Commonwealth Numbered Regulations - Explanatory Statements

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COPYRIGHT (INTERNATIONAL PROTECTION) REGULATIONS (AMENDMENT) 1995 NO. 67

EXPLANATORY STATEMENT

STATUTORY RULES 1995 No. 67

Issued by the Authority of the Minister for Justice

Copyright Act 1968

Copyright (International Protection) Regulations (Amendment)

Sections 184 and 248U of the Copyright Act 1968 (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. Section 249 of the the Act provides that the GovernorGeneral 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 out or giving effect to the Act. The Copyright (International Protection) Regulations (the Regulations) apply provisions of the Act in the ways specified in sections 184 and 248U in relation to the countries listed in the Schedules of the Regulations.

The regulations amend the Regulations to give effect to Australia's copyright obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and update the Regulations in other respects.

The TRIPS Agreement is an integral part of the Agreement Establishing the World Trade Organization (WTO), that was done at Marrakesh on 15 April 1994. The WTO Agreement came into force for Australia on 1 January 1995. The regulations amend the Regulations to grant the rights under the Act in relation to members of the WTO.

The Regulations also amend the Regulations to update the list of countries in Schedules 1 and 3 of the Regulations.

The regulations amend the Regulations to add new Part V to Schedule 1 of the Regulations. Countries in this part are members of the WTO. The regulations add references to this new part of Schedule 1 to regulation 4 thereby providing for the application of the copyright provisions of the Act in relation to WTO members in the same way as it is currently extended in relation to countries in Parts 1, II and III of Schedule 1 by that regulation.

Part V of Schedule 1 lists all members of the WTO. Many countries listed in other parts of Schedule 1 are repeated in new Part V of Schedule 1. This repetition is not intended to have any legal consequence.

The regulations amend the Regulations to extend protection to performers who have a relevant connection with a WTO member that is not also a member of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention). This regulation would grant the minimum performers' rights as required by the TRIPS Agreement. Protection is already afforded to performers having a relevant connection with countries that are members of the Rome Convention.

To effect this change, the regulations amend the Regulations to repeal and replace regulation 4B. Regulation 4B previously provided performers' protection for US and Australian performers. Such protection applies under new regulation 4B as the USA is a member of the WTO and is in new Part V of Schedule 1. The operation of section 48 of the Acts Interpretation Act 1901 ensures that any action arising out of previous regulation 4B, prior to its repeal, is saved. Amendments to the Act by the Copyright (World Trade Organization Amendments) Act 1994 have removed the necessity to refer to Australian nationals in the Regulations.

The regulations amend regulation 13 of the Regulations to protect persons who have made an investment in a recorded performance prior to it being protected by reason of the inclusion of a country in Part V of Schedule 1. The regulation, however, also amends regulation 13 to ensure that section 248QA of the Act operates without restriction. Section 248QA provides criminal sanctions against commercial dealings with existing unauthorised recordings.

The regulations have the effect of adding to and making omissions from the list of countries in Parts I, II and IV of Schedule 1 of the Regulations to take account of new accessions to the relevant conventions. The countries in Part 1 of Schedule 1 of the Regulations are members of the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention). The countries in Part 11 of Schedule 1 art.. members of the Universal Copyright Convention (the UCC) that are not also members of the Berne Convention. The countries in Part IV of Schedule 1 are members of the Rome Convention.

Schedule 3 in the Regulations is amended by the regulations. Schedule 3 comprises countries that provide adequate broadcast rights and rights to cause the sound recording to be heard in public to copyright owners in sound recordings.

Headings to the Schedules are added by the regulations to make clearer the scheme in the Regulations of granting rights in relation to members of agreements or treaties to which Australia is also a party. This amendment is of particular assistance in relation to Part II of Schedule 1 that lists countries that are members of the UCC that are not also members of the Berne Convention.

Details of the regulations are set out in the Attachment.

Attachment

Details of Copyright (International Protection) Regulations (Amendment):

Other than as provided in regulation 1, these Regulations commence on gazettal.

Regulation 1: Commencement

Subregulation 1.1 provides that regulations 4, 5, 6, 7 and 8 and subregulations 10.1 and 10.10 commence on 1 July 1995. This date is the same as the, date of the commencement of Part 4 of the Copyright (World Trade Organization Amendments) Act 1994 (Copyright (WTOA) Act) that made changes to the performers' protection provisions of the Act to conform it to requirements under the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS).

Regulation 2: Amendment

Subregulation 2.1 is a machinery provision that provides that the Copyright (International Protection) Regulations are amended as set out in the Copyright (International Protection) Regulations (Amendment).

