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COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) 1994 NO. 114EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 114
Issued by the Authority of the Minister for Justice
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 not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying our or giving effect to the Act. Sections 184 and 248U of the Act provide that, subject to certain limitations, regulations may be made applying the provisions of the Act in relation to foreign countries in certain specified ways. The Copyright (International Protection) Regulations (the Regulations) apply provisions of the Act in the ways specified in ss. 184 and 248U in relation to the countries listed in the Schedules of the Regulations.
The regulations amend the Regulations and have the effect of providing protection to performances of citizens, nationals and residents of the United States of America in so far as the performances are incorporated in a sound recording or in relation to the sound broadcast or transmission to subscribers of a diffusion service of their live performances. This protection applies in certain circumstances consistent with the circumstances in which protection applies in the case of citizens, nationals and residents of member countries of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention). Performances by Australian citizens and residents given in the USA or recorded or broadcast by US nationals are also protected.
The regulations also add to, and make omissions from, the fist of countries in Parts I, II, and IV of Schedule 1 of the Regulations. The countries in Part I of Schedule 1 of the Regulations are the members of the Berne Convention for the Protection of Literary and Artistic Works. The countries in Part H of Schedule 1 are the members of the Universal Copyright Convention which are not also members of the Berne Convention. The countries in Part IV of Schedule 1 are the members of the Rome Convention.
The protection for US performers responds to concern expressed by the Australian recording industry and the US Government about the commercial distribution in Australia of copies of unauthorised recordings of US performers and concern about the detrimental effect of that activity on the Australian recording industry and damage to Australia's reputation as a country with high copyright standards.
The regulations grant protection to performances given on or after the date of commencement by US and Australian citizens, nationals and residents in the circumstances stipulated.
The USA is not a member of the Rome Convention, which is the only international convention in force for the protection of performers. Section 248U(3) of the Copyright Act 1968 requires that regulations to extend protection to performers of countries other than those that are members of a relevant international convention may not be made under the provisions of s248U(1) and (2) unless the Governor-General is satisfied that, in respect of the performances to which those provisions relate, provision has or will be made under the law of that country under which adequate protection is or will be given to performers whose performances are protected under the Act.
It is considered that adequate protection is or will be available in the USA for the following reasons.
Australia has received official advice from the US Government that in the USA the ability of a performer to prevent unauthorised fixations and reproductions of his or her performance is deemed so fundamental that it is not tied to reciprocity or obligations under existing international conventions. The nationality of the performer and the location of the performance have no relevance to any determination under US law.
In the relevant case, protection of Australian performers in the USA is secured through a combination of state statutes and common law. Thirty American states covering over 70% of the US population have criminal statutes that prescribe criminal liability for the unauthorised fixation of live performances and for commercial practices in respect of any such fixations. Under the common law, remedies of unfair competition, misappropriation and right of publicity may be relevant depending on the circumstances.
Australia and the USA have indicated an intention to be bound by the conclusion of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) which includes the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs). Article 14.1 of the TRIPs text provides:
"In respect of the fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation: the broadcasting by wireless means and the communication to the public of their live performance."
The USA has provided an official assurance that the USA considers that its laws already comply with this requirement. Additionally, the USA will have an international obligation, expected to arise in the near future, to comply with this requirement, should it join, as expected, the World Trade Organisation and ratify the Uruguay Round of the GATT.
Details of the regulations are set out in the Attachment.
Details of Copyright (International Protection) Regulations (Amendment):
These Regulations commenced on gazettal.
Regulation 1: Amendment
Subregulation 1.1 provides that the Copyright (International Protection) Regulations are amended as set out in the Copyright (International Protection) Regulations (Amendment).
Regulation 2: New regulation 4B
Subregulation 2.1 provides that US performers are afforded protection against certain unauthorised uses of their performances, these being, incorporation of their performances in a sound recording, the sound broadcast of their live performance and the sound diffusion of their live performance by cable. These provisions substantially implement, in relation to the USA, obligations set out in the agreement on TRIPs under the Uruguay Round of the GATT. The points of attachment for this protection are the same as those provided in the Rome Convention. Accordingly, the protection extends to performances when: the performance is given in a Rome Convention country or the USA, is recorded by a national of a Rome Convention country or the USA, is broadcast from a Rome Convention country or the USA and when the performance is first recorded in a Rome Convention country or the USA.
Subregulation 2.1 affords to US performers the benefits of Part XIA of the Act, only in relation to the aural fixation of their performances.
Subregulation 2.1 extends protection in the same circumstances as provided to US citizens, nationals and residents, to Australian performers when the performance is: given in the USA, recorded by a US national, broadcast from the USA, and first recorded in the USA. This complements the protection otherwise provided to Australian performers under the Act and the Regulations.
Regulation 3: Schedule 1 (Countries to which the provisions of the Act apply)
Subregulation 3.1 provides that Czechoslovakia be omitted from Part 1 of Schedule 1 (which lists membership of the Berne Convention for the Protection of Literary and Artistic Works). This is replaced by the successor countries, the Czech Republic and Slovakia.
Subregulation 3.2 adds the following countries to Part 1 of Schedule 1: Albania, Bolivia, Bosnia Herzegovina, Czech Republic, El Salvador, Jamaica, Namibia, Nigeria, Saint Lucia, Slovakia, and The former Yugoslav Republic of Macedonia. These additions bring the Schedule up to date with the latest accessions to membership of the Berne Convention.
Subregulation 3.3 provides that the following countries be omitted from Part H of Schedule 1 (which lists those countries that are members of the Universal Copyright Convention only, that is, it does not include those UCC members that are also members of the Berne Convention): Bolivia, China, People's Republic of, Croatia, Republic of, Democratic Kampuchea, Ecuador, El Salvador, Ghana, Kenya, Malawi, Nigeria, Paraguay and Zambia.
China and Croatia were added in error to Part H of the Schedule by SR 214 of 1993. These countries have joined both the Berne Convention and the UCC. They have already been added to Part 1 of Schedule 1. The omission of Democratic Kampuchea takes account of the change of the name of that country back to Cambodia. Bolivia, El Salvador, and Nigeria have been added to Part I of Schedule 1 by this regulation and the remaining countries were added to Part 1 by SR 214 of 1993.
Subregulation 3.4 provides for the insertion of: Belarus, Cambodia, Kazakhstan, Tajikistan and Ukraine into Part 11 of the Schedule. Apart from Cambodia, these countries were constituent members of the former USSR which was a member of the UCC.
Subregulation 3.5 omits Czechoslovakia from Part IV of the Schedule (which lists membership of the Rome Convention).
Subregulation 3.6 adds the following countries to Part IV of Schedule 1: Bolivia, Czech Republic, Jamaica, Netherlands, Nigeria, Slovakia, and Switzerland.
These changes similarly take account of new accessions to the Rome Convention and the division of Czechoslovakia.