Passing of new copyright laws
Amendments made to the Copyright Act 1968 (Cth) in Australia by the Copyright Amendment Act 2006 (Cth) are now in full force. These amendments:
- introduce a new fair dealing defence for parody and satire;
- provide exceptions to allow “time-shifting” and “format-shifting”;
- clarify and expand the criminal offence regime of the Copyright Act and certain other civil provisions;
- clarify the meaning of “reasonable portion” for the purposes of the fair dealingexception for research or study; and
- provide new technological protection measures as required under the Australia US Free Trade Agreement.
New “fair dealing” exception for parody or satire
The amendments introduce a new fair dealing exception for use of copyright material for the purposes of parody or satire. “Parody” and “satire” are not defi ned. It is interesting to note that this new defence does not apply to infringement of an author’s moral rights, in particular the right not to have the work subject to derogatory treatment (the so-called right of integrity).
New exceptions to infringement – “time-shifting” and “format-shifting”
New “time-shifting” exception
The amendments introduce a new “time-shifting” exception, allowing the making of a cinematograph fi lm or sound recording of a broadcast solely for private and domestic use by watching or listening to the original broadcast at a more convenient time. The defi nition of “private and domestic use” has also been amended to include “private and domestic use outside domestic premises”, allowing a person to watch or listen to his or her “time-shifted” recording on a portable device.
The “time-shifted” film or recording can be lent to family and household members but general distribution for the purposes of trade or otherwise is prohibited. It cannot be sold or let for hire or exposed for sale or let for hire, nor can it broadcast or be caused to be heard in public.
New “format-shifting” exception
The amendments also introduce new “formatshifting” exceptions for some copyright material. A person can now make a copy of a book, newspaper, periodical publication, analogue-format video or photograph if:
- the person owns the book, newspaper, periodical publication, analogue-format video or photograph;
- the copy is made for “private and domestic use”;
- the copy is in a different format to the original (this means that:
- for an original analogue-format video, the copy must be in electronic form;
- for an original photograph in electronic form, the copy must be in hardcopy form; and
- for an original photograph in hardcopy form, the copy must be in electronic form);
- the book, newspaper, periodical publication, analogue-format video or photograph is not itself an infringing copy;
- the person has not already made a copy of the book, newspaper, periodical, analogue-format video or photograph in the same format as the intended copy;
- the person keeps the original from which the copy is made; and
- any temporary reproductions made as a necessary part of the technical process of making the copy are destroyed at the first practicable time.
A person can also now make copies of sound recordings owned by them in one format (eg. a CD) for playback in formats used by other devices owned by that person (eg. a portable mp3 player), but only for “private and domestic use”. The exception does not apply to digital recordings of radio broadcasts (so called “podcasts”). The sound recording from which the copy is made must also not be an infringing copy.
Once again, “format-shifted” copies can be lent to family and household members but general distribution for the purposes of trade or otherwise is prohibited. The “format-shifted” copy cannot be sold or let for hire or exposed for sale or let for hire nor used for broadcasting or causing the sound recording to be heard in public.
The Minister is obliged to review the “formatshifting” provisions relating to photographs and analogue-format video by 31 March 2008.
Criminal and Civil Provisions
Bringing the Copyright Act in line with the structure in the Criminal Code, the amendments replace the previous criminal offences regime with a three-tiered system comprising indictable, summary and strict liability offences. Indictable offences are serious offences and often (but not necessarily always) involve an intention to commit the offence. Summary offences are crimes of a less serious nature which, for the purposes of the new amendments, involve being negligent to the fact that copyright infringement is or has taken place. Strict liability offences are offences for which no fault element needs to be established.
For example, if an individual:
- made a copy of a work without the permission of the copyright owner intending to sell, hire, obtain a commercial benefit or profit from that infringing copy, according to the new amendments that individual would have committed an indictable offence and would face a possible fine of up to 550 penalty units (currently, $60,500) or up to 5 years jail or both;
- made the copy without intending to sell, hire, obtain a commercial benefi t or profi t from that infringing copy, but was negligent to the fact that the copy was an infringing copy, that individual would have committed a summary offence and would face a possible fi ne of up to 120 penalty units (currently $13,200) or 2 years jail or both; or
- made the copy and did not intend to sell, hire, obtain a commercial benefit or profit from the copy of the work, and was not negligent to the fact that the copy was an infringing copy, but still made that copy in preparation for or in the course of selling, hiring, obtaining a commercial benefit or profi ting from that copy, that individual would have committed a strict liability offence and would face a maximum possible fine of 60 penalty units (currently $6,600). Alternatively, by committing a strict liability offence, that individual may be liable to receive an Infringement Notice (similar to a parking or speeding fine) requiring that individual to pay up to one-fifth of the maximum payable penalty for that offence (which equates to $1,320 in the example above).
Penalties for criminal offences have also increased across the board.
The amendments also provide that an indictable offence will be an aggravated offence where the infringing copy was made by converting a hard copy or analogue work to a digital or electronic machinereadable form. Essentially, this means an increase in the maximum fi ne to 850 penalty units (currently $93,500) Corporations should note that they may be liable for up to five times the maximum penalty.
