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

I will just continue with the amendments that I am moving and I refer to sheet QE275, amendments (13), (14) and (19), dealing with parody and satire. These amendments remove the new exception for parody and satire from the proposed new section 200AB in the Copyright Amendment Bill 2006 and instead create new exceptions for parody and satire in provisions of parts 3 and 4 of the act, which already provide for fair dealings. The amended parody and satire exceptions will apply where a person or organisation can demonstrate that the use for the purpose of parody or satire is a fair dealing. Amendment (13) amends schedule 6 of the bill by inserting new items 9A and 9B. These insert into the act new exceptions for fair dealings with works into a proposed new section 41A and fair dealings with audiovisual items of a proposed new section 103AA for the purposes of parody or satire.

These exceptions are consistent with the present structure of the act, which already contains fair dealing exceptions for criticism and review and reporting of the news. Case law suggests that use of copyright material for parody and satire is likely to overlap or be closely connected to uses for these other fair dealing purposes. It is appropriate to require that a use for the purpose of parody satire should be fair. Parody by its nature is likely to involve holding up a creator or performance to scorn or ridicule. Satire does not involve such direct comment on the original material, but in using material for a general point it should also not be unfair in its effects on the copyright owner. Amendment (14) amends item 10 of schedule 6 of the bill by substituting ‘(4) or (5)’ in paragraph 200AB(1)(b). This change is a consequence of a previous omission of a subparagraph. Item 19 amends item 10 of schedule 6 of the bill by omitting subsection 200AB(5), which is removed by the amendments.

I refer to amendments (15) to (18) and (20), which relate to fair use. These are to be found on sheet QE275. These amendments make a number of technical changes to new section 200AB inserted by item 10 of schedule 6 of the bill. New section 200AB is a significant innovative new exception to ensure copyright law does not unduly block the use of copyright material for socially useful purposes where an exception to copyright does not conflict with Australia’s obligations under international treaties. Amendment (15) amends item 10 of schedule 6 by omitting the words ‘or a person licensed by the owner of the copyright’ from paragraph 200AB(1)(d). The omitting paragraph more closely follows the wording of article 13 of the TRIPS agreement.

Amendment (16) amends item 10 of schedule 6 of the bill by adding ‘or profit’ at the end of paragraph 200AB(2)(c). This amendment requires that a use by a body administering a library or archives must be made partly for the purpose of obtaining a commercial advantage or profit. The present paragraph 200AB(2)(c) in the bill imposes a condition that it not be for the purpose of obtaining a commercial advantage. The intention was that an eligible body should not obtain an exception to copyright if the body administering a library or archives was making use of copyright material partly for the purpose of gaining an advantage, benefit or gain from being engaged in commerce. The addition of the words ‘or profit’ is to make clear that this condition includes that the use by a body administering a library or archives is not to be partly for the purpose of making a profit. Amendments (17) and (18) ensure the term ‘or profit’ is also used with paragraphs 200AB(3)(c) and (4)(c).

Amendment (20) amends item 10 of schedule 6 of the bill by inserting a new subsection. It provides that a use does not fail to meet the conditions in paragraph 200AB(2)(c), (3)(c) or (4)(c) merely because of the charging of a fee that is connected with the use and that fee does not exceed the costs of the use to the charger of the fee—much like a cost recovery mechanism. It is common for bodies such as libraries and archives or educational institutions to impose a fee to recover costs associated with the uses of the kind referred to in section 200AB(2), (3) and (4). The amendment makes clear that the mere fact of adopting a user-pays system of recovering costs connected with the use does not constitute a purpose partly for obtaining a commercial advantage or profit. I think we will leave amendment (21) on sheet QE275 for the moment. We will come back to that one.

Amendments (22) to (35), on sheet QE275, respond to the Senate committee’s recommendations 7 and 8 concerning the operation of schedule 6, part 5. This concerns the official copying of library and archive material. The scope of the exception for key cultural institutions in schedule 6 will be broadened to confer on the minister a power to prescribe by regulation particular institutions as being key cultural institutions for the purposes of the provisions. The government considers this to be a more appropriate approach than listing some new bodies, such as the ABC or SBS, but not others that may have important cultural collections. This provides a degree of flexibility to keep up with events of the day. These amendments will provide scope to consider the merits of claims of institutions other than those who have a statutory function of developing and maintaining a collection but who nonetheless develop and maintain collections that are of historical and cultural significance to Australia.

These amendments will provide that up to three copies of any material—for example, works, sound recordings and films—can be made. However, this can only be done for the purposes of preservation. These provisions complement the other library and archive copying provisions already in the act. The commercial availability test has been retained, as it is appropriate in these circumstances. Free copying of materials should only occur where a copy can no longer be purchased. The commercial availability test does not apply to manuscripts, first records or unpublished records embodying sound recording or first copies, or unpublished copies of films.

The policy for these amendments is to ensure that key cultural institutions are able to fulfil their mandate to preserve items of historical or cultural significance to Australia in their collections. The provisions are consistent with international best-practice guidelines produced by UNESCO for preservation.

I now move to amendment (19), on sheet ZA204, which deals with communication for educational instruction. This amendment is in response to recommendation 9 of the Senate committee. It omits from the bill proposed new section 28A inserted by item 1 of schedule 8 of the bill and substitutes, at the end of existing section 28, new subsections (5), (6) and (7). The amendment is narrower in scope than proposed section 28A in the bill and has been inserted to avoid the unintended consequence that communications made to enable performances in the classroom could also be used for other purposes.

Existing section 28 provides an exception to copyright whereby literary, dramatic and musical works, films and sound recordings may be performed in the classroom without infringing copyright and with no remuneration payable. The section was initially drafted to provide for copyright materials to be performed electronically in the classroom by playing a sound or video recording on a TV video recorder or tape player. Technological developments have led to copyright materials now being communicated from a central source player—for example, located in the library—to remote classrooms.

