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Media Release 088/2006

14 May 2006

MAJOR COPYRIGHT REFORMS STRIKE BALANCE

Attorney-General Philip Ruddock today announced significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.

“These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for the many Australians who enjoy their creative works,” Mr Ruddock said.

The changes will, for the first time:

• Make it legal for people to tape their favourite TV or radio program and play it at another time


• Legalise ‘format shifting’ of material such as music, newspapers, books – meaning people can put their CD collection onto IPods or MP3 players


• Provide new exceptions allowing schools, universities, libraries and other cultural institutions to use copyright material for non-commercial purposes


• Provide new exceptions for people with disabilities to allow access to copyright materials


• Allow the use of copyright material for parody or satire


• Provide new enforcement measures to combat copyright piracy including onthe-spot fines, proceeds of crime remedies, a change in presumptions in litigation to make it easier to establish copyright piracy

Research also will be undertaken by the Australian Institute of Criminology on the nature and the extent of piracy and counterfeiting in Australia and how best to respond to the problem.

“Copyright is important and should be respected,” Mr Ruddock said. “That is why the Government is updating our laws to keep pace with technology.”

“Everyday consumers shouldn’t be treated like copyright pirates. Copyright pirates should be not treated like everyday consumers.

The Government also has agreed to remove the statutory cap on licence fees paid by radio broadcasters for using sound recordings. There is no reason why a statute should determine what the rate should be for music played on the radio. [This will not impact on community broadcasters.]

A draft exposure Bill including these and other reforms will be released in the near future to enable further consultation with stakeholders.

* A full statement and Consumer Q&A explaining the changes in more detail are attached.

Media Contact: Charlie McKillop Attorney's Office (02) 6277 7300

www.law.gov.au/ag

An Overview of Major Reforms to Australia’s Copyright Regime:
Fairer for Users and Tougher on Pirates

The Government is introducing important reforms to Australia’s copyright regime. Everyday Australians who want to use technology to enjoy copyright material they have legally obtained in ways that do not harm copyright owners should not be treated as infringers of copyright. But stricter measures need to be taken against pirates who steal for profit or cause significant losses by distributing other people’s property.

Getting tougher on pirates, while making the law fairer for consumers and our educational and cultural institutions, are the dual goals driving the Government’s reform agenda.

The copyright reforms have been guided by the following principles:

• The need for copyright to keep pace with developments in technology and rapidly changing consumer behaviour


• Recognising reasonable consumer use of technology to enjoy copyright material – Australian consumers should not be in a significantly worse position than consumers in similar countries


• Reforms should not unreasonably harm or discourage the development of new digital markets by copyright owners


• Australia has a unique regime that should be maintained. In particular, stakeholders support the fair dealing regime and do not want to replace it with a US style fair use regime


• Copyright laws should not be brought into disrepute with technical and out of date provisions


• Copyright piracy is serious and is becoming easier. The law needs to be constantly updated to tackle piracy


• Copyright industries are important and need to be supported It is important to get the balance right between copyright owners and users in developing the legislation. Stakeholders will be consulted on an exposure draft Bill prior to introducing these reforms in to Parliament.

In addition to measures outlined in this statement, the Bill will:

• extend the jurisdiction of the Copyright Tribunal,


• repeal of the legislative cap on the fees paid by radio broadcasters for playing sound recordings, and


• create new offences for pay TV piracy.

There will be separate legislation this year dealing with Australia’s remaining obligations under the Australia-United States Free Trade Agreement concerning the liability regime for circumvention of technological protection measures. This issue is under active consideration by the Government.

New exceptions for private use

Two new exceptions will be introduced to allow people more flexibility in using technology to enjoy copyright material they have legitimately purchased or accessed for private use.

The first private use exception will allow consumers to record most television and radio programs to view or listen to once at a later time (known as ‘time-shifting’). This exception will not allow a recording to be used over and over again or to be distributed by others.

The second exception will permit a person who has purchased a legitimate copy of some categories of copyright material to make a copy in a different format. In particular, this exception will allow individuals to store their personal music collection recorded on CDs, audio tapes or vinyl records in the memory of an MP3 player or home entertainment personal computer. It will also allow people to scan an article from a newspaper they have purchased to save on their computer (although they will not be able to upload it onto the internet). People also will be able to dub their old VHS cassettes onto a DVD.

The Government is mindful consumers may want to use technology to copy audiovisual material (eg. DVDs they have bought) to other devices as well. The Government will monitor the implementation of the scope of the format shifting
exception to review in two years’ time, whether the scope can be expanded to digital audio-visual materials in a way which complies with our international obligations.

New flexible dealing exception

The present exceptions and statutory licences that allow copyright material to be used for specific purposes benefiting the wider public interest will be strengthened. The Government has agreed to include a new flexible dealing exception that will allow for:

• non-commercial uses by libraries, museums and archives (eg. this may allow a museum to includes extracts of historical documents in materials for visitors);


• non-commercial uses by educational institutions for the purpose of teaching (eg. this may allow a school to put an out-of-date VHS documentary onto DVD);


• non-commercial uses for the benefit of people with disabilities (eg. this may allow a person with a print disability to convert a book they own into accessible text); and


• parody and satire.

