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ROBIN~OY~:P~DDE~IC'
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1998
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
COPYRIGHT AMENDMENT BILL 1997
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Attorney-General, the Hon Daryl Williams AM QC MP)
15648 Cat No 98 2997 4 ISBN 0644 527307
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COPYRIGHT AMENDMENT BILL 1997
Outline
The Government amendments to the Copyright AmendmentBill 1997 will make a
number of changes to Schedules 1, 2, 3, 7, 9, 10 and 11 to the Bill, including the
following:
In Schedule 1 of the Bill, in relation to moral rights for authors, the Government
amendments will provide that:
· a waiver of either the moral right of attribution of authorship or the moral right of
integrity of authorship, or both, may relate to a specific work or film, or to works
or films of a specified description that are in existence, in the course of being
made, or about to be commenced;
· moral rights will only apply to copyright works and films made after the
introduction of the legislation;
· a screenwriter is an author of a film for the purposes of having moral rights in the
film;
· a screenwriter cannot be awarded the same damages for infringement of moral
rights in both the film and the script; and
· having executed a waiver of a moral right, an author will still be able to consent
to an act contrary to the right by a person not covered by the waiver.
In Schedule 2 of the Bill, in relation to employed journalists' copyright, the
Government amendments will:
· remove the proposed right of restraint on copying of more than 15% of a
newspaper or magazine.
In Schedule 3 of the Bill, in relation to the amendments to allow the parallel
importation of goods with copyright packaging and labelling, the Government
amendments will:
· exempt the Olympic rings symbol, which is protected by copyright from the
changes;
· align the identification of the countries of manufacture of copyright packaging
and labelling that will be able to be parallel imported with the identification of
countries in the Copyright AmendmentBill (No.2) 1997; and
· delay the commencement of the amendments in Schedule 3 until one year after
the Bill receives Royal Assent.
In Schedule 7 of the Bill, in relation to copying of works by institutions, the
Government amendment will:
· amend s. 1 35ZM of the Act, which is part of the statutory licence for educational
institutions to make copies for educational purposes to clanfy that where an
artistic work is copied along with text that accompanies the artistic work then
the remuneration now payable to the author of the text will be shared with the
visual artist.
In Schedule 11 of the Bill, in relation to the minor amendments, the Government
amendments will:
· clarify that references in the Act to broadcasts made by a holder of a licence
allocated by the Australian Broadcasting Authority under the Broadcasting
Services Act 1992 include persons authonsed to make broadcasts under class
licences determined by the Australian Broadcasting Authority under the
Broadcasting Services Act 1992; and
· insert a savings provision to ensure that copyright that subsisted in broadcasts
made before the amendments in the Bill commence continues to subsist under the
Act.
The Govenunent amendments also include a number of minor and technical
amendments to clarify and refine the operation of the provisions in the Bill.
Financial Impact
These amendments will have no direct financial impact on Commonwealth
expenditure.
NOTES ON THE AMENDMENTS
Amendment No. 1
Amendment No. 1 replaces clause 2 (Commencement) of the Bill providing that the
` Act will commence on the day on which it receives Royal Assent by a new clause with
two new subclauses to provide that some of the proposed amendments in Schedules 3
and 9, in relation to importation of goods with copyright packaging and labelling, will
now commence one year after the rest of the Act comes into force.
2. The proposed new subclause (1) provides that subject to proposed new
subclause (2), the Act commences on the day it receives Royal Assent. The new
subclause (2) provides that items 5, 7, 9 and 11 in Schedule 3 (Labelling and
packaging etc of imported goods etc) and item 1 1A in Schedule 9 (Importedcopies of
copyright material) will commence at the end of one year after the day on which the
Act receives Royal Assent. This delay of the operative provisions of Schedule 3 is to
give time for affected businesses to adjust their contracts and arrangements.
Amendment No. 2
3. Amendment No. 2 amends clause 3 (Schedule(s)) of the Bill to make it subject to
the proposed new clause 2 (Commencement), being inserted by Amendment No.1.