It should also be noted that the criminal liability of a person stands as a separate issue to the civil liability of that person for the same conduct. That is, a person may still be sued by the copyright owner for infringement irrespective of whether that person is charged with a criminal offence.
The amendments also:
- provide for the presumption of certain facts (in both civil and criminal matters) relating to the ownership and subsistence of copyright in an article or thing based on copyright labels and marks, making it easier for criminal prosecutions to occur; and
- allow courts to consider the commercial scale of copyright infringement in granting civil remedies, which may increase the amount of damages awarded to a successful plaintiff.
Previously, copyright owners (and exclusive licensees) lodging Notices of Objection with the Australian Customs Service (Customs) to prevent the importation into Australia of infringing copies of copyright material had to provide up-front security before Customs would seize any infringing imports. The amendments substitute this requirement with one where the objector has to provide an undertaking to repay the expenses incurred by Customs in seizing infringing imports. This may make the Customs seizure mechanism more accessible.
New civil actions are now available for channel providers, and any other person interested in the copyright in an encoded broadcast, in relation to the making of or dealing with an unauthorised decoder. An action may also be brought against a person who:
- makes an unauthorised decoder available online;
- causes unauthorised access to an encoded broadcast without the broadcaster’s authorisation; or
- makes commercial use of a subscription broadcast without the broadcaster’s authorisation.
- The amendments also introduce corresponding criminal provisions for such conduct.
Clarification of “reasonable portion” for “fair dealing” exception for research or study
The amendments clarify the pre-existing “fair dealing” exception for research or study in relation to reproductions of works not contained in a periodical publication. For:
- literary, dramatic or musical works (excluding computer programs) or adaptations of them contained in published editions of at least 10 pages; and
- literary (excluding computer programs and electronic compilations eg. databases) and dramatic works published in electronic form, only the reproduction of a “reasonable portion” of such works is taken to be a “fair dealing” for the purposes of research or study.
The amendments specify that the following is a “reasonable portion” in each of the following scenarios.
A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages.
Amount that is a reasonable portion:
- 10% of the number of pages in the edition; or
- if the work or adaptation is divided into chapters—a single chapter.
A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work.
Amount that is a reasonable portion:
- 10% of the number of words in the work or adaptation; or
- if the work or adaptation is divided into chapters—a single chapter.
Technological Protection Measures (TPMs)
The amendments allow copyright owners to take legal action against a person who circumvents an accesscontrol TPM. Access-control TPMs are used by copyright owners to restrict access to copyright material. Prior to the changes, copyright laws only prevented the unauthorised use of copy-control TPMs, which are used by copyright owners to control the use of copyright material.
The new provisions provide for civil (and in some cases criminal) liability in relation to:
- circumventing access-control or copy-control TPMs;
- manufacturing or supplying circumvention devices for either type of TPM; and
- providing services to circumvent either type of TPM.
The amendments specifi cally provide that devices controlling the geographic market segmentation of cinematograph fi lms are not TPMs, and are therefore not regulated by the amendments.
Archives, educational institutions, people with disabilities and key cultural institutions
The amendments insert a new exception for use of copyright material by bodies administering libraries or archives, educational institutions, or by people with a disability where the use amounts to a “special case”, does not confl ict with a normal exploitation of a work and does not unreasonably prejudice the legitimate interests of the copyright owner.
Other amendments have also been made in relation to the offi cial copying of library and archive material, including the use of copyright material by “key cultural institutions”, which deal with material of historical or cultural signifi cance to Australia.
Maker of communication
These amendments clarify that a person is not responsible for the making of a communication if he or she merely gains access to what is made available online by someone else or he or she receives the communication electronically.
Responses to Digital Agenda review – Educational institutions
These amendments provide educational institutions greater scope to use copyright material in providing educational instruction. The provisions allow:
- the copying and communication of free-toair broadcasts made available online by the broadcaster, (although the broadcaster may determine conditions of access to such material);
- the copying and communication of anthologies published in electronic form under certain conditions;
- the communication of copyright material to a class; and
- the proxy caching of websites under certain conditions.
Copyright Tribunal amendments
Changes have been made to provisions governing the manner in which the Copyright Tribunal determines the conditions relating to statutory and other copyright licences administered by the various copyright agencies. Scope has been added for the Australian Competition and Consumer Commission (ACCC) to be made a party to proceedings before the Tribunal if the ACCC requests or the Tribunal thinks it appropriate to do so. A party to proceedings may also request that the Tribunal have regard to relevant guidelines published by the ACCC when making its decision.
These amendments will affect many copyright users (and abusers). It will be interesting to see how the new parody/satire defence develops. For example, it is arguable that a different result may have ensued in the recent litigation between Channels 9 and Ten concerning The Panel, had the defence existed at that time. The severity of the new criminal penalties and expanded three-tier system means that individuals and corporations will need to be wary of their various activities to ensure that they are not committing an offence, let alone infringing copyright. The various presumptions relating to copyright ownership and subsistence may also mean that offences are easier to prosecute. The exceptions to copyright infringement for “time-shifting” and “format-shifting” align Australian copyright law with current practice and would seem unlikely to have much practical effect. Having said that, it is important to note that these new exceptions do not necessarily authorise all current such uses of copyright (such as “podcasting”).