. Section 135ZT of the Act allows the making of (in effect) temporary working copies to be used to create permanent copies for use by intellectually handicapped persons. Where the temporary copy consists of a sound recording of a work (a “talking book”) the regulation specifies a recorded message to be incorporated on the copy. The prescribed message states, among other things, that the copy is to be destroyed - in accordance with the Act - within 3 months. Working copies do not have to be paid for.
Regulation 23JE: Marking of copies - subsection 135ZT(4) of the Act: This is a provision similar to regulation 23JC, but applying to copying for intellectually handicapped persons rather than copying for handicapped readers. The regulation sets out particulars to be marked on all temporary working copies made under section 135ZT (see note on regulation 23JB). The particulars prescribed include a statement that the copy is to be destroyed (as required by the Act) within 3 months. Alternative particulars may be agreed with the relevant collecting society.
Regulation 23JF: Marking of licensed copies etc - paragraph 135ZX(1)(a) of the Act: The expression “licensed copy” is defined in section 135ZB of the Act, and covers all the categories of permanent copy (or adaptation) which are permitted to be made under Part VB of the Act. Section 135ZX of the Act deals with marking and record-keeping requirements in relation to those copies.
Regulation 23JF sets out the particulars to be marked on licensed copies (or on their container) where the institution concerned has elected full record-keeping. (Note that no marking requirements have been prescribed where the institution has elected sampling as the basis for payment.) Instead of the 3 particulars prescribed, it is sufficient if the marking consists merely of a reference number which enables the relevant collecting society ‘conveniently’ to identify the institution and to locate the actual copying record. The word ‘conveniently’ has been used to ensure that administering bodies keep copying records in a sequence that enables the collecting society to locate a relevant copying record without undue delay. In addition, alternative marking particulars may be agreed with the society. In certain places the drafting of this regulation reflects the fact that the term “relevant collecting society” is defined only in relation to a remuneration notice.
Regulation 23JG: Prescribed particulars - paragraph 135ZX(1)(b) of the Act: The regulation sets out the particulars to be recorded in copying records where the institution concerned has elected full record-keeping. Different particulars are prescribed in relation to copying of -
(1) articles contained in periodical publications;
(2) works other than articles in periodical publications;
(3) published sound recordings or cinematograph films.
Regulation 23JH: Prescribed retention period - paragraph 135ZX(1)(c) of the Act: The regulation specifies 2 years as the period for which each copying record must be retained.
Regulation 23JJ: Sending of copies of records - paragraph 135ZX(1)(d) of the Act: The regulation requires copying records to be sent to the collecting society by registered or certified mail within 21 days from the end of each calendar quarter.
Regulation 23JK: Prescribed manner of keeping records - paragraph 135ZX(2)(a) of the Act: The regulation allows copying records to be kept on computer. (Note that section 25A of the Acts Interpretation Act 1901 relates to the production of records kept in computers. Where a person who keeps computer records is required to produce a record then that person is deemed to be required to produce the record in a form capable of being understood. Accordingly, when such records are sent to the collecting society under the preceding regulation they would need to be reduced to an appropriate form, or supplied in a computer-readable form suitable for the collecting society’s purposes.)
Regulation 23JL: Prescribed form - paragraph 135ZX(2)(b) of the Act: The regulation prescribes the form in Schedule 11A as the form for copying records.
Regulation 23JM: Prescribed provisions - paragraph 135ZZB(3)(d) of the Act: This is a regulation similar to regulation 23J (which relates to the collecting society under the broadcast copying scheme).
The regulation prescribes provisions which must be included in the rules (memorandum and articles of association) of the collecting society. (These provisions are additional to the provision, required by paragraph 135ZZB(3)(c) of the Act, prohibiting payments of dividends.)
The provisions are, in the language of paragraph 135ZZB(3)(d) of the Act, “necessary to ensure that the interests of members of a collecting society who are relevant copyright owners or their agents are protected adequately”. They include provisions that the operations of the society be divided into accounting periods, and that a consistent practice be followed in attributing receipts and expenditure to particular periods (see paragraphs (a) and (b) of subregulation 23JM(1)). Those requirements are intended to ensure that the society maintains an even hand between current and future beneficiaries.
