Commonwealth Numbered Regulations - Explanatory Statements

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COPYRIGHT TRIBUNAL (PROCEDURE) REGULATIONS (AMENDMENTS) 1992 NO. 166

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 166

Issued by the Authority of the Attorney-General

Copyright Act 1968

Copyright Tribunal (Procedure) Regulations (Amendments)

Section 249 of the Copyright Act 1968 provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Amendments have been made to the Copyright Tribunal (Procedure) Regulations (the Regulations) to enable the operation of statutory licences covering educational copying of broadcast programs and educational photocopying, and a royalty on blank audio tapes, and to rectify certain omissions or anomalies in the Regulations.

The Copyright Amendment Act 1989 inserted Parts VA, VB and VC into the Copyright Act 1968.

Part VA (Copying of Broadcasts by Educational and Other Institutions) provides a statutory licence for educational institutions and institutions assisting intellectually handicapped persons to copy off-air all TV and radio broadcasts.

Equitable remuneration is paid to a single collecting society approved by the AttorneyGeneral (Audio-Visual Copyright Society Limited). Institutions may elect to pay for copying either by way of a per-student annual levy set after sampling of copying patterns, or by full record-keeping and payment for actual material copied. In either case, in the absence of agreement, the quantum of remuneration will be determined by the Tribunal. The Tribunal may determine different rates of payment for different institutions and different categories of student, for example a reduced levy may be fixed for external studies students.

The scheme allows further copying of copies made off-air, but does not permit any copies to be supplied to anyone for financial profit. It does not extend to copying by institutions of commercially distributed video tapes.

Sections 135H and 135J(1) of the Act provide for determination by the Tribunal, on application by either of the parties, of the amount of equitable remuneration payable to the collecting society by an administering body for the making, by or on behalf of that body, of a copy of a television broadcast, where the parties cannot agree on the amount and where assessment of the number of copies made is done respectively by keeping a full record or sampling.

Section 135J(3) of the Act provides for determination by the Tribunal, on application by either of the parties, of the sampling system to be used inter alia to assess the extent of copying where the parties cannot agree on the system to be used.

Section 153A of the Act provides that the parties to an application to the Tribunal under sections 135H or 135J(1) are the "collecting society" and the "administering body" . Both of these terms are defined in Part VA. The section also sets out matters which the Tribunal is to have regard to in making an order and provides for other matters which it may have regard to to be prescribed by regulation.

Section 153B of the Act provides that the parties to an application to the Tribunal under subsection 135J(3) are the collecting society and the administering body. The section provides for the Tribunal to make an order determining the sampling system after hearing the parties.

Part VB (Copying of Works etc by Educational and Other Institutions) provides a statutory licence which largely concerns photocopying in educational institutions. It replaces and consolidates existing provisions relating to:

•       photocopying by educational institutions.,

•       making of "talking books" and Braille, large-print and photographic versions of works by institutions assisting handicapped readers; and

•       copying and making adaptations of works or other copyright subject-matter by institutions assisting intellectually handicapped persons.

Equitable remuneration is to be paid to a collecting society representing each class of copyright material covered by the licence. The Act provides that there is to be one collecting society for any one class of copyright works able to be copied. The Attorney-General has approved Copyright Agency Limited as the collecting authority in relation to owners of copyright in works other than a work included in a sound recording and Audio-Visual Copyright Society Limited in relation to owners of copyrights in a sound recording or a cinematograph film or a work included in a sound recording or a cinematograph film.

Institutions may elect to pay for copying either by way of a per-student annual levy set after sampling of copying patterns, or by full record-keeping and payment for actual material copied. In either case, in the absence of agreement, the quantum of remuneration will be determined by the Tribunal.

Subsections 135ZV(1), 135ZW(1) and 135ZW(3) of the Act are in sim liar terms to section 135H, subsections 135J(1) and 135J(3). Section 153C applies to applications to the Tribunal under section 135ZV and subsection 135ZW(1) and is in similar terms to section 153A. Section 153D applies to applications to the Tribunal under subsection 135ZW(3) and is in similar terms to section 15313.

Part VC (Use of Blank Tapes for Private and Domestic Copying) provides for a royalty on blank audio tapes in return for legitimising home-taping of music. Part VC will only become operative when the Attorney-General has approved a collecting society and the Tribunal has determined the amount of royalty payable.

The Attorney-General has not yet approved a collecting society for the purposes of the blank tape royalty scheme.

The royalty payable on blank tapes is based on a rate per minute of normal playing time determined by the Tribunal. In determining the rate, the Tribunal must hear arguments from any interested parties, for example the collecting society (representing copyright owners), blank tape suppliers and consumer groups.

Section 153E of the Act provides for an application to be made to the Tribunal for an order determining, or making provision for determining, the amount per minute of normal playing time of a blank tape that is payable under Part VC by way of royalty for the blank tape.

In addition the regulations rectify certain omissions or anomalies in the regulations including:

•       enabling the Secretary of the Tribunal to decide on the number of copies of a document to be filed with him and to request further copies of documents from a party; and

•       enabling directions as to procedure to be given by the Tribunal in relation to the hearing of a matter.

Section 166 of the Act provides that provision may be made in the regulations inter alia for or in relation to the procedure in connection with the making of references and applications to the Tribunal and the regulation of proceedings before the Tribunal.

Details of the Regulations are at Attachment A.

