US Free Trade Agreement Implementation Act 2004
Note: An electronic version of this Act is available in SCALEplus (http://scaleplus.law.gov.au/html/comact/browse/TOCN.htm)
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................4
Schedule 1—Customs amendments 5 Part 1—US originating goods 5 Customs Act 1901 5 Part 2—Verification powers 19 Customs Act 1901 19
Schedule 2—Agricultural and veterinary chemicals amendments 29 Part 1—Limits on use of information 29 Agricultural and Veterinary Chemicals Code Act 1994 29 Part 2—Provisions relating to limits on use of information 39 Agricultural and Veterinary Chemicals (Administration) Act 1992 39 Agricultural and Veterinary Chemicals Code Act 1994 39 Part 3—Change of name from NRA to APVMA 45 Agricultural and Veterinary Chemicals Code Act 1994 45
Schedule 3—Australian geographical indications for wine amendments 46 Australian Wine and Brandy Corporation Act 1980 46 Schedule 4—Life insurance amendments 64 Life Insurance Act 1995 64 Schedule 5—Foreign acquisitions and takeovers amendments 71 Foreign Acquisitions and Takeovers Act 1975 71
Schedule 6—Commonwealth authorities and companies amendments 79 Commonwealth Authorities and Companies Act 1997 79 Schedule 7—Therapeutic goods amendments 80 Therapeutic Goods Act 1989 80
Schedule 8—Patents amendments 88 Patents Act 1990 88 Schedule 9—Copyright amendments 89 Part 1—Performers’ rights in sound recordings 89 Copyright Act 1968 89 Part 2—Performers’ moral rights 100 Copyright Act 1968 100 Part 3—Performers’ protection 125 Copyright Act 1968 125 Part 4—Copying and communicating broadcasts of performances 132 Copyright Act 1968 132 Part 5—Duration of copyright in photographs 136 Copyright Act 1968 136 Part 6—Duration of copyright in works and other subject-matter 140 Copyright Act 1968 140 Part 7—Electronic rights management information 144 Copyright Act 1968 144 Part 8—Criminal offences 150 Copyright Act 1968 150 Part 9—Encoded broadcasts 153 Copyright Act 1968 153 Part 10—Reproductions 159 Copyright Act 1968 159 Part 11—Limitation on remedies available against carriage service providers 161 Copyright Act 1968 161 Telecommunications Act 1997 167
Schedule 10—Broadcasting amendments 168 Broadcasting Services Act 1992 168
An Act to implement the Australia-United States Free Trade Agreement, and for other purposes
[Assented to 16 August 2004]
This Act may be cited as the US Free Trade Agreement Implementation Act 2004.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | Commencement The day on which this Act receives the Royal Assent. | Date/Details 16 August 2004 |
2. Schedule 1
The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.
The Minister for Trade must announce by notice in the Gazette the day on which the Agreement comes into force for Australia.
1 January 2005 (see Gazette 2004, GN51)
The later of:
However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.