Clause 2 provides that the provisions in the Copyright Act 1968 are amended or
repealed as set out in the particular schedules in the Bill. This is a technical
amendment consequent upon the proposed substitution of new clause 2 of the Bill.
Amendment No.3
4. Amendment No. 3 amends the title to Schedule 1 of the Bill by omitting "of
works and directors and producers of films". The title to Schedule 1 of the Bill will
now be "Moral rights of authors". The proposed amendment to the title of Schedule 1
is a consequence of the proposed amendments to include a screenwriter as an author of
a cinematograph film in addition to the director and the producer.
Amendment No.4
5. Amendment No. 4 amends item 1 of Schedule 1 of the Bill by omitting "directors
and producers of' from the title of new Part IX of the Act. The title to the new Part IX
of the Act will now be "Moral rights of authors of literary, dramatic, musical or artistic
works and cinematograph films". The proposed amendment to the title of new Part IX
is a consequence of the proposed amendments to include a screenwriter as an author of
a cinematograph film in addition to the director and the producer.
Amendment No.5
6. Amendment No. 5 amends the new definition of "infringing article" in proposed
new s. 189 (Definitions) of item 1 of Schedule 1 of the Bill. The amendment will
define "infringing article" to mean a reproduction of, or of an adaptation of, a literary,
dramatic, musical or artistic work or a copy of a cinematograph film, being a work or
film in respect of which an author's moral right has been infringed.
7. The present definition of "infringing article" may confuse the work to be
protected with the infringing article that it attempts to define. The definition relates to
the operation of proposed new s.195AT (Infringement by importation for sale or other
dealing) and proposed new s. 19SAU (Infringement by sale and other dealings). The
amendment to the definition of "infringing article" will now distinguish between the
embodiment of a work and the work itself in relation to infringement of moral rights.
Amendment No.6
8. Amendment No. 6 amends the definition of "maker" in proposed new S. 189
(Definitions) of item 1 of Schedule 1 of the Bill. The amendment will define "maker"
in relation to a cinematograph film to mean the director, the producer and the
screenwriter of the film.
9. The new definition will affect any provision in the new Part IX that refers to the
maker of a cinematograph film to the extent that it will now include the screenwriter in
addition to the director and the producer of a film. The new definition is necessary as
a result of the amendments to include a screenwriter as an author of a cinematograph
film for the purposes of moral rights.
Amendment No.7
` 10. Amendment No. 7 inserts a new definition of "screenwriter" in proposed new
s.189 (Definitions) of item 1 of Schedule 1 of the Bill. The amendment will define
"screenwriter" in relation to a cinematograph film to mean the person who wrote the
script or screenplay of the film, as that meaning is affected by the amendment to
` proposed new s.190 (ie, Director, producer and screenwriter of cinematograph film).
The new definition will affect any provision in the new Part IX that refers to the
screenwriter of a cinematograph film.
Amendment No. 8
11. Amendment No. 8 inserts a proposed new s. 1 89A in item 1 of Schedule 1 of the
Bill to confirm that moral rights are conferred only on individuals. By implication as
corporate bodies cannot be "authors" of copyright works they do not have moral rights
under the new Part IX to be inserted in the Act.
Amendment No.9
12. Amendment No. 9 amends item 1 of Schedule 1 of the Bill by omitting "and
producer" from the title of proposed new s.190 of new Part IX of the Act and
substituting "producer and screenwriter". The title to the new s. 190 of new Part IX of
the Act will now be "Director, producer and screenwriter of cinematograph film". The
amendment to the title of new s.190 is a consequence of including a screenwriter as an
author of a cinematograph film in addition to the director and producer of a film for
the purposes of moral rights.
Amendment No. 10
13. Amendment No. 10 amends item 1 of Schedule 1 of the Bill by omitting the note
` at the end of proposed new s. 190(2) of new Part IX of the Act. A substituted note is
inserted at the end of proposed new s.190(4) by Amendment No. 12.
