Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1)

Administered by Attorney-General's Department

Legislation au F2005B00044 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Statutory Rules 2004 No. 363

Issued by the authority of the Attorney-General

The Copyright Act 1968 (the Act) grants and determines the scope of copyright in Australia.

Section 249 of the Act provides, in part, 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 166 of the Act authorises the making of regulations for or in relation to the procedure in connection with the making of references and applications to the Copyright Tribunal and the regulation of proceedings before the Tribunal. The Copyright Tribunal is constituted by the Act and is given a range of functions including the determination of remuneration for the use of copyright material under statutory licences.

The US Free Trade Agreement Implementation Act 2004 (the USFTA Act) contains 10 schedules that amend the relevant Australian legislation to fulfil Australia's obligations under the Australia-United States Free Trade Agreement (AUSFTA). The USFTA Act received Royal Assent on 16 August 2004. Schedule 9 to the USFTA Act amends the Act to fulfil obligations under Chapter 17 of the AUSFTA, which deals with Intellectual Property Rights. Article 17.4.1 of the AUSFTA requires Australia to accede to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT). Article 9 of the WCT requires contracting parties to align the term of protection of photographs with that of other artistic works. Part 5 of Schedule 9 to the USFTA Act makes amendments to the Copyright Act to fulfil this obligation.

Article 17.4.4 of the AUSFTA requires Australia to extend the term of protection of works (including photographs) by 20 years to the life of the author plus 70 years and that of films and sound recordings also by 20 years to 70 years after publication. Part 6 of Schedule 9 to the USFTA Act makes amendments to the Copyright Act to fulfil this obligation.

The USFTA Act enables a person to obtain reasonable compensation from a copyright owner where the extension of the term of protection under Part 5 or Part 6 to Schedule 9 frustrates an agreement made before 16 August 2004 (the date of Royal Assent of that Act). Where reasonable compensation cannot be agreed between the owner of copyright and the user of the material, either party may apply to the Copyright Tribunal for the determination of reasonable compensation payable.

The purpose of the Regulations is to prescribe the contents of applications to the Copyright Tribunal for determination of reasonable compensation payable with respect to the exercise of copyright in works, including photographs, films and sound recordings that are the subject of agreements made before the USFTA Act received Royal Assent.

The Regulations insert new provisions into the Copyright Tribunal (Procedure) Regulations 1969 (the Principal Regulations). Item 119 in Part 5 and item 133 in Part 6 of Schedule 9 to the USFTA Act give rise to the need for new regulations that relate to the procedure by which the Copyright Tribunal will exercise new functions under items 118 and 132. Items 118 and 119 deal with applications to the Tribunal for determination of reasonable compensation payable with respect to the exercise of copyright in photographs that are the subject of agreements made before the USFTA Act received Royal Assent; items 132 and 133 likewise deal with applications to the Tribunal for determination of reasonable compensation in respect of works, films and sound recordings. The Regulations specify that they are made for the purposes of applications under items 118 and 132 of Schedule 9 to the USFTA Act.

Details of the Regulations are provided in the Attachment.

Item 118 of Schedule 9 to the USFTA Act will commence on 1 January 2005. Item 132 of Schedule 9 to the USFTA Act will commence on the later of 1 January 2005 or the date of entry into force of the AUSFTA.

Accordingly Regulations 1 to 3 and Schedule 1, dealing with copyright in photographs, commence on 1 January 2005. Schedule 2 to the Regulations, concerning applications relating to works, films and sound recordings commence on the later of 1 January 2005 or the entry into force of the AUSFTA.

Subsections 4(1) and 4(2A) of the Acts Interpretation Act 1901 read together provide that regulations may be made between the passing and the commencement of legislation upon which they rely for their authority, as long as such regulations are not expressed to commence before that legislation.

ATTACHMENT

Details of the Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1)

Regulation 1 provides that the regulations are the Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1)

Regulation 2 provides that regulations 1, 2 and 3 and Schedule 1 outlined below commence on 1 January 2005, and that Schedule 2 outlined below commences on the date specified in item 2 of the table in subsection 2(1) of the US Free Trade Agreement Implementation Act 2004 (the USFTA Act), which is 1 January 2005 or, if later, the entry into force of the Australia-United States Free Trade Agreement.

Regulation 3 provides that Schedules 1 and 2 to the regulations amend the Copyright Tribunal (Procedure) Regulations 1969.

Schedule 1, item 1 inserts new regulation 33D, after regulation 33C, to prescribe the matters for inclusion in or attachment to an application to the Copyright Tribunal under item 118 of Schedule 9 to the USFTA Act. These matters are listed in new subregulation 33D(2) as:

• identification of the photograph to which the application relates;

• the names of the parties to the application, being the owner of copyright in the photograph and the intending user under an agreement referred to in paragraph (1)(b) of item 118;

• the circumstances or events giving rise to the application;

• the agreement or a copy of the agreement referred to in paragraph (1)(b) of item 118 concerning the intended use of the photograph or, if the applicant does not have access to the agreement, a statement saying so;

• the precise or approximate date of expiration of copyright in the photograph;

• a copy of any notice of objection to the use given by the owner to the intending user;

• the amount of compensation offered by the owner to the intending user for exercising the copyright in the photograph against the latter's intended use of it, and the date of the offer; and

• a request to the Tribunal to determine the amount of reasonable compensation payable to the intending user by the copyright owner for exercising the copyright in the photograph against the intended use of it.

New subregulation 33D(3) requires the Tribunal to specify a date by which the copyright owner would have to pay any reasonable compensation that it determines.