1 January 2005 (paragraph (a) applies)
Commencement information
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
5. Schedules 3 to 5 | At the same time as the provisions covered by table item 2. | 1 January 2005 |
6. Schedule 6 | The day on which this Act receives the Royal Assent. | 16 August 2004 |
7. Schedule 7 | At the same time as the provisions covered by table item 2. | 1 January 2005 |
8. Schedule 8 | The day on which this Act receives the Royal Assent. | 16 August 2004 |
9. Schedule 9, Part 1 | 1 January 2005. | 1 January 2005 |
10. Schedule 9, Part 2 | The day on which the WIPO Performances and Phonograms Treaty, done at Geneva on 26 December 1996, comes into force for Australia. | 26 July 2007 (see Gazette 2007, GN22) |
The Minister administering the Copyright Act 1968 must announce by notice in the Gazette the day on which the Treaty comes into force for Australia. | ||
11. Schedule 9, Parts 3 and 4 | The earlier of the following times: (a) the time at which the provisions covered by table item 2 commence; | 1 January 2005 (paragraph (a) applies) |
(b) the time at which the provisions covered by table item 10 commence. | ||
(Parts 3 and 4 of Schedule 9 still commence even if one of the times mentioned in | ||
paragraph (a) or (b) does not occur.) |
12. Schedule 9, items 107 to 112 | 1 January 2005. | 1 January 2005 |
13. Schedule 9, item 113 | The day on which this Act receives the Royal Assent. | 16 August 2004 |
14. Schedule 9, items 114 to 119 | 1 January 2005. | 1 January 2005 |
Commencement information
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
15. Schedule 9, item 120 | At the same time as the provisions covered by table item 2. However, if that time is the same time as the time at which the | 1 January 2005 |
provisions covered by table item 12 commence, then item 120 commences immediately after those provisions | ||
commence. | ||
16. Schedule 9, item 121 | At the same time as the provisions covered by table item 2. | 1 January 2005 |
17. Schedule 9, item 122
At the same time as the provisions covered 1 January 2005 by table item 2. However, if that time is the same time as the time at which the provisions covered by table item 12 commence, then item 122 commences immediately after those provisions commence.
18. Schedule 9, | At the same time as the provisions covered | 1 January 2005 |
items 123 to 166 | by table item 2. | |
19. Schedule 9, | The day on which this Act receives the | 16 August 2004 |
item 167 | Royal Assent. | |
20. Schedule 9, | At the same time as the provisions covered | 1 January 2005 |
items 168 to 192 | by table item 2. | |
21. Schedule 10 | The day on which this Act receives the | 16 August 2004 |
Royal Assent.
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 After Division 1B of Part VIII
Insert:
Division 1C—US originating goods Subdivision A—Preliminary
153Y Simplified outline
The following is a simplified outline of this Division:
153YA Interpretation
Definitions
(1) In this Division:
Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.
Australian originating goods means goods that are Australian originating goods under a law of the US that implements the Agreement.
Convention means the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.
Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 30. In 2004 this was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site.
customs value, in relation to goods, has the meaning given by section 159.
fuel has its ordinary meaning.
Harmonized System means the Harmonized Commodity Description and Coding System (as in force from time to time) that is established by or under the Convention.
Harmonized US Tariff Schedule means the Harmonized Tariff Schedule of the United States (as in force from time to time).
indirect materials means:
equipment associated with the production of other goods; including:
Interpretation Rules means the General Rules for the Interpretation of the Harmonized System provided for by the Convention.
national of the US has the meaning given by Annex 1-A to Chapter 1 of the Agreement.
non-originating materials means goods that are not originating materials.
originating materials means:
Example: This example illustrates goods produced from originating materials and non-originating materials.
Pork sausages are produced in the US from US cereals, Hungarian frozen pork meat and Brazilian spices.
The US cereals are originating materials since they are goods used in the production of other goods (the sausages) and they are US originating goods under Subdivision B.
The Hungarian frozen pork meat and Brazilian spices are non-originating materials since they are produced in countries other than the US and Australia.
produce means grow, raise, mine, harvest, fish, trap, hunt, manufacture, process, assemble or disassemble. Producer and production have corresponding meanings.
recovered goods means goods in the form of individual parts that:
remanufactured goods means goods that:
Schedule 1 tariff table means the table in Schedule 1 to the
Customs (Australia-United States Free Trade Agreement) Regulations 2004.
Schedule 2 tariff table means the table in Schedule 2 to the
Customs (Australia-United States Free Trade Agreement) Regulations 2004.
US means the United States of America.
used means used or consumed in the production of goods.
US originating goods means goods that, under this Division, are US originating goods.
Value of goods
(2) The value of goods for the purposes of this Division is to be worked out in accordance with the regulations. The regulations may prescribe different valuation rules for different kinds of goods.
