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COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) 1991 NO. 451
EXPLANATORY STATEMENTSTATUTORY RULES 1991 No. 451
Issued by the Authority of the Attorney-General
Copyright Act 1968
Copyright (International Protection) Regulations (Amendment)
Section 249 of the Copyright Act 1968 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Amendments have been made to the Copyright (International Protection) Regulations (the Regulations) to extend protection under the Act to broadcasters which transmit broadcasts from countries which are members of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention). These amendments, together with those to protect foreign performances (see accompanying Statutory Rules No. ), will enable the Minister for Foreign Affairs and Trade to seek Executive Council approval for Australia to accede to the Rome Convention.
Subsection 184(1) of the Act, in paragraph (f), provides that the regulations may make provision applying any of the provisions of the Act (other than those of Part XIA) specified in the regulations, in relation to a country (other than Australia) so specified, so that the provisions apply in relation to television broadcasts and sound broadcasts made from places in that country by persons entitled under the law of that country to make such broadcasts in like manner as these provisions apply in relation to television broadcasts and sound broadcasts made from places in Australia by the Australian Broadcasting Corporation, by the Special Broadcasting Service, by a holder of a licence or permit granted under the Broadcasting Act 1942 or by a person prescribed for the purposes of subparagraph 91(a)(iii) or 91(c)(iii) of the Act.
Subsection 184(3) of the Copyright Act 1968 provides that regulations applying any of the provisions of the Act in relation to a country, not being a country that is a party to a Convention relating to copyright to which Australia is also a party, shall not be made unless the Governor-General is satisfied that, in respect of the class of works or other subject matter to which those provisions relate, provision has been or will be made under the law of that country by virtue of which adequate protection is or will be given to owners of copyright under the Act.
The amendments to the Regulations will extend protection to broadcasters based in, and making broadcasts from, countries which are members of the Rome Convention, a Convention of which Australia is not, as yet, a member. Article 2 of the Rome Convention imposes an obligation of providing national treatment on all member countries, ie, a member country must provide to nationals of other member countries the same protection as is accorded to its nationals, being at least the minimum protection guaranteed by the Convention. These amending regulations would, together with the amending regulations to protect foreign performances (Statutory Rules No. ), satisfy Australia's obligation to provide national treatment upon acceding to the Convention. Australia already provides national treatment in relation to makers of sound recordings from Rome Convention countries. Because of the obligation on each member country on becoming a member of this Convention, to which it is proposed Australia will accede, to provide national treatment to broadcasters of other member countries, the Governor-General is satisfied, in accordance with the provisions of subsection 184(3) of the Act, that adequate protection will be given to Australian broadcasts in those countries set out in the Schedule inserted by the amending regulations.
Details of the regulations are at Attachment A.
[91R025]
ATTACHMENT A
DETAILS OF THE COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) (THE REGULATIONS)
NOTES ON CLAUSES
Regulation 1: Commencement
This regulation provides for the regulations to commence on 1 January 1992.
Regulation 2: Amendment
This regulation provides for the Copyright (International Protection) Regulations to be amended as set out in these regulations.
Regulation 3: Interpretation
This regulation amends regulation 3 of the Regulations. The definition of "at a material time" and "the country of origin" in subregulation 3(1) are amended by omitting the words "other subject-matter" wherever they occur from these definitions and substituting "subject-matter other than a work".
The definition of "at a material time" in subregulation 3(1) is further amended by adding a provision extending the definition, in relation to sound broadcasts and television broadcasts, to mean the time when that broadcast was made.
A new definition of "relevant broadcaster" will be inserted into subregulation 3(1) and will mean a broadcasting organisation that:
(a) has its headquarters in the country from which the sound broadcast or the television broadcast, as the case may be, is made; and
(b) is entitled under the law of that country to make that sound broadcast or that television broadcast, as the case may be.
This definition is consistent with the reservation Australia will make pursuant to Article 6 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations.
Subregulation 3(2) will be amended by inserting the words "a sound broadcast, a television broadcast" after the words "sound recording".
Subregulation 3(4) will be omitted as a result of the reunification of the Federal Republic of Germany and the German Democratic Republic.
Subregulation 3(5) will be amended by omitting the words "other subject-matter" wherever occurring in the subregulation and substituting the words "subject-matter other than a work".
Regulation 4: Application of the Act
Subregulations 4(3) and 4(4) of the Regulations are amended by omitting the words "other subject-matter" wherever they occur and substituting the words "subject-matter other than a work".
Subregulation 4(5) will be amended by omitting the words "Part II or Part III" and substituting the words "Part II, Part III or Part IV", thus ensuring that the Act applies to incorporated broadcasters in the countries specified in Part IV of Schedule 1 in the same way as it does to Australian broadcasting corporations.
A new subregulation 4(6) will provide for copyright protection in Australia for relevant broadcasters, as defined in new subregulation 3(1), who transmit broadcasts from countries specified in Part IV of Schedule 1.
Regulation 5: Restriction of the application of the Act to certain classes of published works and to subject matter other than works
Subregulation 10(2) is amended by omitting the word "shall" and substituting the words "is to".
Regulation 6: Application of the Act in relation to broadcasts
A new regulation 10A is inserted which provides that, in spite of subregulation 4(6), copyright does not subsist in a sound broadcast or a television broadcast made from a place outside Australia before the commencement of this regulation.
Regulation 7: Modification of application of Provisions of the Act to works and to certain subject-matter other than works
This regulation amends regulation 11(1) and 11(2) by omitting the words "other subject-matter" wherever occurring and substituting the words "subject-matter other than a work (but not subject-matter that is a sound broadcast or a television broadcast)".
Regulation 8: Modification of application of Provisions of the Act to sound broadcasts and television broadcasts
A new subregulation 12(1) is inserted which provides that if a person has, at any time before the commencement of this regulation, taken action by which he or she has incurred expenditure or liability in connection with the doing of an act in relation to a sound broadcast or a television broadcast in a manner that at the time was lawful, or for the purpose of or with a view to the doing of an act in relation to a sound broadcast or a television broadcast at a time when the doing of the act would, but for the making of this regulation, have been lawful, nothing in the Principal Regulations diminishes or prejudices any right or interest arising in connection with the action that is subsisting and valuable immediately before the commencement of this regulation unless the person who, by virtue of the operation of those Regulations, has the exclusive right to do the act agrees to pay reasonable compensation to the first-mentioned person.
A new subregulation 12(2) is inserted which provides that where a person takes action by which he or she has incurred expenditure or liability in the circumstances described above, and before an amendment of the Principal Regulations comes into operation which includes the name of a country in Part IV of Schedule 1, nothing in the Principal Regulations diminishes or prejudices any right or interest arising in connection with the action that is subsisting and valuable immediately before the commencement of the amendment unless the person who, by virtue of the country being included in Part IV of Schedule 1, has the exclusive right to do the act agrees to pay reasonable compensation to the first-mentioned person.
A new subregulation 12(3) is inserted which provides that for the purposes of subregulation 12(2), if Part IV of Schedule 1 is remade, and on the remaking, the name of a country is included in the Part where immediately before the remaking, the name of the country was not included in Part IV, then the remaking of the Part is taken to be an amendment of the Principal Regulations that inserts the name of the country in Part IV.
Regulation 9: Schedule 1
This regulation adds a new Part IV to Schedule 1 of the Principal Regulations consisting of a list of the member countries of the Rome Convention.
Regulation 10: Schedule Schedule 3
This regulation omits the words "Federal Republic of Germany" and the "German Democratic Republic and substitutes the words "Germany, Federal Republic of" in Schedule 3.