ATTACHMENT A

COPYRIGHT TRIBUNAL (PROCEDURE) REGULATION (AMENDMENT)

NOTES ON CLAUSES

Regulation 1: Amendment

This regulation provides that the Copyright Tribunal (Procedure) Regulations are amended as set out in the Regulations.

Regulation 2: Filing of documents

This regulation amends regulation 7 of the Regulations. As previously worded subregulation 7(5) allowed the President of the Copyright Tribunal to direct the number of copies of a specified class of documents to be lodged. In the absence of such a direction the Secretary to the Tribunal had to spend considerable time photocopying numerous documents, for example for each member of a three person Tribunal. It was considered appropriate and consistent with the other parts of regulation 7 to allow the Secretary, rather than the President, to determine the number of copies to be lodged and to permit that determination to be made either generally or in respect of particular documents or a particular class of documents. The amendments to regulation 7 permit this.

Regulation 3: Advertising of applications and references

Regulation 18 requires certain applications and references to the Tribunal to be advertised in newspapers in each State within 10 days of filing. Certain applications (listed in subregulation 18(4)) are excluded from this requirement. The rational for inclusion or exclusion appears to be as follows

•       where (as for example in the case of the mechanical royalty - section 153) the provision conferring jurisdiction on the Tribunal exhaustively specifies the parties, there is no requirement to advertise. The new sections 153A, 153B, 153C and 153D fail into this category and are therefore listed in subregulation 18(4) as exempt. Instead subregulation 17(3) requires the person making the application or reference to serve notice on the other party or parties.

•       where (as in the case of the broadcasting of sound recordings - section 152; or references in relation to licence schemes - sections 154-156) the provision conferring Tribunal jurisdiction permits joinder of any additional parties with a "substantial interest" in the matter, advertising is required. The new section 153E falls into this category and is therefore not listed as exempt from advertising.

Section 149A covers applications to the Tribunal under various statutory licences for educational institutions and the handicapped. Although the parties are determined at the time of making of an application, subregulation 18(4) does not exempt the applicant from the requirement to advertise. This appears to be an oversight as there seems no good reason to require advertising in these cases. Section 149A is therefore included in subregulation 18(4) as exempt from advertising.

Sections 159A and 159B have been repealed and therefore the references in subregulation 18(4) to subsections 159A(1) and 159B(1) have been omitted.

Regulation 4:       Matters to be included in application under section 53B(11) Matters to be included in application under section 47A(8)

Regulation 19A sets out matters to be included in an application to the Tribunal under subsection 5313(11). In consequence of the repeal of section 53B, regulation 19A is omitted.

There is no existing regulation specifying matters to be included in an application under section 47A (sound broadcasts by holders of print-handicapped radio licences). This appears to be an oversight and is rectified in the amended regulation.

Regulation 5: Matters to be included in application under section 53D(10)

Regulation 19B sets out matters to be included in an application to the Tribunal under subsection 53D(10). In consequence of the repeal of section 53D, regulation 19B is omitted.

Regulation 6: New regulations 23A, 23B, 23C, 23D, 23E and 23F

New regulations have been made to prescribe matters to be included in applications to the Tribunal under new provisions of the Act dealing with educational broadcast copying licence (section 153A which refers to subsections 135H(1) and 135J(1); section 153B which refers to section 135J(3)) and the blank tape royalty scheme (section 1531E(2)). As regards the revised educational photocopying scheme, the new provisions of the Act require amended regulations (section 153C which refers to subsections 135ZV(1) and 135ZW(1); s.153D which refers to subsection 135ZW(3)).

Regulation 7: New Regulations 25A, 25B and 25C

Section 153A deals with the determination by the Tribunal of the amount of equitable remuneration payable for making copies of broadcasts. Subsection 153A(3) provides that in making an order the Tribunal shall have regard to certain specified matters and "may have regard to such other matters (if any) as are prescribed". These are prescribed in regulation 25A.

Section 153C deals with the determination by the Tribunal of the amount of equitable remuneration payable to a collecting society by an administering body for making licensed copies. Subsection 153C(3) provides that in making an order the Tribunal "may have regard to such matters (if any) as are prescribed". These are prescribed in regulation 25B.

Matters to be included in an application under section 1531E(2) are set out in regulation 25C.

Regulation 8: Applications -under section 159A(1)

Regulation 33A sets out matters to be included in an application to the Tribunal under subsection 159A(1). In consequence of the repeal of section 159A, regulation 33A is omitted.

Regulation 9: Applications under section 159B(1)

Regulation 33B sets out matters to be included in an application to the Tribunal under subsection 159B(1). In consequence of the repeal of section 159B, regulation 33B is omitted.

Regulation 10: Application to be made a party to a proceeding

Regulation 34 which covers all sections currently in Part VI, Division 3 of the Act (inquiries, applications, references to the Tribunal) and which includes provision for joinder of parties has been amended to include a reference to the new section 153E.

Regulation 11: Directions as to procedure

Section 164 of the Act provides that in proceedings before the Tribunal the procedure it adopts is within its discretion. It is thought appropriate to make clear that the Tribunal does have the necessary power to make directions as to the procedure to be followed in a matter. The regulation has been included to do this.

Regulation 12: Secretary may request further copies of documents

New regulation 37A ties in with proposed subregulations 7(5), 7(6) and 7(7) and makes it clear that the Secretary to the Tribunal may request further copies of documents at any stage prior to the hearing once there has been a determination of the number of members constituting the Tribunal for the hearing.


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