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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Copyright
Amendment (Parallel Importation) Bill
2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to amend the Copyright Act 1968, and for related
purposes
ISBN: 0642 466173
Contents
Copyright Act
1968 3
Copyright Act
1968 11
Copyright Act
1968 15
A Bill for an Act to amend the Copyright Act 1968,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Copyright Amendment (Parallel
Importation) Act 2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 2 commences on the first anniversary of the day on which
this Act receives the Royal Assent.
(3) Items 4, 6, 8 and 9 of Schedule 3 commence immediately after
the commencement of Schedule 1.
(4) Items 1, 2, 3, 5 and 7 of Schedule 3 are taken to have
commenced immediately after the commencement of the Copyright Amendment
(Digital Agenda) Act 2000.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 10(1) (definition of
accessory)
Omit the word and paragraphs after “but does not”, substitute
“include any label, packaging or container on which the olympic symbol
(within the meaning of the Olympic Insignia Protection Act 1987) is
reproduced.”.
2 Subsection 10(1) (at the end of the definition
of accessory)
Add:
Note: See also section 10AD for an expanded meaning of
accessory in relation to certain imported
articles.
3 Subsection 10(1)
Insert:
electronic literary or music item means:
(a) a book in electronic form; or
(b) a periodical publication in electronic form; or
(c) sheet music in electronic form;
regardless of whether there is a printed form.
4 Subsection 10(1) (at the end of the definition
of infringing copy)
Add:
; or (i) a non-infringing copy of a computer program whose importation
does not infringe that copyright; or
(j) a non-infringing copy of an electronic literary or music item whose
importation does not infringe that copyright.
5 Subsection 10(1) (paragraph (c) of the
definition of non-infringing accessory)
After “that is”, insert “, or is”.
6 Subsection 10(1) (definition of
non-infringing copy)
Repeal the definition, substitute:
non-infringing copy:
(a) in relation to a sound recording, has the meaning given by
section 10AA; and
(b) in relation to a computer program, has the meaning given by
section 10AB; and
(c) in relation to an electronic literary or music item, has the meaning
given by section 10AC.
7 Subsection 10(1)
Insert:
qualifying country means:
(a) a country that is a party to the International Convention for the
Protection of Literary and Artistic Works concluded at Berne on 9 September
1886 as revised from time to time; or
(b) a country that is a member of the World Trade Organization and has a
law that provides consistently with the TRIPS Agreement for:
(i) the
ownership and duration of copyright or a related right in works, sound
recordings and cinematograph films; and
(ii) the owner of the copyright or related right to have rights relating
to the reproduction of the work, sound recording or cinematograph
film.
8 After section 10AA
Insert:
A copy of a computer program is a non-infringing copy only
if:
(a) it is made in a qualifying country; and
(b) its making did not constitute an infringement of any copyright in a
work under a law of that country.
A copy of an electronic literary or music item is a non-infringing
copy only if:
(a) it is made in a qualifying country; and
(b) its making did not constitute an infringement of any copyright in a
work, or in a published edition of a work, under a law of that
country.
Accessories
(1) If a person imports into Australia:
(a) an article that has embodied in it a copy of a computer program;
or
(b) an article that has embodied in it a copy of an electronic literary or
music item;
a copy of any work or other subject matter (other than a feature film) that
is on, embodied in, or included with, the article on its importation is taken to
be an accessory to the article.
Note: See also sections 44C and 112C (about the
non-infringement of copyright in works or other subject matter that are
accessories to imported articles).
Definition
(2) In this section:
feature film means a cinematograph film that:
(a) is produced wholly or principally for exhibition to the public in
cinemas or by way of television broadcasting; and
(b) is more than 20 minutes in duration.
Interpretation
(3) This section does not limit the meaning of accessory in
subsection 10(1).
9 Subsection 44C(1)
After “which is”, insert “, or is”.
10 At the end of subsection
44C(1)
Add:
Note: See the definition of accessory in
subsection 10(1) and see also section 10AD for an expanded meaning of
accessory in relation to certain imported
articles.
11 Subsection 44C(2)
After “that is”, insert “, or is”.
12 After section 44D
Insert:
The copyright in a literary work:
(a) that is a computer program; and
(b) that has been published in Australia or a qualifying
country;
is not infringed by a person who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the program; or
(d) does an act mentioned in section 38 involving an article that has
embodied in it a non-infringing copy of the program and that has been imported
into Australia by anyone.
Note: Section 130B deals with the burden of proof a
defendant bears in a civil action for infringement of
copyright.