Regulation 3: Interpretation

Subregulation 3.1 makes a minor amendment to update the reference to the Acts Interpretation Act 1901 in subregulation 3(3) of the Regulations.

Regulation 4: (Application of the Act)

Regulation 4 extends the foreign application of the copyright provisions of the Act to apply to members of the WTO.

Subregulation 4.1 amends subregulation 4(1) by adding a reference to Part V of Schedule 1. New Part V of Schedule 1 lists the members of the WTO. Subregulation 4(1) applies the provisions of the Act in relation to literary, dramatic, musical and artistic works and editions first published and sound recordings, cinematograph films made or first published in any of the countries listed in Parts I, II and III of Schedule 1. The effect of subregulation 4.1 is to apply subregulation 4(1) in relation to WTO countries as listed in Part V of Schedule 1.

Subregulation 4.2 amends subregulation 4(2) by adding a reference to Part V of Schedule 1. Subregulation 4(2) applies the provisions of the Act in relation to artistic works that are buildings situated in a country that is included in Parts I, II and III of Schedule 1. The effect of subregulation 4.2 is to apply subregulation 4(2) to WTO members as listed in Part V of Schedule 1.

Subregulation 4.3 amends subregulations 4(3) and 4(4) by adding a reference to Part V of Schedule 1. Subregulation 4(3) applies the copyright provisions of the Act in relation to citizens or nationals of countries listed in Parts I, II and III of Schedule 1 in the same way as the provisions are applied to Australian citizens. The effect of subregulation 4.3 is to also extend this provision to citizens or nationals of WTO members as listed in Part V of Schedule 1. Subregulation 4(4) applies the copyright provisions of the Act to residents of countries listed in Parts I, II and III of Schedule 1 in the same way as the provisions are applied to Australian residents. The effect of subregulation 4.3 is to apply subregulation 4(4) to WTO members as listed in Part V of Schedule 1.

Subregulation 4.4 amends subregulation 4(5) to delete references to Parts I-IV of Schedule 1. Subregulation 4(5) applies the provisions of the Act to bodies incorporated under the law of a country listed in Parts I-IV of Schedule 1 in the same way as the provisions of the Act apply to bodies incorporated under a law of the Commonwealth or of a State. The effect of subregulation 4.4 is to extend this provision to corporations incorporated in any country listed in Schedule 1, which includes the WTO members in Part V of Schedule 1.

Regulation 5: Regulation 4B (Additional application of the Act to certain performances)

Subregulation 5.1 repeals and replaces existing regulation 4B. Existing regulation 4B extended certain performers' rights in Part XIA of the Act to US and Australian nationals where the performer or the performance had a relevant connection with Australia, the USA or a country in Part IV of Schedule 1 (a "relevant country").

Existing regulation 4B extended certain performers' provisions of Part XIA of the Act in relation to performances fixed in a sound recording, the sound broadcast of performances and the, sound diffusion of performances by cable. A relevant connection is where a performance is given in relevant country, recorded by a national of a relevant country, broadcast from a relevant country and when the performance is first recorded in a relevant country.

New regulation 4B makes identical provision in relation to performers having a relevant connection with a country in Part V of Schedule 1 that is not also in Part IV of Schedule 1. The USA is one of these countries. The provision has been broadened to apply to countries additional to the USA.

The references to Australian nationals and to countries in Part IV of Schedule 1 in existing regulation 4B are omitted in new regulation 4B. These references are no longer necessary following a change to the Act made by the Copyright (WTOA) Act whereby a performance will attract protection if there is a connection through nationality of the performer or country of performance. Previously, both relevant nationality and relevant country of performance were necessary connecting factors.

Regulation 6: Regulation 8 (Copyright not to subsist in overseas editions in certain cases)

Regulation 6.1 amends paragraphs 8(a) and (b) to add reference to Part V of Schedule 1 thereby including WTO countries within the coverage of the regulation. These paragraphs limit the term of protection of published editions to the term of protection afforded in the country in which the published edition was published. The regulation applies where copyright exists only by reason of the operation of the Regulations. The same provision applies to published editions first published in or published by a national, citizen or resident of a member of the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention or a country with whom Australia has a bilateral relationship.

Regulation 7: Regulation 9 (Application of certain provisions of the Act to certain overseas works)

Regulation 7.1 amends subregulations 9(2) and (3) to add reference to Part V of Schedule 1. Subregulations 9(2) and (3) are machinery provisions to apply the relevant transitional provisions in the Act to the relevant works for which protection is granted by operation of the Regulations. This provision already applies to works first published in countries that are members of the Berne Convention and countries with which Australia has a bilateral relationship.