Tariff classifications
Regulations
(5) For the purposes of this Division, the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time.
Subdivision B—Goods wholly obtained or produced entirely in the US
153YB Goods wholly obtained or produced entirely in the US
Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from originating materials
153YC Goods produced entirely in the US or in the US and Australia exclusively from originating materials
Goods are US originating goods if they are produced entirely in the US, or entirely in the US and Australia, exclusively from originating materials.
Subdivision D—Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials
153YD Simplified outline
The following is a simplified outline of this Subdivision:
153YE Goods (except clothing and textiles) produced entirely in the US or in the US and Australia from non-originating materials
(1) Goods are US originating goods if:
First requirement
(2) Subject to subsection (3), the first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 1 tariff table opposite the final classification for the goods. The first requirement is that:
those non-originating materials satisfies the transformation test (see subsection (8)).
Note 1: Paragraph (2)(b) relates to Article 5.2 (De Minimis) of the Agreement.
Note 2: The value of the non-originating materials is to be worked out in accordance with the regulations: see subsection 153YA(2).
(3) However, the first requirement does not apply if:
Second requirement
Third requirement
(7) The third requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 1 tariff table opposite the final classification for the goods.
Transformation test
(8) A non-originating material satisfies the transformation test if:
Note 1: Paragraph (8)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (8) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.
153YF Goods that are chemicals, plastics or rubber
Goods are US originating goods if:
Subdivision E—Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials
153YG Simplified outline
The following is a simplified outline of this Subdivision:
153YH Goods that are clothing or textiles produced entirely in the US or in the US and Australia from non-originating materials
(1) Subject to subsection (5), goods are US originating goods if:
Note: Subsection (5) sets out a qualification for goods put up in a set for retail sale.
First requirement
(2) The first requirement applies only if a change in tariff classification is specified in column 3 of the Schedule 2 tariff table opposite the final classification for the goods. The first requirement is that:
Note: Paragraph (2)(b) relates to paragraphs 6 and 7 (De Minimis) of Article
4.2 of the Agreement.
(3) In relation to goods classified to Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to be applied by applying:
Second requirement
(4) The second requirement is that the goods satisfy any other requirement that is specified in, or referred to in, column 3 of the Schedule 2 tariff table opposite the final classification for the goods.
Goods put up in a set for retail sale
(5) However, if:
Interpretation Rules; the goods are US originating goods only if:
Note: The value of the goods in the set is to be worked out in accordance with the regulations: see subsection 153YA(2).
(6) In applying paragraph (5)(c), assume the goods were not part of a set.
Example: A skirt and a belt are put up in a set for retail sale. The skirt and the belt have been classified under Rule 3 of the Interpretation Rules according to the tariff classification applicable to skirts.
The effect of subsection (6) is that the origin of the belt must now be determined according to the tariff classification applicable to belts.
Transformation test
(7) A non-originating material satisfies the transformation test if:
Note 1: Paragraph (7)(b) relates to paragraph 2 of Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (7) operates in a recursive manner: a non-originating material may satisfy the transformation test in its own right, or it may satisfy it because each non-originating material used to produce it satisfies the transformation test (whether because each of those materials does so in its own right, or because each non-originating material used to produce the material does so), and so on.
153YI Goods that are clothing and textiles classified to Chapter 62 of the Harmonized System
Goods are US originating goods if:
Subdivision F—Other US originating goods
153YJ Standard accessories, spare parts and tools
Note: The value of the accessories, spare parts or tools is to be worked out in accordance with the regulations: see subsection 153YA(2).
Subdivision G—Packaging materials and containers
153YK Packaging materials and containers
(1) If:
goods in accordance with Rule 5 of the Interpretation Rules; then the packaging material or container is to be disregarded for the purposes of this Division (with 1 exception).