To avoid confusion, the new extended dealing exception will not apply to uses where an existing exception or statutory licence already operates. Any new use falling within this exception must comply with the standards in Australia’s international treaty obligations.

Reforms arising from Digital Agenda Review

Amendments also will be made as a result of the Government’s review of the 2001 Digital Agenda copyright reforms. Now completed, the review included consideration of the recommendations made by Phillips Fox in its 2004 report. The Government’s response is available on www.ag.gov.au

Most of the reforms will allow libraries and archives to better assist their users in the online environment.

The statutory licences will also be updated to better reflect the needs of educational institutions and copyright owners when dealing with online material. For example, the status of temporarily cached copies of materials used by educational institutions and the use of distributed technologies for classroom teaching will be clarified.

The scope of the communication right will also be clarified to overcome any doubt that Internet browsing is not part of the communication right. The Act will also be clarified to confirm statutory licences do not override the operation of other existing exceptions in the Act including those allowing temporary copies to be made in the
course of a communication.

There will also be a new exception for national cultural institutions to be able to more effectively preserve and provide public access to items in their collections of historical and cultural significance to Australia for future generations without
breaching copyright.

Removal of licence fee cap for playing sound recordings on radio

After an open public consultation process, the Government has agreed to remove the legislative cap on copyright licence fees paid by radio broadcasters for playing sound recordings. The one per cent cap was adopted in 1968 to protect radio broadcasters because they faced special economic difficulties at that time. Sound recording owners (mainly record companies and artists) and radio broadcasters, who operate in a profitable and robust industry, should be able to negotiate a market rate without legislative intervention. If they can’t agree on fees, they can put their case to the independent Copyright Tribunal, like any other copyright owners and users.

Strengthening copyright enforcement

The Australian Government is committed to tackling copyright piracy. The Government regards this activity as stealing.

The Government introduced significant laws in 2000 and 2005 targeting copyright piracy. Recent court cases have shown these to be effective. However, the Government is concerned piracy rates in Australia and overseas appear to be on the rise and causing substantial damage to copyright industries. As technological advances have made it easier to commit copyright piracy and on even larger scales than ever before, copyright owners and law enforcement agencies needa stronger, up-to-date and user-friendly measures to combat this problem.

The Government will introduce a range of new measures to tackle piracy. These measures will support Australian and international creators and distributors, including small businesses such as cinema operators and video shops.

The Government expects industry will continue to develop online distribution models of copyright material to satisfy increasing consumer demand for music, films and other copyright products in Australia. Providing a strong regime of enforcement gives copyright owners the protection and confidence to develop online distribution models.

Legislative reform to tackle piracy

The legislative measures will provide a range of enforcement options for the police to use in tackling piracy. For the first time, they will be able to issue on-the-spot fines and access and recover profits made by copyright pirates.

Revised presumptions

The Government will make it easier for copyright owners and prosecutors to prove ownership and subsistence of copyright. This will make it harder for copyright pirates to frustrate proceedings in court.

For films, the Government will introduce an evidential presumption in civil cases that recognises the worldwide labelling practices of commercially released films. This will make it easier for copyright owners to prove their ownership of such films.

Tackling large scale Internet piracy

Copyright owners are being severely disadvantaged by pirates through the thousands of infringements that occur regularly on websites and through peer-to-peer file sharing.

The Government will address large-scale Internet piracy such as this by giving a court additional power to award larger damages payouts or other remedies. This will apply where there have been multiple acts of infringement, but where it may not be practical for the copyright owner to prove every single act of infringement.

Definition of ‘article’

The Government will make it clear civil infringement proceedings will apply to copyright pirates who make electronic reproductions or copies of copyright material. This will address concerns arising from recent cases that have considered the issue of electronic copies of copyright material.

Pay TV piracy

As announced last year, dishonestly accessing pay TV services will be criminalised. Under the new measures, it will also be an offence for a pay TV subscriber to distribute a subscription broadcast to other premises or for a subscriber to use the broadcast for commercial purposes if the appropriate subscription fee has not been paid.

Research into piracy

To help deal with the evolving challenge of piracy and counterfeiting, the Government has commissioned the Australian Institute of Criminology (AIC) to undertake research on the nature and extent of piracy and counterfeiting in Australia. The research will also identify options for the Government’s response to piracy and counterfeiting in the future.

The Government is also concerned about reports of organised crime involvement in piracy and counterfeiting. It has taken steps to refer this issue to the board of the Australian Crime Commission (ACC) for its consideration.

Public awareness/education about piracy

The Government supports industry initiatives to raise the profile of copyright enforcement issues by ensuring information about IP rights is published on all relevant government websites. For example, information on pirated and counterfeit material was included in the latest edition of Hints for Australian Travellers.

Law Enforcement Coordination to fight piracy

The Government will continue to promote cooperation between law enforcement agencies, the States and industry to tackle the problem of copyright piracy. State police have a role in investigating copyright piracy and the Australian Government will continue to work with them on this.