Amendment No. 11
· 14. Amendment No. 11 amends item 1 of Schedule 1 of the Bill by omitting new
s.190(3) of new Part IX of the Act and substituting a proposed new s.190(3). The new
substituted subsection confirms that as only individuals have moral rights, if the
producer of a film was a body corporate, the only moral rights in respect of the film
are those of the director and the screenwriter. The amendment to new s. 190(3) is a
consequence of including a screenwriter as an author of a cinematograph film in
addition to the director and producer of a film for the purposes of moral rights.
Amendment No.12
15. Amendment No. 12 amends item 1 of Schedule 1 of the Bill by inserting a
proposed new s. 190(4) of new Part IX of the Act. The new subsection (4) notes that a
reference in new Part IX of the Act to the screenwriter of a cinematograph film for
which 2 or more individuals were involved in the writing of the script or screenplay is
a reference to the principal screenwriter. A new note is also inserted at the end of new
subsection (4) which says that where there are 2 or more principal directors, 2 or more
individual principal producers, or 2 or more principal screenwriters of a film, then
ss.195AZJ, 195AZK or 195AZKA applies, as the case may be. The proposed new
note is a consequence of including a screenwriter as an author of a cinematograph film
in addition to the director and producer of a film for the purposes of moral rights.
16. The proposed new s.190(4) is similar to new s.190(1), in relation to the principal
director, and new s. 190(2) in relation to the principal producer, and its insertion is a
consequence of including a screenwriter as an author of a cinematograph film in
addition to the director and producer of a film for the purposes of moral rights.
Amendment No. 13
17. Amendment No. 13 amends item 1 of Schedule 1 of the Bill by omitting new
s. 195AE(2) and (3) (Acts of false attribution of authorship of cinematograph film) and
substituting these subsections with proposed new s.195AE(2). The new
s.195AEA(2)(a) will provide that is an act of false attribution in relation to the
director, producer or screenwriter of the film to insert or affix a person's name on the
film, or a copy of the film, in such a way as to imply falsely that the person is the
director, producer or screenwriter, as the case may be, of the film.
18. The new s.1 95AE(2)(b) will provide that is an act of false attribution in relation
to the director, producer or screenwriter of the film to deal with the film, or a copy of
the film, if a person's name has been so inserted or affixed, and the attributor knows
that the person is not the director, producer or screenwriter, as the case may be, of the
film. The new subsection s.1 95AE(2)(c) will provide that is an act of false attribution
in relation to the director, producer or screenwriter of the film to transmit the film as
being a film of which the person is the director, producer or screenwriter, as the case
may be, if the attributor knows that the person is not the director, producer or
screenwriter of the film.
` Amendment No. 14
19. Amendment No. 14 amends item 1 of Schedule 1 of the Bill by omitting
director and producer" and substituting "maker" in new s 195AG (Acts of false
attribution of authorship of altered cinematograph film). The amendment is a
consequence of including a screenwriter as an author of a cinematograph film in
addition to the director and producer of a film for the purposes of moral rights.
Amendment No. 15
20. Amendment No. 15 amends item 1 of Schedule 1 of the Bill by omitting "and in
relation to the producer" and substituting "the producer and the screenwriter" in new
s.195AG (Acts of false attribution of authorship of altered cinematograph film). The
proposed amendment is a consequence of including a screenwriter as an author of a
cinematograph film in addition to the director and producer of a film for the purposes
of moral rights.
Amendment No. 16
21. Amendment No. 16 amends item 1 of Schedule 1 of the Bill by omitting "or of a
reproduction of the work" in new s.195AJ(b) (Derogatory treatment of artistic work).
Elsewhere in Schedule 1 a reference to an artistic work is intended to include a
reference to a reproduction of the work as well as the original. To retain the reference
to a reproduction in this subsection could imply that where artistic works are referred
` to in other provisions it only means the original artistic work. The intention of the
provision as proposed to be amended is to cover both the onginal and reproductions of
the work.
