Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

asked the Minister representing the Attorney-General, upon notice, on 10 October 2012:

In regard to amendments to the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 that improve mechanisms for trade mark and copyright enforcement (Schedule 5):

(1) Can examples be provided of situations in which the Australian Customs and Border Protection Service has needed more personal information to pass onto companies or individuals alleging infringement of their copyright about those alleged to have imported infringing goods (section 135AC(8)(a)) .

(2) Can a description be provided of the kinds of personal information which the Australian Customs and Border Protection Service envisages collecting.

(3) Can an outline be provided of the safeguards for persons or companies whose personal information is being divulged to the complainant.

(4) Is there is a requirement that the alleged copyright infringer be made aware that personal information is being disclosed.

(5) Do those filing a notice with the Australian Customs and Border Protection Service asking for the seizure of goods have to prove to that organisation that the goods are infringing copyright before customs will intervene?

(6) Can personal information be passed on to a complainant without proof of infringement of copyright?

(7) Would recent amendments to the Copyright Act 1968 and the inclusion of 'personal information' make permissible the kinds of surveillance conducted in New Zealand in the Megaupload case.

Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Link to this | Hansard source

The Attorney-General has provided the following answer to the honourable senator's question:

(1) Can examples be provided of situations in which the Australian Customs and Border Protection Service has needed more personal information to pass onto companies or individuals alleging infringement of their copyright about those alleged to have imported infringing goods (section 135AC(8)(a)) .

Customs and Border Protection will not collect any additional personal information under the revised legislation. Currently, some importers may avoid identification for civil action by nominating fake addresses or storage facilities on their import documentation, or the documentation itself maybe incomplete. Under the revised legislation, where it is known and considered appropriate, Customs and Border Protection may release, for example, the name of a company principal or an alternative private address to assist with the serving of legal documents.

Disclosure of the overseas supplier will also be permitted under the revised amendments.

(2) Can a description be provided of the kinds of personal information which the Australian Customs and Border Protection Service envisages collecting.

As noted above, no additional personal information is to be collected. Commercial trade information is received from importers as part of normal import clearance reporting procedures, copied from international mail consignments or taken from international travellers carrying commercial quantities of suspected counterfeit goods. Information may also be received and recorded by Customs and Border Protection from objectors as to persons or entities they suspect of infringing their rights.

(3) Can an outline be provided of the safeguards for persons or companies whose personal information is being divulged to the complainant.

Existing provisions under s16 of the Customs Administration Act 1985, restricts the release of information acquired by Customs and Border Protection, except in specific circumstances, including where it is authorised by another law. Severe penalties apply to breaches of the Act.

The Trade Mark and Copyright Acts authorise the disclosure of those information fields specified under the amended Acts. Information may only be disclosed where a rights holder has asserted their rights under the Notice of Objection Scheme, where a Customs Officer has a reasonable suspicion that goods detected at the border are counterfeit or pirated, the goods appear to be for a commercial purpose or public display, and formal seizure action has been undertaken.

Any personal information disclosed to a rights holder is limited to information that will assist a right holder to identify the importer name and locate the home or business address and address for service. Additionally the name and address of any entity responsible for making arrangements on behalf of the designated owner for the goods to be brought to Australia may also be disclosed.

(4) Is there is a requirement that the alleged copyright infringer be made aware that personal information is being disclosed.

No. However there is an obligation for Customs and Border Protection to advise the importer / designated owner of the seizure of the goods, in which case the infringer would become aware that information relevant to the seizure will be released to the rights holder.

(5) Do those filing a notice with the Australian Customs and Border Protection Service asking for the seizure of goods have to prove to that organisation that the goods are infringing copyright before customs will intervene?

No. Customs and Border Protection makes the decision to seize based upon information or intelligence the agency holds that leads to a reasonable suspicion that the goods are counterfeit or pirated. In most cases, the goods seized will provide the evidence of the goods being infringing for any subsequent litigation action undertaken by the rights holder.

(6) Can personal information be passed on to a complainant without proof of infringement of copyright?

Personal information is disclosed to a rights holder / objector only when a seizure is made, and in the circumstances described above. In Australia, only the courts can determine if goods are infringing.

(7) Would recent amendments to the Copyright Act 1968 and the inclusion of 'personal information' make permissible the kinds of surveillance conducted in New Zealand in the Megaupload case.

The Copyright Act does not provide law enforcement agencies with specific surveillance powers relating to IP infringement.