EXPLANATORY STATEMENT
1983 NO 125
COPYRIGHT TRIBUNAL (PROCEDURE) REGULATIONS (AMENDMENT)
Authority
Section 249 of the Copyright Act (‘the Act’) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Background
The Copyright Tribunal (Procedure) Regulations (‘the Regulations’) were made in 1969 and last amended in 1974.
Since then the Act has been amended by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 and the Copyright Amendment Act 1980.
The former Act amended provisions in section 161 which now provides for reference by the Copyright Tribunal (‘the Tribunal’) of questions of law to the Federal Court (previously the High Court) and for the determination by the Tribunal (instead of the High Court) of terms for the doing of acts comprised in the copyrights of others by the Commonwealth or a State under s. 183. The latter Act inserted provisions (sections 53B and 53D) which permit educational institutions and institutions assisting handicapped readers to copy printed material. That Act also makes provision for the issue of orders suspending the application of sub-sections 53B(1) and (2) and for the revocation of such orders.
Equitable Remuneration of Copyright Owners under Sub-sections 53B(11) and 53D(10)
Sub-sections 53B(11) and 53D(10) of the Act make provision for the determination of an amount by way of equitable remuneration that an educational institution or an institution assisting handicapped readers is to pay to a copyright owner for the copying of his printed materials under section 53B or 53D. The amount payable is to be determined by agreement between the parties or, in default of agreement, by the Tribunal.
New regulation 3 inserts regulations 19A and 19B. These make provision as to matters to be included in applications to the Tribunal where a determination of an amount of equitable remuneration is sought under section 53B or 53D.
Application for or Revocation of Suspension Orders under sections 159A and 159B
Section 159A of the Act makes provision for the Attorney-General to apply to the Tribunal for an order suspending the application of sub-sections 53B(1) and (2) in relation to a body administering an educational institution where that body has been convicted of two or more offences for failure to retain records under section 203A. Where a suspension order has been made by the Tribunal section 159B makes provision for a body administering an educational institution to make an application to the Tribunal to have that order revoked in so far as it relates to sub-section 53B(1).
New regulation 2 amends regulation 18 which deals with advertising of applications to the Tribunal by remaking sub-regulation 18(4) to provide that the regulation does not apply to applications under a number of sections, including sections 159A and 159B.
New regulation 4 inserts regulations 33A and 33B. These make provision as to the matters to be included in applications to the Tribunal for suspension orders under section 159A or for revocation of suspension orders under section 159B.
Terms for Doing of Acts under Sub-section 183(5)
Section 183 of the Act permits the Commonwealth or a State to do acts comprised in the copyrights of others without infringing copyright but provision is made for notification and the determination of terms. Under sub-section 183(5) terms are as agreed between the parties or, in default of agreement, as fixed by the Tribunal.
New regulation 4 inserts regulation 33C. It makes provision as to matters to be included in an application to fix terms for the doing of an act comprised in copyright by the Commonwealth or a State.
Reference of Questions of Law to the Federal Court under Section 161
Sub-section 161(1) of the Act provides that the Tribunal may of its own motion or at the request of a party refer a question of law arising in proceedings before it to the Federal Court. Under sub-section 161(2) this is to be done within a prescribed time where the request was made after the date on which the Tribunal gave its decision. In the event that the Tribunal refuses to refer a question the party making the request may within a prescribed time seek an order from the Federal Court directing the Tribunal to refer it in accordance with sub-section 161(3).
New regulations 1, 5, 7 and 8 take account of amendments in the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 by substituting references to the Federal Court for references to the High Court in regulations 15, 40, 41 and 42.
New regulation 6 inserts regulation 40A setting out procedures to be followed for the fixing of a new date for the hearing or further hearing of a proceeding by the Tribunal where a party makes a request under sub-section 161(1), New regulation 6 also inserts regulations 40B and 40C setting out the prescribed period for the purposes of sub-sections 161(2) and (3). These provisions fix the time within which a party may request the Tribunal to refer a question of law to the Federal Court and the time for application to the Federal Court to direct referral of such a question. A request to the Tribunal for referral of a question must be made within 28 days after the date of the Tribunal decision. An application for a direction that a question be referred is to be made within 28 days after the refusal of the Tribunal to refer the question.
Second and Third Schedules - Fees and Expenses
The Second Schedule fixes fees for the provision of copies of documents while the Third Schedule provides for witnesses’ fees and expenses.
New regulations 9 and 10 make amendments to these fees and expenses to bring them into line with those provided in the Federal Court of Australia Regulations and the High Court Rules.