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

I move the following amendments on sheet ZA204:

(1)    Schedule 1, item 6, page 18 (line 17), omit “offences”, substitute “offence”.

(2)    Schedule 1, item 6, page 18 (line 28) to page 19 (line 3), omit subsection 132AI(8).

(3)    Schedule 1, item 6, page 19 (line 4), omit “Subsections (7) and (8) are offences”, substitute “Subsection (7) is an offence”.

(4)    Schedule 1, item 6, page 27 (line 1), omit subparagraph 132AO(5)(a)(i).

(5)    Schedule 1, item 8, page 36 (lines 20 to 23), omit subsection 133B(1), substitute:

        (1)    The regulations may make provision enabling a person who is alleged to have committed an offence of strict liability against this Division to do both of the following as an alternative to prosecution:

             (a)    pay a penalty to the Commonwealth;

             (b)    forfeit to the Commonwealth:

                   (i)    each article (if any) that is alleged to be an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence; and

                  (ii)    each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence.

                   (i)    each article (if any) that is alleged to be an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence; and

                  (ii)    each device (if any) that is alleged to have been made to be used for making an infringing copy of a work or other subject-matter and that is alleged to have been involved in the commission of the offence.

Note:   Regulations made for this purpose will make provision to the effect that a prosecution of an alleged offender will be avoided if the alleged offender both pays a penalty to the Commonwealth and forfeits to the Commonwealth all relevant articles and devices (if any).

Note:   Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.

(1)    The Minister must cause to be carried out by the end of 31 March 2008 a review of the operation of sections 47J and 110AA of the Copyright Act 1968.

Note:   Those sections are inserted in that Act by this Part.

(2)    The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.

                   (i)    is given by a teacher; and

                  (ii)    is not given for profit; and

                   (i)    is given by a teacher; and

                  (ii)    is not given for profit; and

Note:     The heading to section 28 is altered by inserting “and communication” after “Performance”.

I also move the following amendments on sheet QE275:

record means a disc, tape, paper or other device in which sounds are embodied.

private and domestic use means private and domestic use on or off domestic premises.

109A Copying sound recordings for private and domestic use

                   (i)    is a device that can be used to cause sound recordings to be heard; and

                  (ii)    he or she owns; and

Note:   If the earlier or later copy is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the later copy but also by a dealing with the later copy.

41A Fair dealing for purpose of parody or satire

103AA Fair dealing for purpose of parody or satire

Cost recovery not commercial advantage or profit

Works, adaptations and reasonable portions
Item	Work or adaptation	Amount that is reasonable portion
1	A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages	(a) 10% of the number of pages in the edition; or (b) if the work or adaptation is divided into chapters—a single chapter
2	A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work	(a) 10% of the number of words in the work or adaptation; or (b) if the work or adaptation is divided into chapters—a single chapter

51B Making preservation copies of significant works in key cultural institutions’ collections

                   (i)    has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                  (ii)    is prescribed by the regulations for the purposes of this subparagraph; and

110BA Making preservation copies of significant recordings and films in key cultural institutions’ collections

                   (i)    has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                  (ii)    is prescribed by the regulations for the purposes of this subparagraph; and

112AA Making preservation copies of significant published editions in key cultural institutions’ collections

                   (i)    has, under a law of the Commonwealth or a State or Territory, the function of developing and maintaining the collection; or

                  (ii)    is prescribed by the regulations for the purposes of this subparagraph; and

200AAA Proxy web caching by educational institutions

                   (i)    temporary electronic reproductions of works made available online through the system to users of the system in response to action by the users; and

                  (ii)    temporary electronic copies of other subject-matter made available online through the system to users of the system in response to action by the users; and

system includes network.

broadcaster means a person licensed under the Broadcasting Services Act 1992 to provide a broadcasting service (as defined in that Act) by which an encoded broadcast is delivered.

licensor means a body corporate for which both the following conditions are met:

                   (i)    entitles any owner of copyright, or any owner of copyright of a specified kind, to become a member of the body; and

                  (ii)    requires the body to protect the interests of its members connected with copyright; and

                 (iii)    provides that the main business of the body is granting licences; and

                 (iv)    requires the body to distribute to its members the proceeds (after deduction of the body’s administrative expenses) from payments to the body for licences; and

                  (v)    prevents the body from paying dividends.

157A Tribunal must have regard to ACCC guidelines on request

Part 4—Records notices

Copyright Act 1968

Note 1:             The following heading to subsection 135K(1) is inserted “If records notice is given”.

Note 2:             The following heading to subsection 135K(3) is inserted “If sampling notice is given”.

(1)    The amendment of section 135K of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.

(2)    The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the collecting society make an agreement determining a matter described in subsection 135K(2A) of the Copyright Act 1968. In that case, the amendment applies at and after the time the agreement comes into force.

Note:   While the amendment does not apply, section 135K of the Copyright Act 1968, as in force before the commencement of the amendment, applies.

(3)    In this item:

Note 1:             The following heading to subsection 135ZX(1) is inserted “If records notice is given”.

Note 2:             The following heading to subsection 135ZX(3) is inserted “If sampling notice is given”.