(2) The exception is that in working out if the goods are US originating goods, if the goods must satisfy a regional value content requirement under Subdivision D, the regulations must require the value of the packaging material or container to be taken into account for the purposes of that requirement.
Note: The value of the packaging material or container is to be worked out in accordance with the regulations: see subsection 153YA(2).
Subdivision H—Consignment
153YL Consignment
Part 2—Verification powers
Customs Act 1901
2 At the end of subsection 4C(1)
Add “or is a verification officer for the purposes of Subdivision JA of Division 1 of Part XII”.
3 Paragraph 4C(2)(b)
Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.
4 Subsection 4C(3)
Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.
5 Subsection 4C(5)
Omit “or monitoring officer”, substitute “, monitoring officer or verification officer”.
6 After Division 4A of Part VI
Insert:
Division 4B—Exportation of textile and clothing goods to the US
126AE Authorised officer may request records or ask questions
(1) If textile and clothing goods are exported to the US, an authorised officer may request a person who:
to the US; to produce particular records, or to answer questions put by the officer, in relation to the export, production or transportation of the goods.
(2) The person is not obliged to comply with the request.
Disclosing records or answers to US
(3) An authorised officer may disclose any records so produced, or disclose any answers to such questions, to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.
Definitions
(4) In this section: Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time. Note: In 2004 the text of the Agreement was accessible on the Internet
through the web site of the Department of Foreign Affairs and Trade. Harmonized System has the same meaning as in section 153YA. textile and clothing goods means goods that are classified to:
US means the United States of America.
US customs official means a person representing the customs administration of the US.
7 Subdivision J of Division 1 of Part XII (heading)
Repeal the heading, substitute:
Subdivision J—General powers to monitor and audit
8 After Subdivision J of Division 1 of Part XII
Insert:
Subdivision JA—Powers to monitor and audit— Australia-United States Free Trade Agreement
214BAA Simplified outline
The following is a simplified outline of this Subdivision:
214BAB Definitions
In this Subdivision: Agreement means the Australia-United States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time. Note: In 2004 the text of the Agreement was accessible on the Internet through the web site of the Department of Foreign Affairs and Trade.
AUSFTA verification powers has the meaning given by section 214BAC. Harmonized System has the same meaning as in section 153YA. occupier of premises includes a person who is apparently in charge
of the premises. textile and clothing goods means goods that are classified to:
US means the United States of America.
US customs official means a person representing the customs administration of the US.
verification officer means a person authorised under section 214BAD to enter premises and to exercise AUSFTA verification powers.
214BAC AUSFTA verification powers
(1) For the purposes of this Subdivision, the following are the AUSFTA verification powers:
Operation of equipment
(2) For the purposes of this Subdivision, the AUSFTA verification powers include the power to operate equipment at premises to see whether:
information relating to the export, production or transportation of textile and clothing goods that are exported to the US.
Removing documents and disks etc.
(3) For the purposes of this Subdivision, the AUSFTA verification powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:
and to remove the disk, tape or other storage device from the premises.
214BAD Appointment of verification officers
(1) The CEO may, by writing, authorise an officer to enter premises, and to exercise AUSFTA verification powers in or on premises, for the purposes of this Subdivision.
Who may be authorised to be a verification officer
(2) The CEO must not do so unless the CEO is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise AUSFTA verification powers.
Form of authorisation
(3) An authorisation may apply:
AUSFTA verification powers to be used only as authorised
(4) This Subdivision does not allow:
214BAE Verification officers may enter premises and exercise AUSFTA verification powers with consent
(1) A verification officer may enter premises, and exercise AUSFTA verification powers in or on the premises, to the extent that it is reasonably necessary for the purpose of verifying information relating to the export, production or transportation of textile and clothing goods that are exported to the US.
Occupier’s consent required
Verification officer must leave premises if consent withdrawn
(7) A verification officer must leave the premises if the occupier withdraws the consent.
Consent to be voluntary
(8) A consent of a person does not have effect for the purposes of this section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(9) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.
