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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION AND
OTHER LEGISLATION AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Sport, Senator the Hon Richard Colbeck)
MAJOR SPORTING EVENTS (INDICIA AND IMAGES)
PROTECTION AND OTHER LEGISLATION AMENDMENT BILL 2021
OUTLINE
The Major Sporting Events (Indicia and Images) Protection and Other Legislation
Amendment Bill 2021 amends the Major Sporting Events (Indicia and Images)
Protection Act 2014 to provide protection against ambush marketing by association
for the Fédération Internationale de Football Association (FIFA) Women's World
Cup Australia New Zealand 2023 (FIFA Women's World Cup) and International
Cricket Council (ICC) T20 World Cup 2022 (T20 World Cup). The Bill removes the
historical Schedule related to the Gold Coast 2018 Commonwealth Games as this
Schedule has ceased to have effect.
The Bill also makes a minor and technical amendment to the Sport Integrity Australia
Act 2020 (SIA Act) to correct an erroneous reference to an article of the World
Anti-Doping Code in the SIA Act's definition of ineligibility.
Rights protection is a critical element of hosting major sporting events to protect the
commercial rights and investment of event owners and their sponsors. Ambush
marketing by association is the unauthorised commercial use of event indicia and
images to suggest a formal association with that event. Ambush marketing can
confuse the public as to the identity of the real event sponsors.
The Government is committed to supporting the staging of the FIFA Women's World
Cup and T20 World Cup (the events) in Australia. The Bill provides protection for the
events that is similar to the protection provided for the Women's T20 World Cup
2020, Gold Coast 2018 Commonwealth Games, AFC Asian Cup 2015 and ICC
Cricket World Cup 2015.
The FIFA Women's World Cup, jointly hosted by Australia and New Zealand, will
comprise matches held across five Australian cities between July - August 2023. The
T20 World Cup is a men's cricket tournament to be held in Australia between October
and November 2022. The Bill extends protection to the events' indicia and images in
the lead up to, during, and in the immediate aftermath of the FIFA Women's World
Cup and T20 World Cup.
Protection of the events' indicia and images during this period will enable both
tournament organisers to protect existing sponsors, attract additional sponsors, and
achieve its sponsorship revenue targets. In turn, this will reduce the financial impact
on government.
Financial Impact Statement
The Bill is not expected to have any financial impact on Commonwealth expenditure
or revenue.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION AND
OTHER LEGISLATION AMENDMENT BILL 2021
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill will amend the Major Sporting Events (Indicia and Images) Protection Act
2014 (Act) to provide protection against ambush marketing by association for the
FIFA Women's World Cup and ICC T20 World Cup (the events), giving effect to
commitments made by the Australian Government. Ambush marketing by association
is the use of imagery or terminology to create an illusion that a non-sponsor has links
to an event.
The Bill will also remove the historical schedule related to the Gold Coast 2018
Commonwealth Games, and make a minor and technical amendment to the Sport
Integrity Australia Act 2020 (SIA Act) to correct an erroneous reference to an article
of the World Anti-Doping Code.
Event owners typically own the intellectual property and commercial rights relating to
an event. FIFA is progressing the establishment of its own entity to deliver the FIFA
Women's World Cup, in consultation with Football Australia Limited. FIFA as the
international governing body for football is the FIFA Women's World Cup 2023
event owner.
Cricket Australia established T20 World Cup 2020 Ltd. to deliver the T20 World Cup
in Australia. ICC Business Corporation FZ LLC is a wholly owned subsidiary of the
ICC granted staging rights by the ICC for T20 World Cup. The ICC, as the
international governing body for cricket, is the T20 World Cup event owner.
Human rights implications
The Bill engages the following human rights:
the right to enjoy and benefit from culture in article 15(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR);
the right to freedom of expression in article 19(2) of the International
Covenant on Civil and Political Rights (ICCPR);
the right to protection against arbitrary and unlawful interferences with privacy
in article 17 of the ICCPR; and
fair trial and fair hearing rights in article 14(1) of the ICCPR.
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The right to enjoy and benefit from culture
Article 15(1)(a) of the ICESCR recognises the right of everyone to take part in
cultural life. According to the United Nations Committee on Economic, Social and
Cultural Rights, the right to culture includes sports and games. This right
encompasses access to culture, which includes the availability of a cultural
infrastructure, such as places for recreation and sports.
