Commonwealth Numbered Regulations - Explanatory Statements

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COPYRIGHT REGULATIONS (AMENDMENT) 1995 NO. 129

STATUTORY RULES 1995 No. 129

Issued by the Authority of the Minister for Justice

Copyright Act 1968

Copyright Regulations (Amendment)

Section 249 of the Copyright Act 1968 (die 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 out or giving effect to the Act. The Copyright Regulations (the Regulations) prescribe matters in provisions of the Act in the ways specified in section 249.

Paragraph 135AC(2)(a) of the Act provides that seized copies of copyright material will be released to the importer unless the objector (die copyright owner) institutes a copyright infringement action within a specified period from the day specified in the notice of seizure.

Subsection 135AC(3) of the Act provides that the period specified for the purposes of paragraph 135AC(2)(a) is the period prescribed for the purposes of that paragraph. Subsection 135AC(5) provides that an objector may request that the retention period be extended. Subsection 135AC(6) of the Act provides that the Comptroller-General of Customs may extend the retention period for a prescribed period.

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) in relation to border enforcement measures. The TRIPS Agreement is an integral part of the Agreement Establishing the World Trade Organization (WTO). The WTO Agreement came into force for Australia on 1 January 1995.

Among other things, the Copyright (World Trade Organization Amendments) Act 1994 (Copyright (WTOA) Act) amended the Copyright Act to permit the owner of copyright material, or an exclusive licensee, to object to the importation of infringing copyright material into Australia for commercial purposes. These amendments to the Act will commence on 1 July 1995. Infringing copyright material may be copies made without the permission of the copyright owner or exclusive licensee in the jurisdiction in which they are made. Infringing copyright material may also be copies of copyright material authorised to be made by the copyright owner in the jurisdiction where they were made, but imported into Australia without the permission of the copyright owner or exclusive licensee for Australia.

The Act provides that a copyright owner or exclusive licensee may lodge a notice of objection to the importation of copies of copyright material with the Comptroller-General of Customs. The Comptroller-General has authority under the Act to seize copies of imported copyright material that are the subject of a notice of objection. The Comptroller-General of Customs must notify the objector and the importer of the seizure. The Act provides that if the objector does not institute a copyright infringement action within a prescribed time period, from the day specified in the notice of seizure, the seized copyright material must be released to the importer. The Act provides that this period (the "retention period") may be extended by the Comptroller-General of Customs for a further prescribed period.

The regulations amend the Regulations to prescribe both of the time periods referred to above. The regulations amend the Regulations to provide a period of 10 working days for the purposes of paragraph 135AC(2)(a) of the Act.

The amending regulations amend the Regulations to prescribe that the period by which the retention period may be extended is 10 working days after the expiry of the first period.

The amending regulations delete some subregulations that are no longer necessary. The amendments made by the Copyright (WTOA) Act included some of these provisions in the Copyright Act. Other deletions made by the amending regulations, including the removal of Schedule 9 (a prescribed form of notice of objection to importation), give effect to a decision not to require a prescribed form for the notice of objection.

Details of the regulations are set out in the Attachment.

Attachment

Details of Copyright Regulations (Amendment):

Regulation 1: Commencement

Subregulation 1.1 provides that these regulations commence on 1 July 1995.

Regulation 2: Amendment

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

Regulation 3: Regulation 21 (Restriction of importation into Australia of copyright material)

Subregulation 3.1 amends regulation 21 by deleting subregulations 21(1), (2), (4), (5) and (6). Subregulations 21(1) and (2) are unnecessary as it is not required that a notice of objection to the Comptroller-General should be in a prescribed form. For the convenience of users, a form that may be used has been prepared by the Australian Customs Service. Subregulations 21(4), (5) and (6) are no longer necessary as amendments made to the Act by the Copyright (World Trade Organization Amendments) Act 1994 provide for border enforcement matters in the Act that were previously provided for in the regulations.

Regulation 4: New regulations 22 and 22A

Subregulation 4.1 inserts new regulations 22 and 22A into the Regulations. Paragraph 135AC(2)(a) of the Copyright Act 1968 provides that unless an objector institutes a copyright infringement action within a specified period from the day specified in the notice of seizure the seized copies will be released to the importer. New regulation 22 prescribes a period of 10 working days for the purposes of that paragraph.

Paragraph 135AC(6) of the Act provides that the Comptroller-General of Customs may extend the retention period for a prescribed period on the application of the objector. New regulation 22A prescribes that the period for the purposes of subsection 135AC(6) is 10 working days.

New regulations 22 and 22A are necessary for Australia to comply with its obligations under Article 55 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Regulation 5: Schedule 9 (Notice for the purposes of section 135 of the Copyright Act 1968)

Subregulation 5.1 repeals Schedule 9 in the Act. Schedule 9 comprises a prescribed form for the notice of objection for the purposes of section 135 of the Act. A prescribed form for the notice of objection is no longer required to be used for the purposes of seizure of copyright, material pursuant to section 135 of the Act.