Notice setting out the occupier’s rights and obligations
(10) Before exercising AUSFTA verification powers in respect of premises, a verification officer must give to the occupier of the premises a written notice setting out the occupier’s rights and obligations under this Subdivision.
Production of identity card
(11) Before a verification officer enters premises or exercises any AUSFTA verification powers, he or she must produce his or her identity card to the occupier.
214BAF US customs officials may accompany verification officers
Occupier’s consent required
US customs officials must leave premises if consent withdrawn
(3) The US customs officials must leave the premises if the occupier withdraws the consent.
Consent to be voluntary
(4) A consent of a person does not have effect for the purposes of this section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(5) A consent of a person, or a withdrawal of consent by a person, does not have effect for the purposes of this section unless it is in writing.
214BAG Availability of assistance in exercising AUSFTA verification powers
In entering premises and exercising AUSFTA verification powers, a verification officer may obtain such assistance as is necessary and reasonable in the circumstances.
214BAH Verification officer may ask questions
214BAI Verification officer may ask for assistance
214BAJ Verification officer may disclose information to US
A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.
214BAK Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
214BAL Compensation for damage to electronic equipment
damage, in relation to data, includes damage by erasure of data or addition of other data.
Part 1—Limits on use of information
1 After Division 4 of Part 2 of the Schedule
Insert:
Division 4A—Limits on use of information
Subdivision A—Preliminary
34B Explanation of Division
an investment in finding out the information to get a return on that investment.
Subdivision B—Limits on use of information
34C NRA must not use some information during some periods for some purposes
(1) During the period described in an item of the table, the NRA must not use information described in the item for a purpose described in the item.
Limits on use of information
The NRA must not use this During this period: For this purpose: information:
1 Information that the applicant or an approved person gives the NRA:
2 Information that the applicant or an approved person gives the NRA:
The period:
Making a decision under section 14, 29 or 34 (except a decision on the application)
Making a decision under section 14, 29 or 34 (except a decision on the application)
Limits on use of information
The NRA must not use this During this period: For this purpose: information:
3 Information that: | The relevant period | Making a decision |
(a) was given to the NRA by the applicant or an | described in section 34F | under section 14, 29 or 34 |
approved person in | ||
connection with an | ||
application under | ||
section 10 or 27; and | ||
(b) was given as required by | ||
the NRA or section 160A; | ||
and | ||
(c) was relied on by the NRA | ||
to grant the application | ||
4 Information that the | The period: | Making a decision |
interested person for a registered chemical product gives the NRA under | (a) starting when the person gives the NRA the information; and | under section 14, 29 or 34 |
section 161 in connection with the product | (b) ending 5 years later if the product is an agricultural | |
chemical product or 3 | ||
years later if the product | ||
is a veterinary chemical |
product
Note 1: Section 34D sets out exceptions to this subsection.
Note 2: Section 161 may require an interested person for an approved active constituent to give the NRA information in connection with the constituent, even though this table does not deal with that requirement.
(iii) a delegate of the NRA; or
(iv) a member of the staff of the NRA.
Subdivision C—Exceptions to limits on use of information
34D Exceptions
(1) Section 34C does not prevent the NRA from using information for making a decision:
registration; if a condition in subsection (2), (3), (4), (5) or (6) of this section is met.
Evidence of consent for use
(2) One condition is that the applicant, an approved person or the interested person for the approval or registration gives the NRA a written statement by the authorising party of that party’s consent to the NRA using the information for making the decision. This condition is met even if the authorising party:
Note: Chapter 7 of the Criminal Code creates offences relating to false and misleading statements and forgery.
Use in the public interest
(3) Another condition is that the NRA is satisfied, having regard to the criteria (if any) prescribed by the regulations, that the use of the information is in the public interest.
Note: Section 34E sets out other rules that are relevant to the exception based on this condition.