Amendment No. 17
22. Amendment No. 17 amends item 1 of Schedule 1 of the Bill by omitting "or
producer" and substituting "producer or screenwriter" in new s. 195AQ(3)(h) (No
infringement of right of attribution of authorship if it was not reasonable not to
identify the author). The proposed amendment is a consequence of including a
screenwriter as an author of a cinematograph film in addition to the director and
producer of a film for the purposes of moral rights.
Amendment No. 18
23. Amendment No. 18 amends item 1 of Schedule 1 of the Bill by omitting "or
producer" and substituting "producer or screenwriter" in proposed new s. 195AR(3)(g)
(No infringement of right of integrity of authorship if derogatory treatment or other
action was reasonable). The proposed amendment is a consequence of including a
screenwriter as an author of a cinematograph film in addition to the director and
producer of a film for the purposes of moral rights.
Amendment No. 19
24. Amendment No. 19 amends item 1 of Schedule 1 of the Bill by omitting
subsection (2) of neW s.195AV (Author's consent to act or omission). At present new
s. 195AV is intended to complement new s. 195AZG (Waiver of moral rights).
However, s.195AV(2) may be too restrictive in seeking to draw a line between the
area of operation of consent and that of waiver. If under new s.1 95AZG( 1) a waiver is
limited to a person or a class of persons, new s. 195AV(2) could prevent the giving of
effective consent to the doing of acts to the work by somebody else not covered by the
waiver. This is unintended and, therefore, it is proposed to delete the subsection.
Amendment No.20
25. Amendment No. 20 amends item 1 of Schedule 1 of the Bill by inserting after
subsection (2) of new s. 195AZ (Remedies for infringement of moral rights) proposed
new ss.195AZ(2A) and 195AZ(2B). Proposed new s.195AZ(2A) provides that if an
action is brought by a screenwriter of a film, and the relief granted includes or consists
of damages, and the person has already been grantedrelief by way of damages in an
action for an infringement of his or her moral rights as an author of the dramatic work,
being the script or screenplay of the film, then the amount of any damages that would
be awarded under the subsection is to be reduced by the amount of the damages
awarded to the person for the action in relation to the dramatic work. Proposed new
s. 195AZ(2B) provides for the reverse situation where the action is being brought by
the screenwriter for an infringement of moral rights in the film script.
26. The amendment confirms that as a consequence of a screenwriter having moral
rights as an author of a film in addition to the dramatic work comprising the script or
screenplay, any damages for infringement of moral rights recovered by a screenwriter
` as an author of a film are to be taken into account in assessing damages for the same
person as author of the script of the film and vice versa.
Amendment No.21
27. Amendment No. 21 amends item 1 of Schedule 1 of the Bill by omitting "or
producer" (first occurring) and substituting "producer or screenwriter" in new
s. 195AZE(2) (Presumptions in relation to authorship of work). The amendment is a
consequence of including a screenwriter as an author of a cinematograph film in
addition to the director and producer of a film for the purposes of moral rights.
Amendment No.22
28. Amendment No. 22 amends item 1 of Schedule 1 of the Bill by omitting "or
producer" (second occurring) and substituting "producer or screenwriter" in new
s. 195AZE(2) (Presumptions in relation to authorship of work). The amendment is a
consequence of including a screenwriter as an author of a cinematograph film in
addition to the director and producer of a film for the purposes of moral rights.
Amendment No.23
29. Amendment No. 23 amends new s.195AZG(l) (Waiver of moral rights) in item 1
of Schedule 1 of the Bill by omitting "all or any of his or her moral rights" and
replacing these words with a reference to an author's "right of attribution of authorship
or his or her right of integrity of authorship, or both of those moral rights".