Football Australia Limited and Cricket Australia are actively engaged in a range of
activities that will provide benefit to the Australian public, as it will provide the public
with greater access to such events, as well as provide opportunities for Australian
sportspeople to compete in top-level international tournaments in front of their home
crowds. Activities will include but not be limited to:
Promotion of participation at both recreational and elite levels, including
initiatives aimed at the inclusion of minority groups, Indigenous peoples and
women at the grassroots level;
Improved access to cultural infrastructure for the community, including ethnic
groups, minorities, Indigenous peoples, persons with disabilities and women
through the upgrading and building of sports facilities;
Creation of further opportunities to host similar major sporting events in the
future by building upon Australia's reputation as a host of successful major
sporting events, thus providing further opportunities for Australians to access
similar sporting events;
Community engagement through education programs and multicultural events;
and
Strengthening cultural ties between Australia and participating nations, which
will provide opportunities for tourism, trade and the further mutual
development of cultural understanding.
Revenue generated through the protection of the events indicia and images will be key
to ensuring Football Australia Limited and FIFA, and Cricket Australia and T20
World Cup 2020 Ltd. can afford to host the events, as well as providing cultural and
other legacies such as those outlined above. Accordingly, a person's right to enjoy and
benefit from culture is promoted through Football Australia Limited delivering the
FIFA Women's World Cup and Cricket Australia delivering the T20 World Cup and
the cultural ancillary activities and outcomes detailed above.
Right to freedom of expression
As the Bill primarily seeks to limit the ability of non-authorised users to use protected
the events indicia and images in their publications, broadcasts, displays or
promotions, the Bill engages and limits the right to freedom of expression in article 19
of the ICCPR. The right to freedom of expression is not an absolute right and may be
permissibly limited for a number of reasons, including where it is necessary for the
protection of the rights and freedoms of others (article 19(3)). The proposed limitation
will restrict the use of the protected FIFA Women's World Cup and T20 World Cup
indicia and images from the day after the amendment Act receives the Royal Assent
until 13 November 2023 for the T20 World Cup, and 31 December 2024 for the FIFA
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Women's World Cup. This limitation is necessary to promote the rights of people to
access culture by ensuring that sufficient revenue can be raised to stage the events,
including through sponsorship and the commercial use of the indicia and images.
The Major Sporting Events Act contains remedies for using the protected indicia or
images, which include the ability to seek injunctions, damages, corrective
advertisement and the seizure of goods. It also provides limited exemptions for certain
third parties from prohibitions against the use of certain indicia and images where the
use is for the purpose of the provision of information, or the purpose of criticism or
review in certain cases. It does this by balancing a commercial use test at section 12
with an exemption at section 14. For a breach to occur, it would need to be considered
that the images and indicia were applied by the user for the primary purpose of
advertising or promoting or enhancing demand for the user's goods or services. That
is, the primary purpose would not be for the purposes of genuine criticism, review or
the provision of information.
The Major Sporting Events Act also provides that the court may make an order
requiring a person to publish at their own expense a corrective advertisement, if the
court is satisfied that the person has used a protected indicia or image without
authorisation (section 47). Remedies are available to the authorising bodies under the
legislation as a means of protecting their commercial interests. Without sponsorship
the cost of staging major international sporting events would rely heavily on
government support.
The objective of the corrective advertisement mechanism is to reverse the harm done
by the false impression that may be created by the unauthorised use of the event
indicia and images. Although this may involve a restriction on the unauthorised user's
freedom of expression, this is considered justifiable; both to alert the community to
the unauthorised use and to preserve the protection of the authorised user's rights that
the Major Sporting Events Act is intended to afford. This is proportionate to the harm
created by the unauthorised use because the use of advertising is an equivalent means
of correcting the false impression created by the unauthorised use. The power to order
corrective advertising also serves to deter future contraventions and encourages
compliance.
Accordingly the limitation of a person's right to freedom of expression, including the
right not to be compelled to engage in particular forms of expression is reasonable,
necessary and proportionate to the objective of promoting the right of the Australian
public to access and benefit from the staging of major sporting events including the
FIFA Women's World Cup and T20 World Cup.
Right to protection against arbitrary and unlawful interferences with privacy
The Bill engages with the right to protection against arbitrary and unlawful
interferences with privacy in two ways:
1. seizure of imported goods; and
2. the provision of information about the importer of the seized goods by the
Comptroller-General of Customs to the Events authorising body.
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As the Major Sporting Events Act has provisions for search and seizure of imported
goods in accordance with the Trade Marks Act 1995 (Trade Marks Act) and the
Copyright Act 1968 (Copyright Act), the Bill engages and limits article 17 of ICCPR,
which prohibits arbitrary or unlawful interference with a person's privacy, family,
home or correspondence. Interferences with privacy may be permissible, provided
they are authorised by law and are not arbitrary. In order for an interference with the
right to privacy not to be 'arbitrary', the interference must be for a reason consistent
with the provisions, aims and objectives of the ICCPR and be reasonable in the
particular circumstances. The United Nations Human Rights Committee has
interpreted 'reasonableness' in this context to imply that 'any interference with privacy
must be proportional to the end sought and be necessary in the circumstances of any
given case'.