Information does not favour the applicant or interested person
(4) Another condition is that:
(c) or 161(2)(b) or (c) (which are about showing that use or dealing with the product may have adverse effects or that the product may be ineffective), whether or not the information was given to the NRA under section 160A or 161.
Identical information whose use is not limited
(5) Another condition is that the NRA is satisfied that there is identical information, or information to the same effect, whose use is not prevented by section 14B or 34C or Part 3.
Information given to NRA in connection with certain applications
(6) Another condition is that the application mentioned in subsection 34C(1) was one of the following:
was a previously endorsed active constituent at the time of the preliminary assessment of the application under section 11A;
(f) an application for variation of the relevant particulars or conditions of the approval of a label for a container for a companion animal product.
34E Further rules about public interest exception
Subdivision D—Period of limit on use of information
34F Period of limit on future use of information relied on in granting application
(1) Subsection 34C(1) prohibits the NRA from using, during the period described in an item of the following table, information that:
Period for which the NRA must not use the information |
---|
Application Period |
1 Application made under section 10 for approval of an active 8 years |
constituent (for a proposed or existing chemical product) that was |
not a previously endorsed active constituent on the commencement |
of this Division |
2 Application made under section 10 for: 8 years |
(a) registration of a chemical product at least one of whose active |
constituents was not a previously endorsed active constituent |
when the application was acknowledged; or |
(b) approval of a label for a container for a chemical product at |
least one of whose active constituents was not a previously |
endorsed active constituent when the application was |
acknowledged |
3 Application (except one covered by item 2) made under section 10 5 years |
for: |
(a) registration of an agricultural chemical product; or |
(b) approval of a label for a container for an agricultural chemical |
product |
4 Application (except one covered by item 2) made under section 10 3 years |
for: |
(a) registration of a veterinary chemical product; or |
(b) approval of a label for a container for a veterinary chemical |
product |
Period for which the NRA must not use the information
Application Period
5 Application made under section 27 for variation of the relevant 5 years particulars or conditions of:
6 Application made under section 27 for variation of the relevant 3 years particulars or conditions of:
Note 1: This section has effect for the purposes of item 3 of the table in subsection 34C(1) (and not for any of the other items in that table).
Note 2: This section is not relevant to information if section 34D provides an exception to the prohibition in subsection 34C(1) on the NRA using the information.
Extension of 8-year limits
(2) The period mentioned in item 1 or 2 of the table in subsection (1) in relation to:
is extended by 1 year for each 5 distinct uses that meet the requirements in subsections (3), (4) and (5).
Subdivision E—Ancillary provisions
34G Identifying information relied on in advice NRA relied on
Part 2—Provisions relating to limits on use of information
2 Paragraph 69EX(a)
After “Part”, insert “or after the commencement of Division 4A of Part 2 of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994”.
3 Section 3 of the Schedule
Insert:
acknowledge an application made under section 10 or 27 has the meaning given in the table:
Acknowledgment of an application | ||
---|---|---|
If: | The application is acknowledged when: | |
1 | The NRA gives notice under subsection 11A(2) (applying of its own force or because of section 28A) that the application has passed a preliminary assessment and will be given a full evaluation in due course | The NRA gives the notice |
2 | The NRA is satisfied that defects in the | The NRA becomes |
application have been rectified as required by a notice given under paragraph 11A(3)(a) (applying of its own force or because of section 28A) | satisfied | |
3 | The NRA starts to consider the application after deferring the consideration under subparagraph 11A(3)(b)(i) (applying of its own force or because of section 28A) | The NRA starts to consider the application |
4 Section 3 of the Schedule
Insert:
authorising party for information means a person who would be entitled to bring an action for breach of an obligation of confidence if the information were disclosed by someone else to the NRA for the purposes of this Code without the person’s permission.