30. The proposed amendment confirms that the provision on waiver of moral rights
only applies to the right of attribution of authorship and the right of integrity of
authorship and not to the other moral right, namely, the right not to have authorship of
a work falsely attributed for which new Part IX provides.
Amendment No.24
31. Amendment No. 24 amends new s. 1 95AZG (Waiver of moral rights) in item 1 of
Schedule 1 of the Bill by omitting s. 1 95AZG(2) and (3) and substituting proposed new
s.195AZG(2) and (3). Proposed new s.195AZG(2) provides that subject to subsection
(3) a waiver of moral rights can relate to a specific work, or works, that exist when the
waiver takes place, or a work, or works, of a particular description that are about to be
made or are in the course of being made.
32. The intention of the amendment is to allow for a waiver to be given at the time
when a work or film is commissioned, being the same time when all other rights are
being negotiated between the parties. Proposed new s. 195AZG(3) confirms that an
employee may give a waiver in relation to all future works, or a particular work or
works in contemplation, made by that person in the course of his or her employment.
Amendment No.25
33. Amendment No. 25 inserts a proposed new s. 195AZKA in item 1 of Schedule 1
of the Bill after new s. 1 95AZK. Proposed new s. 195AZKA provides for
circumstances where a cinematograph film has more than one principal screenwriter.
Like new s.195AZJ (Cinematograph films that have more than one principal director)
and s. 195AZK (Cinematograph films that have more than one principal producer),
proposed new s. 195AZKA(2)-(4) provide that the moral rights apply to each joint
principal screenwriter of a film.
34. Under proposed new s.195AZKA(5) the consent of one such screenwriter to any
act or omission does not affect the moral rights of any other joint principal
screenwriter of the film. Similarly, under proposed new s. 195AZKA(6) a waiver by
one joint principal screenwriter of any moral right does not affect the moral rights of
any other joint principal screenwriter The amendment is a consequence of including a
screenwriter as an author of a cinematograph film in addition to the director and
producer of a film for the purposes of moral rights.
Amendment No.26
35. Amendment No. 26 omits new s. 195AZL (Application) in item 1 of Schedule 1
of the Bill and inserts a proposed new s.195AZL. Proposed new s.195AZL states that
new Part IX of the Act will apply only in relation to works and films made after the
commencement of the new Part. It also includes a note referring~ when works and
to
films are taken to be made under the Act.
Amendment No.27
36. Amendment No. 27 amends item 1 of Schedule 2 of the Bill by omitting the note
at the end of new s.35(4). The note is no longer necessary because of the proposed
` amendment to omit item 3, which inserts new s.35A (Proprietor of newspaper,
magazine or similar periodical may in certain circumstances restrain reproduction of
issue containing work subject to copyright).
Amendment No.28
37. Amendment No. 28 amends Schedule 2 of the Bill by omitting item 3. The right
of restraint in new s.35A is now considered unnecessary.
Amendment No.29
38. Amendment No. 29 amends item 2 of Schedule 3 of the Bill by omitting
paragraph (e) and subsequent words of the definition of "accessory" to be inserted in
s.10(1) of the Act and substituting proposed new paragraphs (e) (f) and (g). Proposed
new paragraph (e) refers to an "accessory" which is record embodying an instructional
sound recording, or a copy of an instructional cinematograph film, provided with the
article.
39. Proposed new paragraph (0 provides that any label, packaging or container on
which the Olympic symbol (as defined by the Olympic Insignia Protection Act 1987)
is reproduced, is not an "accessory". Proposed new paragraph (g) repeats the
exclusion from the definition of a manual sold with computer software for use in
connection with that software. The exclusion of the Olympic Symbol recognises the
special status of that symbol and the unique form of protection for it under the
Olympic Insignia Protection Act 1987.
Amendment No.30
Amendment No. 30 amends item 3 of Schedule 3 of the Bill by omitting the
definition of "non-infringing accessory" to be inserted in s. 10(1) of the Act and
40.
substituting a new definition.