Regulation 8: Regulation 13 (Modification of application of provisions of the Act to performances)

Subregulation 8.1 amends paragraph 13(2)(a) to include reference to Part V of Schedule 1. Paragraph 13(2)(a) provides that performers, whose rights are protected by reason of a relevant connection with a country listed in Part IV of Schedule 1 following an amendment of that part, must agree to pay reasonable compensation before they can exercise their rights in relation to performances. This is only necessary where, a person has incurred costs or a liability in connection with an act in relation to a performance. The effect of subregulation 8.1 is to apply paragraph 13(2)(a) to members of the WTO as listed in Part V of Schedule 1.

Subregulation 8.2 adds new subregulations 13(4) and (5). New subregulation 13(4) is a correlative provision to subregulation 13(3). The new subregulation provides that a remaking of Part V of Schedule 1 is to be treated as an amendment of the part.

New subregulation 13(5) excludes the application of regulation 13 in relation to the operation of section 248QA in the Act as applied by the operation of the regulations. Section 248QA provides for criminal offences for future dealings with existing unauthorised sound recordings (ie, the so-called "bootleg" sound recordings of past performances). The subregulation ensures that performers do not have to offer compensation to a person who has made an investment in an existing unauthorised sound recording of a performance in order for there to be a criminal action concerning future dealings with the existing recording.

Regulation 9: The Schedules

Subregulation 9.1 omits the heading "the Schedules".

Regulation 10: Schedule 1 (Countries to which the provisions of the Act apply)

Subregulation 10.1 omits the heading and inserts a new heading to Schedule 1.

Subregulation 10.2 omits the heading to Part 1 of Schedule 1 and inserts a new heading to note that countries in Part 1 are members of the Berne Convention.

Subregulation 10.3 adds the following countries to Part I of Schedule 1: Estonia, Guyana, Lithuania, Russian Federation, St Kitts and Nevis and Tanzania. These additions bring the Schedule up to date with the latest accessions to membership of the Berne Convention.

Subregulation 10.4 omits the existing heading and provides a new heading to Part 11 of Schedule 1 to make it clear that the countries listed are members of the Universal Copyright Convention that are not also members of the Berne Convention.

Subregulation 10.5 provides that "Russian Federation" is omitted from Part H of Schedule 1. The Russian Federation has acceded to the Berne Convention and has been included in Part I of Schedule 1.

Subregulation 10.6 adds Saudi Arabia to Part II of Schedule 1. This addition takes account of the latest accession to the Universal Copyright Convention.

Subregulation 10.7 omits the existing heading and substitutes a new heading to Part III of Schedule 1 to note that countries in Part III are countries with whom Australia has concluded a bilateral copyright agreement.

Subregulation 10.8 omits the existing heading and substitutes a new heading for Part IV of Schedule 1 to note that countries listed in the part are members of the Rome Convention.

Subregulation 10.9 adds Hungary and Iceland to Part IV of Schedule 1. This change takes account of new accessions to the Rome Convention.

Subregulation 10.10 inserts Part V into Schedule 1 at the end. This new part lists the countries that are members of the World Trade Organization.

Regulation 11: Schedule 3

Subregulation 11.1 omits the existing heading and substitutes a new heading to Schedule 3 to note that countries listed in Schedule 3 afford rights to copyright owners in sound recordings for the secondary uses of sound recordings. It is the policy of the Government that countries that are listed in Schedule 3 must, at least, provide rights to equitable remuneration for the broadcast and public performance of sound recordings. The countries that would be included in the proposed regulations by this amendment have become members of the Rome Convention and have not reserved their obligations in relation to Article 12. At a minimum, Article 12 of the Rome Convention requires the payment of equitable remuneration for the broadcast and public performance of sound recordings.

Regulations 6 and 7 of the Regulations provide that copyright in sound recordings does not include the exclusive right to cause the sound recording to be heard in public, or rights in respect of broadcast unless the sound recording was made in a Schedule 3 country or was made by a national, citizen or resident of a Schedule 3 country.

Subregulation 11.2 adds the following countries to Schedule 3: Barbados, Bolivia, Chile, Dominican Republic, Greece, Honduras, Jamaica and Panama. These additions bring the Schedule up to date. These countries are considered to provide adequate rights for copyright owners in sound recordings in that they provide broadcast rights and the right to cause a sound recording to be heard in public.


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