5 Section 3 of the Schedule
Insert:
companion animal product means a veterinary chemical product solely for administration or application to animals that:
6 Section 3 of the Schedule
Insert:
previously endorsed active constituent for a chemical product at a particular time means a substance that:
whether or not the approval or registration was a result of an application by a particular person.
7 After section 11A of the Schedule
Insert:
11B NRA to publish summary of application
8 After section 14A of the Schedule
Insert:
14B NRA not to use information for registration of new agricultural chemical product to approve a similar product after disclosure
9 Subparagraph 15(1)(a)(i) of the Schedule
Repeal the subparagraph, substitute:
(i) the NRA also grants or has granted an application for approval of each active constituent for the product; and
10 After section 28 of the Schedule
Insert:
28A Preliminary assessment of application
Section 11A applies to an application lodged under section 28 and compliance with subsection 28(1) in the same way as it applies to an application lodged under section 11 and compliance with subsection 11(1).
28B NRA to publish summary of application
(1) As soon as practicable after an application is acknowledged, the NRA must cause to be published a summary of the application, unless satisfied that the variation applied for does not relate to use
of or dealing with a proposed or existing chemical product.
(2) The summary must include the details relating to the application that are prescribed by the regulations (if any).
11 Subsection 58(1) of the Schedule
After “in”, insert “section 14B, Division 4A of Part 2 and”.
12 After paragraph 167(1)(b) of the Schedule
Insert: (ba) a decision under section 28A that the application does not comply with subsection 28(1); (bb) a decision under section 28A:
(iii) to reject such an application; (bc) a decision under section 28A refusing to extend a period;
13 After paragraph 167(1)(e) of the Schedule
Insert: (ea) a decision (the information decision) under subsection 34D(3) that the NRA is satisfied that it is in the public interest to use information that section 34C would otherwise prohibit the NRA from using for making a decision (the substantive decision):
14 After subsection 167(2) of the Schedule
Insert:
(2A) Despite paragraph (1)(ea), an application may not be made to the Administrative Appeals Tribunal for review of the information decision if the NRA stated in the notice of that decision given under section 34E that the NRA believed it was necessary to make the substantive decision before the end of 28 days after giving the notice, to prevent imminent risk to public health or occupational health or safety.
Part 3—Change of name from NRA to APVMA
15 Section 3 of the Schedule (definition of acknowledge)
Omit “NRA” (wherever occurring), substitute “APVMA”.
16 Section 3 of the Schedule (definition of authorising party)
Omit “NRA”, substitute “APVMA”.
17 Sections 11B and 14B of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Note: The headings to sections 11B and 14B of the Schedule are altered by omitting “NRA” and substituting “APVMA”.
18 Subparagraph 15(1)(a)(i) of the Schedule
Omit “NRA”, substitute “APVMA”.
19 Subsection 28B(1) of the Schedule
Omit “NRA”, substitute “APVMA”.
Note: The heading to section 28B of the Schedule is altered by omitting “NRA” and substituting “APVMA”.
20 Division 4A of Part 2 of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Note: The headings to sections 34C and 34G of the Schedule are altered by omitting “NRA” and substituting “APVMA”.
21 Section 167 of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Schedule 3—Australian geographical indications for wine amendments
1 Subsection 4(1)
Insert: Federal Court means the Federal Court of Australia.
2 Subsection 4(1)
Insert:
pending, in relation to an application for the registration of a trade mark under the Trade Marks Act 1995, has the meaning given in that Act.
3 Subsection 4(1)
Insert:
registered owner, in relation to a trade mark, means the person in whose name the trade mark is registered under the Trade Marks Act 1995.
4 Subsection 4(1)
Insert:
registered trade mark means a trade mark whose particulars are entered in the Register of Trade Marks under the Trade Marks Act 1995.
5 Subsection 4(1)
Insert:
Register of Trade Marks means the register kept under section 207 of the Trade Marks Act 1995.
6 Subsection 4(1)
Insert: trade mark has the meaning given in the Trade Marks Act 1995.