41. The proposed new definition of "non-infringing accessory" alters the countries
where such non-infringing accessories may be made. To be non-infringing, the new
definition requires that the accessory be made in a country that is a party to the Berne
Convention for the Protection of Literary and Artistic Works or a country that is a
member of the World Trade Organization (WTO) and has a law that is consistent with
the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPs) in certain respects. The WTO member must have a copyright law or,
alternatively, provide for a related right in the case of sound recordings, that is
consistent with the TRIPs Agreement requirements in regard to copyright ownership
and duration and the right to control reproduction of the work, sound recording or
film. The proposed new definition retains the existing requirement that, for the
accessory to be non-infringing, the owner of the copyright or related right must have
consented to the making of the copy of the relevant work, sound recording or film
comprising or incorporated in the accessory.
42. This amendment ensures non-infringing accessories will only encompass those
made in countries providing for relevant protection of the intellectual property to a
satisfactory level. The laws of members of the Berne Convention must meet minimum
standards of copyright protection for works and films. TRIPs adopts these standards
and also prescribes standards of protection for sound recordings. As TRIPs allows
some WTO member countries to defer implementation of the TRIPs obligations, the
requirement in the definition for WTO members to meet the TRIPs standards on
ownership, duration and reproduction ensures that accessories will be confined to
copies made in those WTO countries that provide for an internationally acceptable
standard of protection of copyright and related rights.
Amendment No.31
43. Amendment No. 31 amends Schedule 3 of the Bill by inserting a proposed new
item 3A after item 3 of the Schedule. Proposed new item 3A inserts in s. 10(1) of the
Act a definition of "TRIPs Agreement" which means the agreement on Trade-Related
Aspects of Intellectual Property Rights set out in Annex 1 C to the Marrakesh
Agreement establishing the World Trade Organization. Proposed new item 3A also
inserts a note referring to where the English version of the Marrakesh Agreement can
be found.
Amendment No.32
` 44. Amendment No. 32 amends item 7 of Schedule 3 of the Bill by omitting "At the
end of Division 3 of Part III" and substituting "After section 44B". This technical
amendment is a consequence of the proposed delayed commencement of this item 7
(see proposed amendment to item 1 in Amendment No. 1).
Amendment No.33
45. Amendment No. 33 amends item 11 of Schedule 3 of the Bill by omitting "At the
end of Division 6 of Part IV" and substituting "After section 1 12B". This technical
amendment is a consequence of the proposed delayed commencement of this item 11
(see proposed amendment to item 1 in Amendment No. 1).
Amendment No.34
46. Amendment No. 34 amends Schedule 7 of the Bill by inserting after item 9,
proposed new item 9A. Proposed new item 9A inserts a new subsection (2) at the end
of s. 135ZM (Application of Division to certain illustrations). It makes provision for
the allocation of remuneration paid under Part VB of the Act in respect of a page of a
document that is: a copy of the whole or part of an article in a periodical publication;
or a copy of the whole or part of a literary or dramatic work contained in a published
anthology; or a copy of the whole or a part of a work other than an article contained in
a periodical publication; and the page copied is not an infringement of copyright under
ss.135ZJ, 135ZK or 135ZL, and it includes one or more artistic works which explain
or illustrate the article or work. In such a case, one half of the remuneration payable in
respect of the work or works copied on that page is to be paid to the owner or owners
of copyright in the artistic work, or works as the case may be, on the page.
Amendment No.35
47. Amendment No. 35 amends item 11 of Schedule 9 by omitting "44C, 1 12A or
1 12C" from new s.135(10) of the Act and substituting "or 1 12A". The effect of the
item as amended will be that Division 7 (Seizure of imported copies of copyright
material) does not apply to the importation into Australia of copies of copyright
material whose importation does not constitute an infringement of copyright because
of s.44A or s.1 12A.