The copyright in a work:
(a) that is, or is part of, an electronic literary or music item;
and
(b) that has been published in Australia or a qualifying
country;
is not infringed by a person who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the electronic literary or music item; or
(d) does an act mentioned in section 38 involving an article that has
embodied in it a non-infringing copy of the electronic literary or music item
and that has been imported into Australia by anyone.
Note: Section 130C deals with the burden of proof a
defendant bears in a civil action for infringement of
copyright.
13 Subsection 102(1)
Omit “112C and 112D”, substitute “112C, 112D and
112E”.
14 Subsection 103(1)
Omit “112C and 112D”, substitute “112C, 112D and
112E”.
15 At the end of subsection
112C(1)
Add:
Note: See the definition of accessory in
subsection 10(1) and see also section 10AD for an expanded meaning of
accessory in relation to certain imported
articles.
16 After section 112D
Insert:
If, in relation to a published edition of a work:
(a) the work is, or is part of, an electronic literary or music item;
and
(b) the edition has been published in Australia or a qualifying
country;
then the copyright in the published edition is not infringed by a person
who:
(c) imports into Australia an article that has embodied in it a
non-infringing copy of the electronic literary or music item; or
(d) does an act mentioned in section 103 involving an article that
has embodied in it a non-infringing copy of the electronic literary or music
item and that has been imported into Australia by anyone.
Note: Section 130C deals with the burden of proof a
defendant bears in a civil action for infringement of
copyright.
17 After section 130A
Insert:
In an action by a plaintiff for infringement of copyright described in
section 37 or 38:
(a) relating to the plaintiff’s copyright in a literary work that is
a computer program; and
(b) involving an article that has embodied in it a copy of the
program;
it must be presumed, unless the defendant proves otherwise, that the copy
is not a non-infringing copy so far as it relates to the plaintiff’s
copyright.
Note: Sections 37 and 38 deal with infringement of
copyright in literary works (among other things) by commercial importation and
dealings involving articles.
In an action by a plaintiff for infringement of copyright described in
section 37, 38, 102 or 103:
(a) relating to the plaintiff’s copyright in a work, or in a
published edition of a work, that is, or is part of, an electronic literary or
music item; and
(b) involving an article that has embodied in it a copy of the electronic
literary or music item;
it must be presumed, unless the defendant proves otherwise, that the copy
is not a non-infringing copy so far as it relates to the plaintiff’s
copyright.
Note 1: Sections 37 and 38 deal with infringement of
copyright in a work by commercial importation and dealings involving
articles.
Note 2: Sections 102 and 103 deal with infringement of
copyright in a published edition of a work (among other things) by commercial
importation and dealings involving articles.
18 Subsection 135(10)
Omit “112A or 112D”, substitute “44E, 44F, 112A, 112D or
112E”.
19 After section 198
Insert:
(1) A person who uses a registered trade mark in relation to imported
goods that are similar to goods in respect of which the trade mark is registered
does not infringe the trade mark if:
(a) the importation would have constituted an infringement of copyright
except for the operation of a parallel importation provision; and
(b) the trade mark was applied to, or in relation to, the goods before the
importation (whether the mark was applied before or after the commencement of
this section); and
(c) the trade mark was applied by, or with the consent of:
(i) a person who, at the time the mark was applied, was the registered
owner of the mark; or
(ii) a person who, at the time the mark was applied, was the owner of the
mark in the place where the mark was applied and who had been a registered owner
of the mark at any time before then.
(2) Unless the contrary intention appears, an expression used in this
section has the same meaning as in the Trade Marks Act 1995.
(3) In this section:
parallel importation provision means:
(a) section 44E, 44F or 112E; or
(b) section 44C or 112C (in so far as that section applies in
relation to an accessory to an article of the kind mentioned in subsection
10AD(1)).
20 Application
The amendments made by this Schedule apply in relation to the
following:
(a) works, or published editions of works, published before or after the
commencement of this Schedule;
(b) copies of computer programs imported into Australia after the
commencement of this Schedule (regardless of whether they were made before or
after the commencement of this Schedule);
(c) copies of electronic literary or music items imported into Australia
after the commencement of this Schedule (regardless of whether they were made
before or after the commencement of this Schedule).
1 Subsection 10(1) (paragraph (f) of the
definition of infringing copy)
Omit “non-infringing book”, substitute “non-infringing
printed literary or music item”.
2 Subsection 10(1) (definition of
non-infringing book)
Repeal the definition.