The Bill also engages the right to privacy as the Major Sporting Events Act contains
provisions to collect, use, store and share personal information. The Copyright Act
(Part V - Remedies and Offences, Division 7 - Seizure of imported copies of
copyright material) and the Trade Marks Act (Part 13 - Importation of goods
infringing Australian trade marks) contain provisions for dealing with imports that are
suspected of infringing copyright or registered trademarks. These two Acts allow
intellectual property rights owners to lodge a 'notice of objection' with the
Comptroller-General of Customs in respect of a particular copyright or trade mark.
These Acts permit the Comptroller-General of Customs to seize goods suspected of
infringing those rights for a limited period of time, to permit the intellectual property
owner to institute infringement proceedings against the importer.
If an importer wishes to reclaim goods after the end of the action period, they must
first file a claim for release. A failure to file a valid claim for release will result in the
seized goods being forfeited. The intention is that the claim form will provide
sufficient information about the importer of the goods (or their Australian agent) to
enable them to be contacted for the purposes of instituting infringement proceedings.
The Comptroller-General of Customs is authorised under the Copyright Act and the
Trade Marks Act to pass this information on to the rights owner.
Regulation 22 of the Copyright Regulations 2017 and Regulation 13.5 of the Trade
Marks Regulations 1995 prescribe the following information that must be included in
a valid claim for release:
the importer or designated owner's full name, home or business address and
address for service
- the importer or designated owner's telephone number
if the importer or designated owner's home or business address is not in
Australia:
- an address for service for the person who is the importer's agent in
Australia
- a telephone number for the person
- information showing that the person agreed to be the importer's agent
The Bill will permit this information to be shared in relation to the protected events
indicia and images. As such, it limits the right to protection from arbitrary and
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unlawful interference with privacy in Article 17 of the ICCPR. However, the
limitation is proportionate to achieving the legitimate objective of the Bill. This is
because the events intellectual property rights owners need access to this personal
information to allow them the opportunity to enforce their rights to a fair trial and fair
hearing.
Without such information, intellectual property rights owners are deprived of the
ability to enforce their legal rights in protecting the events indicia and images, which
may result in insufficient revenue being raised, thus jeopardising the ability to stage
the events. This regime provides a limited and reasonable manner of achieving this
objective, with several safeguards in place. For example, the collection and
dissemination of information will only occur in specified circumstances (where the
goods are suspected of infringing a trade mark or copyright), whereby the
Comptroller-General of Customs has the power to seize goods. The Comptroller-
General of Customs may only seize copies or goods in the circumstances specified in
section 135 of the Copyright Act and section 133 of the Trade Marks Act and
disclosure of the information in the claim for release form is limited to the intellectual
property rights owner or designated representative.
The limitations associated with the right to protection against arbitrary and unlawful
interferences with privacy through the collection, use, storage and sharing of personal
information are reasonable, necessary and proportionate to achieving the objective of
promoting fair trial and fair hearing rights.
Fair trial and fair hearing rights
The provisions permitting seizure of goods in the Copyright Act (Part V - Remedies
and Offences, Division 7 - Seizure of imported copies of copyright material) and the
Trade Marks Act (Part 13 - Importation of goods infringing Australian trade marks)
engage fair trial and fair hearing rights (Article 14(1) of ICCPR). Article 14(1)
provides that everyone is entitled to a fair and public hearing before an independent
and impartial court or tribunal in the determination of any suit at law (i.e. civil
proceedings) or criminal charge. The Trade Marks Act (Part 12 - Infringement of
Trade Marks), the Copyright Act (Part V - Remedies and Offences) and the Major
Sporting Events Act (Part 4 - Importation of goods) provide persons who believe that
their goods have been wrongly seized with civil proceedings to challenge the
intellectual property owner to reclaim their goods. These safeguards engage but do not
limit nor promote the right to a fair trial or fair hearing.
Conclusion
The Bill is compatible with human rights because it advances the protection of human
rights through promoting the right of individuals to enjoy and benefit from
participating in cultural life, and to the extent that it also limits human rights, those
limitations are reasonable, necessary and proportionate.
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MAJOR SPORTING EVENTS (INDICIA AND IMAGES)
PROTECTION AND OTHER LEGISLATION AMENDMENT BILL 2021
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Major Sporting Events
(Indicia and Images) Protection and Other Legislation Amendment Act 2021.