Amendment No.36
48. Amendment No. 36 amends Schedule 9 of the Bill by inserting after item 11 a
proposed new item 1 1A. Proposed new item 1 1A will insert proposed new
s.135(1OA) in the Act to provide that Division 7 (Seizure of imported copies of
copyright material) does not apply to the importation into Australia of copies of
copyright material whose importation does not constitute an infringement of copyright
because of s.44C or s. 1 12C. This change, together with the amendment effected by I
Amendment No. 35, has been made to accommodate the delayed commencement of
items 7 and 9 of Schedule 3 of the Bill (see Amendment No.1).
Amendment No.37
49. Amendment No. 37 amends item 2 of Schedule 10 of the Bill by omitting
"10(4)" in new s.10(l)(i) of the Act and substituting "1OA(4)". This is a technical
amendment to rectify an error in the Bill.
Amendment No.38
50. Amendment No. 38 amends items 1 and 2 of Schedule 11 of the Bill by omitting
the items. Items 1 and 2 of the Bill are no longer necessary. Licences granted under
the Broadcasting Act 1942 that were continued in force by the Broadcasting Services
(Transitional Provisions and Consequential Amendments) Act 1992 were required to
have been renewed under the Broadcasting Services Act 1992 within 5 years of the
licence being granted. As the Broadcasting Services Act 1992 commenced in 1992,
there are no licences that were granted under the Broadcasting Act 1942 still in force.
Therefore, items 1 and 2 are no longer necessary.
Amendment No. 39
51. Amendment No. 39 amends item 6 of Schedule 11 of the Bill by omitting new
s.9 1(b) (Television broadcasts and sound broadcasts in which copyright subsists) and
substituting a proposed new s.9l(b). Proposed new s.91(b) refers to a television
broadcast, other than a broadcast transmitted for a fee payable to the person who made
the broadcast, made from a place in Australia under the authority of a licence allocated
by the Australian Broadcasting Authority under the Broadcasting Services Act 1992 or
a class licence determined by that Authority under that Act. The amendment clarifies
that th~provisions being amended include coverage of persons authorised to make
broadcasts under class licences determined by the Australian Broadcasting Authority
under the Broadcasting Services Act 1992.
Amendment No.40
52. Amendment No. 40 amends item 7 of Schedule 11 of the Bill by omitting new
paragraph 91(d) (Television broadcasts and sound broadcasts in which copyright
subsists) and substituting a proposed new paragraph (d). Proposed new paragraph (d)
refers to a sound broadcast, other than a broadcast transmitted for a fee payable to the
person who made the broadcast, made from a place in Australia under the authority of
a licence allocated by the Australian Broadcasting Authority under the Broadcasting
Services Act 1992 or a class licence determined by that Authority under that Act. The
amendment clarifies that the provisions being amended include coverage of persons
authorised to make broadcasts under class licences determined by the Australian
Broadcasting Authority under the Broadcasting Services Act 1992.
Amendments No.41 and 42
53. Amendment No. 41 amends item 9 of Schedule 11 of the Bill by omitting the
item concerning new paragraph 99(b) (Ownership of copyright in television broadcasts
and sound broadcasts) and substituting a new item 9 which adds a reference to the
allocation of licences by the Australian Broadcasting Authority.
54. Amendment No. 42 amends Schedule 11 of the Bill by inserting proposed new
item 9A. Proposed new item 9A inserts a new s.99(c) of the Act to provide that a
person who makes a sound or television broadcast under the authority of a class
licence determined by the Australian Broadcasting Authority under the Broadcasting
Services Act 1992 is the owner of any copyright subsisting in the broadcast. The
amendment clarifies that the provisions being amended include coverage of persons
authorised to make broadcasts under class licences determined by the Australian
Broadcasting Authority under the Broadcasting Services Act 1992.