3 Subsection 10(1)
Insert:
non-infringing printed literary or music item has the meaning
given by section 10ACA.
4 After section 10AC
Insert:
A non-infringing printed literary or music item means a
printed book, a printed periodical publication or printed sheet music:
(a) that was made (otherwise than under a compulsory licence) in a
qualifying country; and
(b) whose making did not constitute an infringement of any copyright in a
work, or in a published edition of a work, under a law of that
country.
5 After subsection 10AD(1)
Insert:
(1A) If a person imports into Australia an article that is a printed book,
printed periodical publication or printed sheet music, then a copy of any work
or other subject matter (other than a feature film) that is included with the
article on its importation is taken to be an accessory to the
article.
Note: See also sections 44C and 112C (about the
non-infringement of copyright in works or other subject matter that are
accessories to imported articles).
6 Section 44A
Repeal the section, substitute:
The copyright in a work that has been published in Australia or a
qualifying country is not infringed by a person who:
(a) imports into Australia a non-infringing printed literary or music
item; or
(b) does an act mentioned in section 38 involving a non-infringing
printed literary or music item that has been imported into Australia by
anyone.
Note: Section 130D deals with the burden of proof a
defendant bears in a civil action for infringement of
copyright.
7 Section 44E (note)
Omit “Note”, substitute “Note 1”.
8 At the end of
section 44E
Add:
Note 2: If the copy of the computer program is embodied in a
printed book or printed periodical publication, see also section 44A (about
the non-infringement of copyright in any work).
9 Section 112A
Repeal the section, substitute:
The copyright in a published edition of a work, being an edition that has
been published in Australia or a qualifying country, is not infringed by a
person who:
(a) imports into Australia a non-infringing printed literary or music
item; or
(b) does an act mentioned in section 103 involving a non-infringing
printed literary or music item that has been imported into Australia by
anyone.
Note: Section 130D deals with the burden of proof a
defendant bears in a civil action for infringement of
copyright.
10 After section 130C
Insert:
In an action by a plaintiff for infringement of copyright described in
section 37, 38, 102 or 103:
(a) relating to the plaintiff’s copyright in a work or in a
published edition of a work; and
(b) involving an article that is a printed book, a printed periodical
publication or printed sheet music;
it must be presumed, unless the defendant proves otherwise, that the
article is not a non-infringing printed literary or music item so far as it
relates to the plaintiff’s copyright.
Note 1: Sections 37 and 38 deal with infringement of
copyright in a work by commercial importation and dealings involving
articles.
Note 2: Sections 102 and 103 deal with infringement of
copyright in a published edition of a work (among other things) by commercial
importation and dealings involving articles.
11 Subsection 198A(3) (paragraph (a) of the
definition of parallel importation provision)
Omit “44D, 44E, 44F, 112D or 112E”, substitute “44A, 44D,
44E, 44F, 112A, 112D or 112E”.
12 Subsection 198A(3) (paragraph (b) of the
definition of parallel importation provision)
After “10AD(1)”, insert “or (1A)”.
13 Application
The amendments made by this Schedule apply in relation to the
following:
(a) works, or published editions of works, published before or after the
commencement of this Schedule;
(b) printed books, printed periodical publications or printed sheet music
imported into Australia after the commencement of this Schedule (regardless of
whether they were made before or after the commencement of this
Schedule).
1 Subsection 10(1) (definition of
circumvention device)
Omit “effective”.
2 Subsection 10(1) (definition of
circumvention service)
Omit “effective”.
3 Subsection 10(1) (definition of
technological protection measure)
Omit “licensee”, substitute “exclusive
licensee”.
4 After paragraph
10AD(1)(b)
Insert:
or (c) an article that has embodied in it a copy of a sound
recording;
5 Paragraph 39A(a)
Omit “for the making, by reprographic reproduction, of copies of
documents”, substitute “(including a computer)”.
6 Subsections 44D(4) and
(5)
Repeal the subsections.
7 Paragraphs 53(b) and (c)
Omit “copy” (wherever occurring), substitute
“reproduction”.
Note: The heading to section 153C is altered by
omitting “section 135ZZV” and substituting
“section 135ZV”.
8 Subsection 198A(3) (paragraph (a) of the
definition of parallel importation provision)
Omit “44E, 44F or 112E”, substitute “44D, 44E, 44F, 112D
or 112E”.
9 Application
The amendments made by items 4 and 6 of this Schedule apply in
relation to copies of sound recordings imported into Australia after the
commencement of this item (regardless of whether they were made before or after
the commencement of this item).