New subregulation 33D(4) defines 'USFTAIA' as used in regulation 33D as the US Free Trade Agreement Implementation Act 2004. It also defines 'owner' as used in regulation 33D as having the same meaning as in the definition in sub item 118(8) of that Act, where it is defined to include an exclusive licensee of the relevant copyright at the relevant time.

Schedule 2, item 1 inserts new regulation 33E, before regulation 34, to prescribe the matters for inclusion in or attachment to an application to the Copyright Tribunal under item 132 of Schedule 9 to the Act. These matters are listed in new subregulation 33E(2) as:

• identification of the work or other subject matter to which the application relates;

• the names of the parties to the application, being the owner of copyright in the work or other subject matter and the intending user under an agreement referred to in paragraph (1)(b) of item 132;

• the circumstances or events giving rise to the application;

• the agreement or a copy of the agreement referred to in paragraph (1)(b) of item 132 concerning the intended use of work or other subject matter or, if the applicant does not have access to the agreement, a statement saying so;

• the precise or approximate date of expiration of copyright in the work or other subject matter;

• a copy of any notice of objection to the use given by the owner to the intending user;

• the amount of compensation offered by the owner to the intending user for exercising the copyright in the work or other subject matter against the latter's intended use of it, and the date of the offer; and

• a request to the Tribunal to determine the amount of reasonable compensation payable to the intending user by the copyright owner for exercising the copyright in the work or other subject matter against the intended use of it.

New subregulation 33E(3) requires the Tribunal to specify a date by which the copyright owner would have to pay any reasonable compensation that it determines.

New subregulation 33E(4) defines 'USFTAIA' as used in regulation 33E as the US Free Trade Agreement Implementation Act 2004. It also defines 'owner' as used in regulation 33E as having the same meaning as in the definition in sub item 132(8) of that Act, where it is defined to include an exclusive licensee of the relevant copyright at the relevant time.

Overview

The Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1) were enacted in 2004 as a response to the amendments introduced by the US Free Trade Agreement Implementation Act 2004, which itself was a legislative measure to fulfill Australia's obligations under the Australia-United States Free Trade Agreement (AUSFTA). The purpose of these regulations is to establish the procedural requirements for applications to the Copyright Tribunal regarding the determination of reasonable compensation payable under the new copyright term extensions stipulated in the AUSFTA. The regulations were made under the authority of the Attorney-General and in accordance with Section 166 of the Copyright Act 1968, which allows for the regulation of proceedings before the Copyright Tribunal. The policy objective of these regulations is to ensure a clear and consistent process for the Tribunal to follow when adjudicating on compensation claims that arise due to the extension of copyright terms as per the AUSFTA.

Scope and Application

The Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1) are subsidiary legislation under the Copyright Act 1968, which governs copyright in Australia. The Regulations amend the Copyright Tribunal (Procedure) Regulations 1969 to establish the procedure for applications to the Copyright Tribunal regarding the determination of reasonable compensation payable for the use of certain copyright material under agreements made before the Royal Assent of the US Free Trade Agreement Implementation Act 2004. The Regulations apply to persons and entities who are parties to agreements for the use of copyright material in works, including photographs, films, and sound recordings, that existed prior to 16 August 2004, when the USFTA Act received Royal Assent. These agreements may be frustrated by the extension of copyright terms under the AUSFTA, and the Regulations provide a mechanism for seeking compensation in such cases. The Regulations are applicable nationally, aligning with the federal jurisdiction of the Copyright Act. They do not contain specific exclusions but are contingent on the existence of pre-existing agreements and the terms of the AUSFTA. The Regulations may be extended or restricted through subordinate instruments in accordance with the provisions of the Copyright Act and the USFTA Act.

Key Provisions

The Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1) (the Regulations) provide the detailed procedure for making applications to the Copyright Tribunal for the determination of reasonable compensation payable under the Copyright Act 1968 (the Act), as amended by the US Free Trade Agreement Implementation Act 2004 (USFTA Act). These Regulations are necessary to give effect to the obligations under the Australia-United States Free Trade Agreement (AUSFTA) and to facilitate the transition in copyright terms as per the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT). The Regulations primarily insert new provisions into the Copyright Tribunal (Procedure) Regulations 1969 (the Principal Regulations) to address applications related to the extended copyright terms for photographs, films, and sound recordings. The Regulations impose specific obligations on parties seeking compensation from the Copyright Tribunal. For example, under regulation 33D, an application for photographs must include the identification of the photograph, names of the parties involved, details of the agreement or intended use, the expiration date of copyright, any notice of objection, the amount of compensation offered, and a request for the Tribunal's determination of reasonable compensation. Similarly, under regulation 33E, applications for other works, films, and sound recordings must include similar details but tailored to the specific type of work or subject matter. Additionally, the Tribunal is required to specify a date by which the copyright owner must pay any determined compensation. Failure to comply with the procedural requirements outlined in the Regulations may result in the application being deemed invalid or incomplete, potentially leading to delays or the rejection of the application by the Tribunal. While the Regulations themselves do not explicitly outline specific offences, penalties, or consequences for non-compliance, any breaches of the Act or the regulations may lead to legal actions for compensation or other remedies available under the Act. The penalties for such breaches would be determined in accordance with the provisions of the Act, which could include fines or other civil penalties. In summary, the Copyright Tribunal (Procedure) Amendment Regulations 2004 (No. 1) establish the procedural framework for applications related to the extended copyright terms under the AUSFTA, ensuring that parties seeking compensation from the Copyright Tribunal comply with the specific requirements set forth in the Regulations. These requirements are designed to facilitate the smooth transition and enforcement of the extended copyright terms as mandated by international agreements and domestic legislation.

Area of Law: Intellectual Property Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Reporting & Disclosure Obligations; Regulatory Standards

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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