Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

At the outset I thank senators from all sides of the chamber who have participated in the debate—Senators Ludwig, Bartlett, Crossin and Lundy. As well, I also thank the Senate Standing Committee on Legal and Constitutional Affairs for its valuable report on the bill and the recommendations which were made on a number of key issues.

As Senator Bartlett recognised, the bill is the result of substantial consultation over a number of years. It delivers on outcomes from a number of recent important copyright reviews. I think that flies in the face of one aspect of the second reading amendment which claims that there has not been sufficient consultation. Certainly, I agree with Senator Bartlett that there has been extensive consultation in this process. The reforms that we are dealing with here seek to maintain the balance of copyright law by providing new and innovative exceptions for the use of copyright material while providing greater security for copyright owners to distribute their copyright material in this digital age.

The government has closely examined the Senate committee’s report on the bill. The government has accepted eight of the 12 specific amendments to the bill recommended by the committee. It is responding to the key issues raised during the Senate committee process by proposing a number of government amendments to ensure that the bill achieves the government’s stated policy objectives and to clarify drafting in some areas. The government will also move amendments in response to some of the recommendations by the Labor senators of the Senate committee. I think that, in view of the second reading amendment, it should be borne in mind that not only have we had this extensive consultation period but also, what is more, the government has closely examined the Senate committee’s report and taken on board many of the suggestions. It has been considered very carefully.

Copyright reform is an important issue for this government and this bill demonstrates the Howard government’s commitment to ensuring that our copyright laws are effective and that they respond to continuing changes in the technical landscape. The government’s commitment to copyright law reform has been clear and consistent to make the law fairer for consumers and tougher on the real pirates.

Senator Ludwig talked about divergent views. He said there were lots of them in the Senate committee submissions. Of course, he is quite right. That is, after all, what you get when you are dealing with issues relating to copyright. There have been five discussion papers, various exposure drafts, consultations and meetings with stakeholders. Stakeholders have, understandably, formed their views based on what is in their best interests. More consultations will not change these views. There is no compromise that will make all stakeholders happy. This is an element of copyright policy process and that is the very point I just made in reference to Senator Ludwig’s observation as to the number of submissions. But the thing is this: at least this government is willing to make the hard decisions and not leave them in the too-hard basket as others would.

Senator Ludwig has questioned why the bill does not include a broad fair use exception. We had a review and there was limited support for a broad fair use right. People like Australia’s fair dealing regime. They like certainty of exceptions. They do not want a fine-line exception that tells them they can only do what a court tells them they can do. As Senator Ludwig reminds us, for consumers there should be clarity.

The bill introduces several new exceptions to copyright in response to the government’s fair use review. First, the reforms recognise that common consumer practices of time shifting of broadcasts and format shifting of some copyright material should be permissible. This bill will ensure that people can legally tape television or radio programs in order to play them at a more convenient time. It will also be legal to reproduce music, newspapers and books in different formats for private use. Importantly, people can transfer music from CDs they own onto their iPods and other music players. As a result of these changes, consumers will no longer be breaching the law when they record their favourite TV program or copy CDs they own onto another device.

The government is also ensuring that Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted by providing an exception for fair dealing for the purpose of satire and parody. In response to the views of the Senate committee, the government is moving amendments to the bill to ensure that time-shifting and format-shifting provisions achieve the government’s policy intent and recognise the reasonable use of technology.

A new flexible exception will also allow copyright material to be used for certain socially useful purposes where this does not significantly harm the interests of copyright owners. Cultural and educational institutions and certain individuals will be able to make use of copyright where those uses do not undermine the copyright owner’s normal market. Importantly, people with a disability that affects their capacity to access copyright material will now be able to make use of that material in order to better access it. This amendment has been welcomed by people with disabilities.

The bill provides for more effective technological protection measures. This, of course, provides for TPM protection to encourage distribution of copyright material online and increase the availability of music, film and games in digital form. This in turn will foster development of new business models and provide enhanced choice for consumers. The liability scheme established by the bill will target people who circumvent these technological protection measures in addition to those who manufacture or supply devices or services used for circumvention. The liability scheme also provides for specific exceptions in the bill and copyright regulations in accordance with the recommendations of the House of Representative Standing Committee on Legal and Constitutional Affairs.

In addition, the bill will create an exception for region coding devices and will allow Australian consumers to use multizone DVD players. This part of the bill is the product of an extensive consultation process. The government believes that it is a robust and fair scheme in line with our obligations under the Australia-United States Free Trade Agreement. The government will not be adopting the recommendations of the Senate committee in relation to TPMs for these reasons. The government, however, proposes to move minor technical amendments to the TPM provisions of the bill.

In the digital environment, the reality is that it has become increasingly easy to infringe copyright. The bill therefore introduces reforms aimed at tackling copyright piracy online and at our markets and borders. The bill will create indictable, summary and strict liability offences, with a range of penalty options. The strict liability offences will be underpinned by an infringement notice scheme in the copyright regulations and guidelines, to be developed in consultation with users and owners. This will give law enforcement officers a wider range of options depending on the seriousness of the relevant conduct, ranging from infringement notices for more minor offences to initiating criminal proceedings to strip copyright pirates of their profits in more serious cases. They are not aimed at ordinary people but at copyright pirates who profit at the expense of creators. In response to submissions and to the recommendations of the Senate committee, the government will move amendments to the bill to address any perceptions of possible overreach of the offences. The summary and indictable offences will remain intact for those activities to ensure that the law remains appropriately tough on pirates.

