Implications of Australia’s Digital Agenda copyright reforms
The changes introduced by the Copyright Amendment (Digital Agenda) Act 2000 ("the Amendment Act") include the following.
New right of communication to the public
The Amendment Act grants copyright owners a new right, the right to communicate their copyright material to the public, which replaces the narrower and technology-specific broadcasting and diffusion rights. Owners of copyright in published editions are not, however, granted the new right. "Communicate" is defined as meaning make available online or electronically transmit whether over a path or a combination of paths provided by a material substance or otherwise. It is thus made clear that the unauthorised making available of copyright material online infringes copyright.
The Amendment Act provides that a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication. Thus communications carriers and ISPs will not infringe the new right of communication if they are not responsible for the content of the material communicated via their networks. The Amendment Act also provides that copyright is not infringed by making a temporary reproduction of copyright material as part of the technical process of making or receiving a communication. The Act goes on to provide that this exception does not apply to a reproduction made as part of the technical process of making a communication if the making of the communication is an infringement of copyright.
Generally speaking, the current defences and exemptions to copyright infringement apply in relation to the new communication right.
Liability of communications carriers, ISPs and others
In addition to defining who is the maker of a communication, the Amendment Act provides that a person will not be liable for having authorised a copyright infringement merely by providing the facilities by which a communication to the public is made. Apart from this, the established principles of law continue to apply to determine whether a person is liable for copyright infringement on the basis of authorising another person to infringe copyright. However, the Amendment Act codifies some of these principles. In particular, the Amendment Act provides that in determining whether or not a person has authorised another to infringe copyright, the matters that must be taken into account include the following:
- the extent (if any) of the person's power to prevent the infringement;
- the nature of any relationship existing between the person and the infringer;
- whether the person took any reasonable steps to prevent or avoid the infringement, including whether the person complied with any relevant industry codes of practice;
New enforcement measures
The Amendment Act provides for civil remedies and criminal sanctions against those who make, sell, distribute or deal in circumvention devices capable of circumventing technological protection measures protecting copyright material if such persons knew, or ought reasonably to have known, that the devices would be used to circumvent technological protection measures. Similar remedies and sanctions apply in relation to those providing or promoting circumvention services. Also similar enforcement provisions are introduced against those who make, sell, distribute or deal in broadcast decoding devices. Additionally, civil liability is imposed on those who use broadcast decoding devices for commercial purposes.
The Amendment Act also provides for civil remedies and criminal sanctions against those removing or altering rights management information attached to copyright material if such persons knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of copyright. The Amendment Act further provides for civil remedies and criminal sanctions against those commercially dealing with or communicating to the public copyright material which they know has had rights management information removed or altered if such persons knew, or ought reasonably to have known, that their actions would induce, enable, facilitate or conceal an infringement of copyright.
The Amendment Act makes it clear that the copyright owners' reproduction right includes the right to digitise their material by providing that most copyright material is taken to have been reproduced if it is converted into or from a digital or other electronic machine – readable form.
The Amendment Act introduces a new definition of computer program as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. The Amendment Act also provides that a computer program is taken to have been reproduced if an object code version of the program is derived from the program in source code and vice-versa.
The Amendment Act also introduces a statutory licensing scheme for certain retransmissions of free-to-air broadcasts.
Other Legislative Reforms
Parallel or gray imports
The Federal Government has announced that it will amend the Copyright Act 1968 to allow for parallel importation of legitimately produced books, periodicals, printed music and software products including computer-based games. The reforms in relation to books will be implemented 12 months after the passage of the amending legislation in order to assist the industry to adapt.
Further changes have been recommended by a majority of the Intellectual Property & Competition Review Committee in its Report on Parallel Importing under the Copyright Act 1968. The majority recommends that all the provisions limiting the parallel importation of copyright material be repealed.
A Bill implementing a moral rights regime for certain copyright creators, the Copyright Amendment (Moral Rights) Bill 1999, is currently before the Federal Parliament. Debate on the Bill is scheduled to take place in the Spring sittings of Parliament which conclude on 7 December 2000. The Federal Government is also currently considering whether, and if so how, the Copyright Act 1968 should be amended to include directors as owners of copyright in film.