Clause 2 - Commencement
This clause sets out when the Act commences, which is the day after the Act receives
Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms. This is a technical provision which
gives operational effect to the amendments contained in the Schedules. Schedule 1
amends the Major Sporting Events (Indicia and Images) Protection Amendment Act
2014 (the Act).
SCHEDULE 1 -- MAIN AMENDMENTS
Major Sporting Events (Indicia and Images) Protection Act 2014
Item 1 - Section 9 (definition of event body)
This item enables additional bodies to be prescribed as 'event bodies' in the rules.
This function may be used should an 'authorising body' wish to recognise an
additional body as an 'event body' for events listed in Schedules of the Act.
Item 2 - Schedule 1
This item repeals the Schedules relating to the postponed event being the ICC Men's
T20 World Cup 2020 and a historical event being the ICC Women's T20 World Cup
2020.
This item substitutes a new Schedule 1 to provide certain intellectual property and
rights protection under this legislation for the ICC T20 World Cup 2022 as follows:
it protects the International Cricket Council Cricket Australia and T20 World
Cup 2020 Ltd.'s sponsorship revenue streams by giving maximum protection
to ICC T20 World Cup 2022 indicia and images
it protects official sponsors of the ICC T20 World Cup 2022
it prevents individuals and businesses from seeking to benefit commercially
from the unauthorised use of ICC T20 World Cup 2022 indicia
it allows third parties (like the media, sporting organisations, members of the
public and so on) to use protected terms and expressions for non-commercial
purposes (e.g. to provide information, including factual reporting in the media,
for criticism and review).
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Schedule 1 - International Cricket Council (ICC) T20 World Cup 2022
Clause 1 - ICC T20 World Cup 2022 is a major sporting event
This item identifies the men's ICC T20 World Cup 2022 tournament as a recognised
major sporting event under this legislation.
Clause 2 - Authorising body for ICC T20 World Cup 2022
This item identifies the ICC Business Corporation FZ-LLC as the authorising body
for the purposes of the ICC T20 World Cup 2022.
Clause 3 - Event bodies for ICC T20 World Cup 2022
This item identifies the key organisations that are recognised as event bodies for the
ICC T20 World Cup 2022 as;
ICC - the T20 World Cup 2022 event owner and owner of the intellectual
property rights;
ICC Business Corporation FZ-LLC - the authorising body that has been
granted staging rights for the ICC T20 World Cup 2022 by the ICC;
Cricket Australia - the national sporting organisation that has been granted the
rights to host the ICC T20 World Cup 2022 in Australia; and
T20 World Cup 2020 Ltd. - the local organising committee, which is a wholly
owned subsidiary of Cricket Australia.
Clause 4 - Protected indicia for the ICC T20 World Cup 2022
This item provides the agreed list of protected expressions covered by this legislation.
These expressions are protected regardless of whether they are used alone or they are
accompanied by any other expression, letter, number or symbol.
The agreed list has been developed in consultation with the event bodies and IP
Australia.
The rules may prescribe additional words, phrases or expressions to be added to the
schedule.
Previous experience indicates that between the Bill receiving Royal Assent and the
commencement of the event, there may be additional protections required which need
to be added promptly or when Parliament is not sitting. For example the AFC Asian
Cup 2015 was held in January 2015 and immediately prior to the event, the event
organisers requested additional protections for new phrasings including a newly
created mascot. As Parliament was not sitting, these protections were only able to be
added to the existing schedule for the event through use of the rules.
The rules will not be used to remove or limit the rights of the community to freedom
of expression, particularly in relation to words that have passed into common usage
Clause 5 - When protected indicia and images relate to an event body for the
ICC T20 World Cup 2022
This item states that protected indicia and images for the ICC T20 World Cup 2022
relate to each event body, except as prescribed by the rules. If they relate to any other
body, this will also be prescribed in the rules.
8
This may become necessary should, ahead of the event, the ICC, Cricket Australia or
T20 World Cup 2020 Ltd. agree to add additional event bodies that the protected
indicia and images for the ICC T20 World Cup 2022 relate to.
Clause 6 - Protection period for ICC T20 World Cup 2022
This item identifies the period for which the protection is provided for the protected
indicia and images. The protection commences on commencement of the Act and
ceases to have effect after 13 November 2023 or earlier as prescribed by the rules.
This may become necessary should the ICC remove hosting rights for the event from
Australia or should unforeseeable date changes to the event occur.