Other key enforcement measures include new offences to tackle unauthorised access and use of pay TV services. The government will move amendments regarding the definition of ‘broadcaster’ in the schedule of the bill to ensure that this scheme fully achieves its objectives. The bill enhances the jurisdiction and procedures of the Copyright Tribunal. Many amendments implement the government’s response to the Copyright Law Review Committee’s report Jurisdiction and procedures of the Copyright Tribunal.

The government has responded to the recommendations of the Senate committee and to the need to ensure that cultural institutions are able to fulfil their cultural mandate in preserving their collections. In response to several other Senate committee recommendations, the government will also be moving amendments to ensure that the needs of our educational institutions are appropriately catered for by moving amendments to ensure that new provisions in the bill relating to educational communications and to the location of educational material for efficiency purposes more clearly meet the government’s policy objectives.

In relation to educational institutions, the government also looked carefully at the Senate committee’s recommendation 11, which proposed that ‘insubstantial’ copying of works in electronic form need not be ‘continuous’. On balance, the government has decided to retain the bill in its current form, which preserves the technology neutrality of the act in this area between hard copies and electronic copies.

Senator Bartlett asked why the removal of the one per cent cap on licence fees involving the broadcast of sound recordings is not contained in the bill. The government agrees that this is an important issue and it has consulted and come to a decision on it, as Senator Bartlett indicated. A number of submissions from affected stakeholders in recent months have meant that further work is required. This could not be completed in time for the introduction of this bill. The government has therefore not made a decision about the timing of this reform.

I also advise the Senate that the government has noted some of the media and other commentary on the bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms. I think some commentators are throwing the baby out with the bathwater, and this undermines public confidence in copyright.

I take this opportunity to address some concerns raised by the Internet Industry Association that internet service providers may be criminally liable for the actions of third parties who use the ISP network to communicate infringing copies. The government has reviewed the relevant distribution offences and is satisfied that the amendments do not alter the current position for ISPs under the Copyright Act and that no further clarifying amendments are necessary. None of the relevant distribution offences in the Copyright Act capture authorisation of criminal infringement. To commit an offence, a person or entity must directly commit all the elements of the offence themselves. Further, under the Copyright Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication. In the vast majority of cases, a person other than the ISP would have generated the online content.

The government amendments that will be moved to the bill demonstrate that the government has listened to and addressed the concerns raised during the course of the Senate inquiry and in the Senate committee’s recommendations. It is inevitable, in making any amendments to the Copyright Act, which is a complex law, that there will be areas of disagreement between stakeholders. This was particularly evident from the divergent views expressed to the Senate committee. Clearly, not all amendments will be well received by copyright owners, and not all amendments will be well received by copyright users. Copyright law is an exercise in the balancing of rights in the public interest. The government believes, however, that the final bill, together with its amendments, which are the result of significant consultation and scrutiny by a parliamentary committee, has got the balance right. We believe in getting on with business and making the necessary changes.

Before I conclude, I turn to a couple of matters raised by Senator Ludwig. Senator Ludwig raised the issue—and I think Senator Crossin did too—of whether the government would conduct a public review of all the changes made by the bill after two years, as recommended by the Senate committee. In response, I would note that the government has already indicated that it will review the scope of the format shifting exception in two years to possibly include film in digital form. Given the range of reforms across a number of aspects of the act, a review in two years may be both premature and unnecessary. It is not clear why a review of the amendments relating to the jurisdiction of the Copyright Tribunal or encoded broadcasts would be necessary. Clearly, however, if the need to review a particular reform arises, the government will act at the relevant time to address the issue, as we have always done in this area.

Another area that Senator Ludwig raised relates to the number of preservation copies that libraries and archives may make and why this is not four, rather than three. In response, I note that the government amendments to the bill ensure that copying for preservation purposes will be improved by making it three copies rather than the single copy as contained in the provisions of the bill. Some institutions may complain that making three copies for preservation purposes is insufficient. Additional copies, however, may also be made in some circumstances under section 51 of the act and under new section 200AB inserted by the bill.

An officer of a key cultural institution is not required by new sections 51B, 110BA and 112AA to wait for the material to deteriorate or to have been lost or stolen before making a preservation copy or copies. An authorised officer of the institution may make an assessment of the need for a preservation copy at any time. These reforms will clearly enable institutions to meet the UNESCO guidelines for best practice preservation. That is an important issue.

There are a range of other amendments the government will be moving in the committee stage. They will be extensive, and I understand that others have amendments as well. In conclusion, this bill introduces significant reforms to the Copyright Act 1968 demonstrating this government’s ongoing commitment to an effective world-class and up-to-date copyright regime. The government amendments to the bill will ensure that the legislation addresses the key concerns raised in the Senate committee process. Once again, I thank that committee for its work and I commend the bill to the Senate.