Amendment No.43
55. Amendment No. 43 amends item 18 of Schedule 11 of the Bill by omitting
paragraph (b) of the definition of "transmission" to be inserted in s.135A of the Act
and substituting a new paragraph (b) which refers to a television transmission to
subscribers to a diffusion service. The intention of the amendment is to overcome an
unintended consequence in relation to the educational copying licence in Part VA of
the Act in that the present definition of "transmission" in the Bill would unjustifiably
deny remuneration to copyright owners for copying from free-to-air services when
retransmitted by cable, and to owners of copyright in sound recordings for copying
from cable transmission of their recordings.
Amendment No.44
56. Amendment No. 44 amends Schedule 11 of the Bill by inserting after item 39
proposed new item 39A. Proposed new item 39A is a technical drafting amendment to
the definition of "broadcaster" in s.152(l) of the Act.
Amendment No.45
57. Amendment No. 45 amends item 40 of Schedule 11 of the Bill by omitting the
item and substituting proposed new item 40. Proposed new item 40 repeals paragraph
(b) of the definition of "broadcaster" in s.152(l) of the Act and substitutes new
paragraphs (b) and (c). The new paragraphs refer to the holder of a licence allocated
by the Australian Broadcasting Authority under the Broadcasting Services Act 1992
and a person making a broadcast under the authority of a class licence determined by
the Australian Broadcasting Authority under the Broadcasting Services Act 1992. The
amendment clarifies that the provisions being amended include coverage of persons
authorised to make broadcasts under class licences determined by the Australian
Broadcasting Authority under the Broadcasting Services Act 1992.
Amendment No.46
58. Amendment No. 46 amends items 42 and 43 of Schedule 11 of the Bill by
omitting the items and substituting proposed new item 42. Proposed new item 42
repeals ss.152(8) and (9) of the Act and substitutes proposed new ss.152(8) and (9).
The new ss.152(8) and (9) refer to both the holder of a licence allocated by the
Australian Broadcasting Authority under the Broadcasting Services Act 1992 that
authorises the holder to broadcast radio programs and a person acting under the
authority of a class licence determined by the Australian Broadcasting Authority under
the Broadcasting Services Act 1992 to broadcast radio programs. The amendment
clarifies that the provisions as amended include coverage of persons authorised to
make broadcasts under class licences determined by the Australian Broadcasting
Authority under the Broadcasting Services Act 1992.
Amendment No.47
59. Amendment No. 47 amends item 47 of Schedule 11 of the Bill by omitting item
47 and substituting proposed new item 47. Amendment No. 47 amends s. 184(1)(f) of
the Act by omitting "by a holder of a licence or permit granted under the Broadcasting
Act 1942" and substituting "by a holder of a licence allocated by the Australian
Broadcasting Authority under the Broadcasting Services Act 1992, by a person
authorised to make the broadcasts by a class licence determined by that Authority
under that Act". The amendment clarifies that the provisions being amended include
coverage of persons authorised to make broadcasts under class licences determined by
the Australian Broadcasting Authority under the Broadcasting Services Act 1992.
Amendment No.48
60. Amendment No. 48 amends items 49 and 50 of Schedule 11 of the Bill by
omitting the items and substituting proposed new item 49. Proposed new item 49
amends s.199(7)(a) and (b) of the Act by omitting "by a holder of a licence or permit
granted under the Broadcasting Act 1942" and substituting "by a holder of a licence
allocated by the Australian Broadcasting Authority under the Broadcasting Services
Act 1992, by a person authorised to make the broadcasts by a class licence determined
by that Authority under that Act". The amendment clarifies that the provisions being
amended include coverage of persons authorised to make broadcasts under class
licences determined by the Australian Broadcasting Authority under the Broadcasting
Services Act 1992.
Amendment No.49
61. Amendment No. 49 amends Schedule ii of the Bill by adding at the end of the
Schedule a proposed new item 53 (Saving). Proposed new item 53 provides that
copyright subsistence (s.91 of the Act) and ownership (s.99 of the Act) in relation to a
television or sound broadcast before the commencement of Schedule 11 continue to
apply for the relevant copyright period as if the amendments made by Schedule 11 had
not been made.
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