In addition, as required in paragraph 135ZZB(3)(d) of the Act, they include provisions about -
(i) the collection of equitable remuneration: Paragraph (c) of subregulation 23JM(1) requires reasonable diligence in the collection of equitable remuneration due to the society. It is not intended, however, that the society be heedless of the expense entailed in collecting every amount of remuneration due. Reasonableness is a matter for the society’s Directors, and the members in general meeting, to judge;
(ii) the payment of administrative costs: Paragraph (d) requires a limit on gifts for cultural and benevolent purposes. Paragraph (e) requires a provision that the general administrative costs and other outgoings be reasonable. Beyond this, reasonableness is a matter for the society’s Directors, and the members in general meeting, to judge;
(iii) distribution: This is dealt with in 2 stages.
Paragraph (f) requires a provision that the “distributable amount” in each accounting period be allocated to “qualified persons” in accordance with criteria stated in the society’s rules. The “distributable amount” is defined, in summary, as the net amount of equitable remuneration available for distribution after gifts and expenses have been met. The amount “available” may include amounts of remuneration collected in respect of an earlier period which have been held on trust (see (iv) below) and which remain unclaimed at the end of the trust period. The definition also envisages that the society may withhold from distribution amounts necessary to fund continued operation pending receipt of further remuneration. As the society becomes established on a firm footing it is envisaged that the amount brought forward at the beginning of a current period would approximately offset the amount withheld from distribution and carried into the succeeding period. “Qualified persons” include relevant copyright owners or members of the society representing them.
Paragraph (g) deals with actual distribution. Shares allocated to members are to be distributed to them. Shares allocated to relevant copyright owners who are non-members are to be held in trust and distributed when the owner is a member or is represented by an agent who is a member;
(iv) holding of amounts on trust for relevant copyright owners who are not members: Paragraph (h) requires a provision that a trust fund be operated, inter alia, for the above purpose. Paragraph (i) requires the rules to state a minimum period (at least 4 years) during which amounts which cannot be allocated or distributed must be held in the trust fund. Apart from the case of non-members, this might apply, for example, where available data on copying patterns is not yet sufficient to enable an allocation to be completely effected, or where, even though a complete allocation has taken place, the society has lost contact with a member entitled to a share;
(v) access to records of the society by members: Paragraph (j) states that the rules must guarantee members reasonable access to the records of the society. Once again, reasonableness is a matter for the society’s Directors and members in general meeting, to judge.
CLAUSE 3: Repeal of regulation 25AA
Consequential upon the repeal of section 200A of the Act, effected by the Copyright Amendment Act 1989, section 25.
CLAUSE 4: Prescribed retention period for the purposes of Part X of the Act
Regulation 25A is to be amended to update the list of sections of the Act in relation to which a retention period is prescribed by the regulation. Addition of the reference to section HOB of the Act is consequential upon the insertion of that section, effected by the Copyright Amendment Act 1986. Deletion of the references to sections 53B and 53D is consequential upon the repeal of Divisions 5A and 5B of Part III of the Act, effected by the Copyright Amendment Act 1989, item 15 of the Schedule.
CLAUSE 5: Repeal of regulation 25B
Consequential upon the repeal of section 203B of the Act, effected by the Copyright Amendment Act 1989, item 28 of the Schedule.
CLAUSE 6: Repeal of Schedules 4,5, 6 and 7
The repeal of Schedules 4, 5, 6 and 7 is consequential upon the repeal of Divisions 5A and 5B of Part III of the Act, effected by the Copyright Amendment Act 1989, item 15 of the Schedule.
CLAUSE 7: Schedule 11A
The repeal of existing Schedules 11A, 11B and 11C is consequential upon the repeal of section 200A of the Act, effected by the Copyright Amendment Act 1989, section 25.
New Schedule 11A sets out a form of copying record for the purposes of new regulation 23JL. The form is to be used to record copying under Part VB of the Act (Copying of works etc. by educational and other institutions).