Note 3:             The following heading to subsection 135ZX(4) is inserted “Regulations relevant to records notices and sampling notices”.

(1)    The amendment of section 135ZX of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.

(2)    The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the relevant collecting society make an agreement determining a matter described in subsection 135ZX(2A) of the Copyright Act 1968. In that case, the amendment applies at and after the time the agreement comes into force.

Note:   While the amendment does not apply, section 135ZX of the Copyright Act 1968, as in force before the commencement of the amendment, applies.

(3)    In this item:

153BAA Application to the Tribunal under subsection 135K(2A)

administering body has the same meaning as in Part VA.

collecting society has the same meaning as in Part VA.

153DB Application to the Tribunal under subsection 135ZX(2A)

administering body has the same meaning as in Part VB.

relevant collecting society has the same meaning as in Part VB.

                (iia)    relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and

                (iia)    relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                (iia)    relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                (iia)    relates to elements of the original program that will not be readily available to the person when the circumvention occurs; and

                (iia)    relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

                (iia)    relates to elements of the original program that will not be readily available to the person doing the act when the circumvention occurs; and

Firstly, I will deal with amendments (1) to (7) on sheet QE275. These amendments remove five of the strict liability offences from the bill. Namely, possessing a device to be used for copying a work or other subject matter where the copy will be an infringing copy—subsection 132AL(9); causing a literary, dramatic or musical work to be performed in public at a place of public entertainment where the performance infringes copyright and the work—subsection 132AN(5); making a direct recording of a performance during the protection period of the performance and without the authority of the performer—subsection 248PA(5); possessing a plate or recording equipment to be used for making an unauthorised recording of a performance or a copy of an unauthorised recording where the possession occurs during the protection period of the performance—subsection 248PE(6); and possessing a plate or recording equipment to be used for making an unauthorised recording of a performance—subsection 248QB(6).

These amendments are in response to a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs that the strict liability offences in the bill be re-examined for amendment to reduce the possible widespread impact of their application on the legitimate activities of ordinary Australians and businesses. The government has decided to remove these five strict liability offences because they could arguably capture some legitimate activities of individuals and businesses and thereby extend criminal liability more widely than intended. The removal of these offences was a more feasible and sensible course of action than introducing a defence. The removal of these strict liability offences does not affect the equivalent fault based indictable or summary offences. Law enforcement officers and prosecutors will be able to rely on these offences which have higher penalties, and this will deter genuine copyright pirates.

The strict liability offences that are retained in the bill will not operate adversely against ordinary Australians and legitimate businesses. They will be a vital part of a strong and effective copyright enforcement regime and will act as a deterrent to copyright piracy.

I also refer to amendments (1) and (3) on sheet ZA204. These are consequential amendments to the bill that are required because of the amendments that I have just referred to that remove five of the strict liability offences. That is the first group of that package of amendments.

Amendments (2), (4), (6), (8), (10), (12), (14) and (16) on sheet ZA204 remove an additional eight strict liability offences from the bill. They are as follows. Amendment (2): distributing an infringing copy of a work or other subject matter where the extent of the distribution affects prejudicially the owner of the copyright—subsection 132AI(8); amendment (4): causing a sound recording to be heard in public at a place of public entertainment where it infringes copyright in the recording or film—subsection 132AO(5)(a)(i); amendment (6): communicating a performance to the public during the 20-year protection period of the performance without the authority of the performer—subsection 248PC(5); amendment (8): causing a recording of a performance to be heard or seen in public during the 20-year protection period of the performance—subsection 248PD(5); amendment (10): distributing an unauthorised recording of a performance during the protection period of the performance where it will affect prejudicially the financial interests of the performer in the performance—subsection 248PJ(8); amendment (12): possession of an unauthorised recording of a performance in preparation for or in the course of distributing the recording to an extent that will affect prejudicially the financial interests of the performer in the performance—subsection 248PK(5)(a)(iv); amendment (14): distributing an unauthorised sound recording of a performance during the 50-year protection period where it will affect prejudicially the financial interests of the performer in the performance—subsection 248QE(8); and amendment (16): possessing an unauthorised sound recording of a performance during the 50-year protection period in preparation for or in the course of distributing the recording to an extent that it will affect prejudicially the financial interests of the performer in the performance—subsection 248QF(5)(a)(iv).

These amendments are in response to a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs and further stakeholder representations that strict liability offences in the bill should be amended to reduce the possible widespread impact of their application on the reasonable activities of ordinary Australians and businesses. The government has decided to add these to the list of strict liability offences to be removed to allay concerns that they would extend criminal liability more widely than intended. The removal of these strict liability offences does not affect the equivalent fault based indictable or summary offences. Law enforcement officers and prosecutors will be able to rely on these offences, which have higher penalties and which would, of course, deter copyright pirates. The strict liability offences that are retained in the bill will not operate adversely against ordinary Australians and legitimate businesses. As I said earlier, they will be a vital part of a strong and effective copyright enforcement regime and will, of course, act as a deterrent to copyright piracy.