The new section 28(5) has been drafted to better reflect the government’s policy intention that communications made merely to facilitate performances in classrooms, where those performances are exempt from any remuneration or the need for a licence, should not infringe copyright. The new section 28(5) does not apply to artistic works or broadcasts; these are dealt with separately in sections 28(6) and 28(7) respectively. The effect of these two new subsections is to extend the operation of section 28 to the communication of artistic works, live broadcasts or recordings of broadcasts by educational institutions so that they can be screened or played in the classroom without infringing copyright. The provisions bring the communication of artistic works in line with the treatment of other works under section 28(5) and implement the government’s intention that schools should not be paying broadcasters when they distribute or communicate either live broadcast programs or recordings of broadcast programs for use in the classroom. These amendments do not undermine the operation of part VA. They have been endorsed by both Screenrights and the educational sector as an appropriate compromise.

I now refer to amendment (37), on sheet QE275, which deals with caching by educational institutions. This responds to recommendation 10 of the Senate committee. The amendment replaces proposed new section 200AAA inserted by item 10 of schedule 8 of the bill with a new section 200AAA. The amendment clarifies that caching of online material by educational institutions for efficiency purposes does not infringe copyright. The provision has been redrafted to better reflect the government’s intention that schools should not be liable to pay remuneration when materials are automatically saved in their computers’ own systems cache, particularly when this is done only for the efficient operating of the computer system.

New subsection (2) of the new section 200AAA provides that, where certain conditions are met, copyright of a work or other subject matter is not infringed by reproducing the work or communicating the work to a user of the system. This new section is not intended to allow an educational institution to retain permanent copies of online material, nor to deliberately create an archive of online material under the guise of caching. It is not intended, for example, that the provision would allow the downloading of a computer program onto a server for purposes other than the efficiency of the educational institution’s internet access. The policy intention of the provision is to allow educational institutions to provide efficient internet access.

New subsection (4) of the new section 200AAA requires the new section to be disregarded in circumstances of caching by persons other than educational institutions. This subsection has been included to avoid the risk that the creation of an exception for educational bodies as outlined in the new section creates by inference or statutory interpretation a situation whereby it becomes a copyright-infringing act for other non-educational bodies to proxy cache.

I now refer to amendment (38) on sheet QE275, dealing with encoded broadcasts. This replaces the definition of ‘broadcaster’ with a new definition. The amendment corrects an unintended consequence of the original definition which may, in effect, have excluded parties who were intended to fall with in its scope. The definition of ‘broadcaster’ is central to part 5AA because it is the broadcaster who can authorise or refuse to authorise acts under the provisions. In practice, the person who holds a broadcasting licence under the Broadcasting Services Act 1992 and, in the case of subscription services, who contracts with subscribers to provide a broadcasting service is the appropriate person to provide that authorisation.

In relation to subscription broadcasts, the amended definition reflects industry arrangements where the technical role of making encoded broadcasts is not necessarily undertaken by the licence holders. A person, for example, may be the subscription television broadcast or narrowcast licensee for a certain area or group, but, due to commercial arrangements which provide for the sharing of technical broadcast infrastructure with other broadcasters, that person may not necessarily be the person who makes the encoded broadcast.

I refer to amendment (39) on sheet QE275 dealing with voluntary licences. This substitutes a new definition of ‘licensor’ in the act relating to the jurisdiction of the Copyright Tribunal in place of the proposed definition inserted by the bill. The definition has been revised to restrict ‘licensor’ more clearly to collecting societies, as intended by the government, because the definition in the bill arguably could include substantial copyright owners who are not collecting societies. (Extension of time granted)

I now refer to amendment (40) on sheet QE275, dealing with the ACCC guidelines. This amendment makes a minor change to specify more precisely the circumstances in which the Copyright Tribunal is to have regard to relevant guidelines to be issued by the Australian Competition and Consumer Commission.

Amendments (41) to (44) on sheet QE275 deal with the review of a collecting society’s distribution arrangement. These amendments affirm that an order made by the Copyright Tribunal varying or replacing the distribution arrangement of a declared collecting society does not affect a distribution begun by the society before the tribunal’s order is made.

Amendment (45) on sheet QE275 deals with records notices. This amendment amends schedule 11 of the bill to retain the existing record-keeping requirements applying to educational and other institutions which have chosen to pay for copying under licence on the basis of full recording of copying. This change is being made to the bill, which would have displaced those requirements, at the strong urging of educational representatives. Matters, however, relating to record keeping that are not prescribed by those existing arrangements will be subject to the jurisdiction of the Copyright Tribunal if the parties cannot agree on them. To this extent, the effect of the relevant provisions of the bill will be continued by the amendment.

Finally, I deal with amendments (46) to (63) on sheet QE275. These deal with technical corrections and interoperability. They amend the exceptions for interoperability in schedule 12 of the bill, ‘Technological protection measures’, to make a technical correction. The interoperability exceptions apply to each provision that provides civil or criminal liability for the act of circumvention or for dealings in circumvention devices or services. The effect of these amendments is to clarify that the exception for interoperability applies only where the elements of the computer program that is the subject of circumvention are not or will not be readily available to the persons exercising the exception at the time of circumvention. For example, if the owner of copyright in a computer program has made or will make elements of that computer program that are necessary to create an interoperable program readily available in an unprotected format, the exception will not apply.

That deals with the government amendments which I have moved, by leave, together. I have left out, of course, government amendment (21), which Senator Ludwig has indicated he wishes to deal with separately. I will leave that for separate comment.