Item 3 - Schedule 3
This item repeals the Schedule relating to the historical event of the Gold Coast 2018
Commonwealth Games and substitutes a new Schedule 2 to provide certain
intellectual property and rights protection under this legislation for the Fédération
Internationale de Football Association (FIFA) Women's World Cup Australia New
Zealand 2023 as follows:
it protects FIFA and Football Australia Limited's sponsorship revenue streams
by giving maximum protection to FIFA Women's World Cup Australia New
Zealand 2023 indicia and images
it protects official sponsors of the FIFA Women's World Cup Australia New
Zealand 2023
it prevents individuals and businesses from seeking to benefit commercially
from the unauthorised use of FIFA Women's World Cup Australia New
Zealand 2023 indicia
it allows third parties (like the media, sporting organisations, members of the
public and so on) to use protected terms and expressions for non-commercial
purposes (e.g. to provide information, including factual reporting in the media,
for criticism and review).
Schedule 2 - Federation Internationale de Football Association (FIFA) Women's
World Cup Australia New Zealand 2023
Clause 1 -FIFA Women's World Cup Australia New Zealand 2023 is a major
sporting event
This item identifies the FIFA Women's World Cup Australia New Zealand 2023 as a
recognised major sporting event under this legislation.
Clause 2 - Authorising body for FIFA Women's World Cup Australia New
Zealand 2023
This item identifies the Fédération Internationale de Football Association (FIFA) as
the authorising body for the purposes of the FIFA Women's World Cup Australia
New Zealand 2023.
Clause 3 - Event bodies for FIFA Women's World Cup Australia New Zealand
2023
This item identifies the key organisations that are recognised as event bodies for the
FIFA Women's World Cup Australia New Zealand 2023 as;
9
Fédération Internationale de Football Association (FIFA) - the FIFA
Women's World Cup Australia New Zealand 2023 event owner and owner of
the intellectual property rights;
Football Australia Limited - the national sporting organisation that has been
granted the rights to host the FIFA Women's World Cup Australia New
Zealand 2023 in Australia; and
a body that is prescribed by the rules.
Clause 4 - Protected indicia for the FIFA Women's World Cup Australia New
Zealand 2023
This item provides the agreed list of protected expressions covered by this legislation.
These expressions are protected regardless of whether they are used alone or they are
accompanied by any other expression, letter, number or symbol.
The agreed list has been developed in consultation with the event bodies and IP
Australia.
The rules may prescribe additional words, phrases or expressions to be added to the
schedule.
Previous experience indicates that between the Bill receiving Royal Assent and the
commencement of the event, there may be additional protections required which need
to be added promptly or when Parliament is not sitting. For example the AFC Asian
Cup 2015 was held in January 2015 and immediately prior to the event, the event
organisers requested additional protections for new phrasings including a newly
created mascot. As Parliament was not sitting, these protections were only able to be
added to the existing schedule for the event through use of the rules.
The rules will not be used to remove or limit the rights of the community to freedom
of expression, particularly in relation to words that have passed into common usage
Clause 5 - When protected indicia and images relate to an event body for the
Fédération Internationale de Football Association (FIFA) Women's World Cup
Australia New Zealand 2023
This item states that protected indicia and images for the FIFA Women's World Cup
Australia New Zealand 2023 relate to each event body, except as prescribed by the
rules. If they relate to any other body, this will also be prescribed in the rules.
This may become necessary should, ahead of the event, FIFA agree to add further
event bodies that the protected indicia and images for the FIFA Women's World Cup
Australia New Zealand 2023 relate to.
Clause 6 - Protection period FIFA Women's World Cup Australia New Zealand
2023
This item identifies the period for which the protection is provided for the protected
indicia and images. The protection commences on commencement of the Act and
ceases to have effect after 31 December 2024 or earlier as prescribed by the rules.
This may become necessary should the FIFA remove hosting rights for the event from
Australia or should unforeseeable date changes to the event occur.
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Item 4 - Transitional provision--ICC T20 World Cup 2020
This item ensures that, despite the Bill repealing existing Schedule 1 of the Act,
Schedule 1, as in force immediately before the commencement of this item, continues
to apply on and after that commencement in relation to the ICC T20 World Cup 2020.
SCHEDULE 2 -- OTHER AMENDMENTS
Sport Integrity Australia Act 2020
Item 1 - Section 4 (definition of ineligibility)
This item corrects an erroneous reference in the SIA Act to an article of the World
Anti-Doping Code (Code). The SIA Act still refers to old article 10.12.1 of the Code
instead of article 10.14. The Code's article numbering changed due to wide-ranging
revisions to the Code that commenced from 1 January 2021.
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