I now refer to amendments (1), (3), (7), (9), (11), (13) and (15) on sheet ZA204. These are consequential to the amendments that I have just outlined and are much in the fashion that I described the earlier batch of amendments. They are required as a consequence of the amendments that I have previously spoken to.

I now refer to amendment (5) on sheet ZA204, which deals with infringement notices. This amends new subsection 133B, inserted by the bill, to provide that a recipient of an infringement notice will be required to do two things as an alternative to prosecution for an alleged strict liability offence. First, they will be required to pay the infringement notice penalty. One infringement notice penalty equals 12 penalty points, which is $1,320. Second, they will be required to forfeit infringing copies made or other devices that have been made to be used for making infringing copies as part of the alleged commission of the offence. This amendment will encourage an infringement notice recipient to cooperate with police by divesting themselves of material that they could use for further criminal activity.

I now refer to amendment (8) on sheet QE275. This amendment amends the bill to insert a new subparagraph 54(1A) to provide a localised definition of ‘record’ for division 6, part III, of the Copyright Act. The amendment retains the existing definition of ‘record’ in the act for that part. This amendment is necessary because the new definition of ‘record’ inserted by schedule 3 of the bill includes references to ‘electronic file’. Using this definition in division 6, part III, would have the unintended effect of extending the operation of the statutory licence for recording all musical works—for example, digital downloads and ringtone sales. The amendment ensures that the bill makes no change to the existing operation of division 6, part III.

I now refer to amendment (9) on sheet QE275. This relates to private and domestic use. This amends the bill to add a new definition of ‘private and domestic use’ in subsection 10(1) of the act. This amendment is in response to Senate committee recommendation 4. The bill adds new copyright exceptions that permit the recording or copying of copyright material for private and domestic use in some circumstances. This amendment makes it clear that private and domestic use can occur outside a person’s home as well as inside. The amendment ensures that it is clear that, for example, a person who under new section 109A copies music to an iPod can listen to that music in a public place or on public transport.

I refer to amendment (11) on sheet QE275. This amends item 1 of schedule 6 in the bill. It inserts paragraphs (e) and (f) in new subsection 11(3). This subsection contains a number of restrictions preventing sales and other dealings with an article or thing embodying a film or sound recording of a broadcast. Paragraph (e) also prohibits causing a recording made of a broadcast to be performed in public, while paragraph (f) prohibits the broadcasting of a recording made under subsection 111. This amendment prevents potential misuse of subsection 111 in conjunction with compulsory licences that allow the public performance and broadcasting of sound recordings.

I refer to amendment (17) on sheet ZA204. This relates to time shifting. This amends item 1 of schedule 6 in the bill. This amendment substitutes a new section 111(1), which removes the requirement that a recording of a broadcast under section 111 must be made in domestic premises. This amendment provides greater flexibility in the conditions that apply to time-shift recording. The development of digital technologies is likely to result in increasing use of personal consumer devices and other means which enable individuals to record television and radio broadcasts on or off domestic premises. The revised wording of section 111 by this amendment enables an individual to record broadcasts as well as view and listen to the recording outside their homes as well as inside for private and domestic use.

I refer to amendment (18) on sheet ZA204. This inserts a new item 9AA at the end of part 2 of schedule 6 of the bill. The effect of this amendment is to require the review of the operation of new section 47J and section 110AA be carried out by the end of March 2008. It also requires the report of the review to be subsequently tabled in each house of parliament within 15 sitting days after the report is completed. So that provides some rigour, if you like, to the report being concluded and tabled. This review will enable consideration to be given to whether these new copyright exceptions should be expanded with respect to digital audiovisual material in a way which complies with our international treaty obligations. This review will consider how to achieve an appropriate balance between the legitimate interests of rights holders and users of copyright material.

I refer now to amendment (12) on sheet QE275. This deals with format shifting. This amends item 8 of schedule 6 of the bill by omitting the proposed section 109A and substituting a new section 109A. The amendments will better recognise and render legitimate the ordinary use by consumers of digital musical players such as iPods and MP3 players. In particular, new section 109A responds to concerns that, as originally introduced, this provision was too restrictive. This amendment responds to recommendation 5 of the Senate committee. New section 109A permits the owner of a copy of a sound recording to make another copy for private and domestic use. The new exception will allow the owner of a sound recording to make copies for the purpose of using a playing device that he or she owns.

The new section 109 lists the conditions necessary for the new provision to operate. It requires that the sole purpose of making a copy must be the owner’s private and domestic use with a device that can cause sound recordings to be heard and is owned by the owner of the earlier copy. The term ‘device’ envisages that a copy might be stored in the memory of a personal computer or portable playing device or that a copy might be embodied in a physical article such as a compact disc or storage medium. Copying may also occur sequentially. The revised drafting approach will allow for digital playing devices such as the Apple iPod to function where more than one copy of a sound recording is maintained in the device and a personal computer. This of course responds to rapidly changing technology. These amendments demonstrate that the government has listened carefully to comments by the stakeholders on the exposure draft to ensure the bill achieves the government’s objectives. There are other amendments on which I will comment further shortly. (Time expired)