The Government has set up an Interdepartmental Committee on Enforcement to consider intellectual property enforcement issues to encourage closer cooperation between Australian Government agencies, Federal and State law enforcement bodies, Customs and industry through the work of the Intellectual Property Enforcement Consultative Group. A proposal to establish a law enforcement body based on a United States model that would specialise in investigating Internet piracy is also being considered.

Stopping pirate goods coming into the country

The Government will amend the Commerce (Trade Descriptions) Act 1905 to make it easier for Customs to seize an imported article containing a false trade description without a warrant. This will be in addition to the authority Customs officers have to seize articles that are the subject of a notice of objection.

International developments on piracy

Australia needs it neighbours to get tough on piracy. The Government is working to promote strong copyright enforcement measures through international forums and in Free Trade Agreements.

Changes to the Copyright Act – what do they mean for me?

The Government is reforming the Copyright Act. The following is a guide only on how the new reforms are intended to apply. The final form of these changes will depend on the specific amendments approved by the Parliament.

Definitions:

Format-shifting means copying material from one format to another. Formatshifting may be done to take advantage of new technology (eg. dubbing a video tape to DVD) or to enjoy the material in different locations (eg. transferring music from CDs to a portable MP3 player).

Time-shifting means recording a TV or radio program for viewing or listening at a later time.

When we refer to copying we generally mean making a copy in the same format as the original.

Recording television and radio for a later time

1. Does this mean I can record my favourite television or radio program
   to enjoy later?
   
   Yes. For the first time you will be able to record most television or radio program at home to enjoy at a later time. This will allow you to watch or listen to a program as it was made available to the public at the time of the original broadcast.
   
   
2. How long can I keep the recording?
   
   The recording must be deleted after one use. It will not be possible to use the recording over and over again.



3. Can I make a collection of copied television and radio programs?
   
   No. You will not be able to burn a collection (or library) of your favourite programs on DVD or CD to keep. (It will be permitted to record a program on DVD or CD but only temporarily until you watch or listen to it for the first time.)



4. What can I do with recorded program?
   
   You can watch or listen to the recording with your family or friends. It will not be permitted to sell or hire a recording or to play it at school or work or in any kind of public audience.



5. Can I give a recording I have made to a friend?
   
   No. A recording is for the personal use of the person who made it. You can invite a friend over to watch or listen to your recording but you can’t lend or give it to a friend to take home with them.



6. Can I share a recording over the Internet?
   
   No. Uploading the recording to the Internet to share with others would continue to be subject to civil and criminal liability.



7. Can I record a program from pay-television?
   
   Yes, if you have paid the subscription fee to watch the program.

Copying music in different formats

1. Will I be able to copy my music collection?
   
   Yes. You can format-shift your music collection from CDs, audio tapes and vinyl records to devices such as an MP3 player, X-Box 360 or home entertainment PC, but only if the original is a legitimate copy that you own and you format-shift for your personal use in a different audio format.
   
   
2. Can I make a compilation CD by copying tracks from CDs that I own to a blank CD?
   
   Yes, if you copy the tracks in a different format to the original, such as making a compilation CD in MP3 format.
   
   
3. Can I copy a music download to a CD or MP3 player?
   
   Yes, if you have purchased a legitimate copy and it is permitted by the purchase agreement.
   
   
4. Will I be able to share my music collection with a friend?
   
   No. You will not be able to sell, loan or give away any format-shift copy you make in a different format, but a friend can listen to your music with you.
   
   
5. Can someone else make a copy in a different format for me?
   
   No. A format-shift copy must be made by the owner of the original copy. It will not be possible for a business to make copies for a customer.
   
   
6. Can I make a ‘back-up’ copy of a CD in case the original is lost or damaged?
   
   No. A format-shift copy must be in a different audio format to the original.
   
   
7. Can I sell or give away my MP3 music player?
   
   Yes, but you will need to delete any format-shift copy you have stored in the MP3 music player before it is sold or given away.
   
   
8. Can I upload a copy of a song to the Internet?
   
   No, this would continue to be against the law.
   
   
9. What if my CD has copy protection applied to it?
   
   The Government is still considering this issue of copy protection.
   

Format-shifting of other material

1. Will I be able to format-shift other kinds of copyright material as well as sound recordings?
   
   Yes. You will also be able to format-shift copy some other copyright material such as books, newspapers, magazines, video tapes and photographs.
   
   
2. Will conditions apply to copying these other kinds of material?
   
   Yes. In general, the same conditions will apply as for format-shifting music (see above). For example, the original will need to be a legitimate copy that you own and the copy made for your personal use in a different format. It also will not be permitted to loan, hire or sell any copy you make.
   
   
3. Will I be able to copy a film from DVD to a portable player?
   
   No. The Government will monitor the implementation of the new exceptions and review its scope in two years. It will be possible to dub an old VHS tape to a digital player.
   
   
4. Will I be able to copy a computer game?
   
   No.