7 Subsection 40P(1)
Repeal the subsection, substitute:
(1) The functions of the Committee are:
8 Subsection 40P(2)
Omit “function”, substitute “functions”.
9 Before section 40Q in Division 4 of Part VIB
Insert:
Subdivision A—What this Division is about
40PA What this Division is about
(1) This Division deals with the determining of geographical indications (GIs) in relation to a region or locality in Australia.
Note: Geographical indications in relation to wine manufactured in an agreement country are not determined under this Division. They are determined in the agreement between Australia and the agreement country.
(2) Subdivisions B and C deal with the powers of the Committee and applications for the determination of GIs. Subdivision D deals with objections to the determination of a GI on the basis of pre-existing trade mark rights. GIs are determined under Subdivision E.
Subdivision B—Powers of Committee to determine geographical indications
10 After section 40Q
Insert:
40QA Committee must await decisions under Subdivision D
The Committee must not do a thing under Subdivision E in respect of a proposed GI unless the requirements of Subdivision D have been complied with.
Subdivision C—Applications for determinations of geographical indications
11 After section 40R
Insert:
Subdivision D—Objections to determination of geographical indications based on pre-existing trade mark rights
40RA Notice to be given of proposed geographical indication
40RB Grounds of objection to the determination of a geographical indication
Registered owner of a registered trade mark
Trade mark pending
(3) If a person has an application pending for the registration of a trade mark under the Trade Marks Act 1995, the person may object to the determination of a proposed GI on one of the following grounds:
(iii) the proposed GI is likely to cause confusion with that word or expression; and
Trade mark not registered
(4) If a person claims to have trade mark rights in a trade mark that is not registered, the person may object to the determination of a proposed GI on one of the following grounds:
(iii) the person has trade mark rights in that word or expression; and
(iv) the rights were acquired through use in good faith.
40RC Consideration of objections
Notice of objection to be given to Committee
(1) If:
under section 40RA; the Registrar of Trade Marks must in writing notify the Committee of the receipt and terms of the objection.
Registrar of Trade Marks to make decision on whether ground made out or not
(2) If an objection is notified to the Committee under subsection (1), the Registrar of Trade Marks must decide in writing whether the ground of objection is or is not made out.
Registrar may make recommendation to Committee to determine a GI
(3) If:
the Registrar of Trade Marks may make the recommendation. The recommendation must be in writing.
Note 1: For example, it may be reasonable for the Registrar of Trade Marks to make such a recommendation if the Registrar of Trade Marks is satisfied that the proposed GI was in use before the trade mark rights arose.
Note 2: If a recommendation is made under subsection (3), the Committee may determine the GI (see subsection 40SA(4)).
(4) In determining under paragraph (3)(b) whether it is reasonable in the circumstances to make the recommendation to the Committee, the Registrar of Trade Marks must have regard to Australia’s international obligations.
Regulations
(5) Regulations may set out the procedure to be followed in making a decision under subsection (2) or (3). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.
40RD Notice to be given of decision
Notice to be given by Registrar of Trade Marks
(1) After the Registrar of Trade Marks has made a decision under section 40RC in relation to the proposed GI, the Registrar of Trade Marks must, in writing, inform the following of the outcome of the decision and of any recommendation that has been made under subsection 40RC(3):
Notice to be given by Committee
40RE Decision that ground of objection no longer exists
(1) If:
the Registrar of Trade Marks may, in writing, make a decision that the ground of objection no longer exists.
Note: If the Registrar of Trade Marks makes a decision under this section, the Committee may determine the GI (see subsection 40SA(5)).
(2) Regulations may set out the procedure to be followed in making a decision under subsection (1). The procedures may include the charging of fees, the holding of hearings and the taking of evidence.
40RF Appeals
40RG Decisions made under this Division not to affect rights under Trade Marks Act
A decision made under this Division does not:
Subdivision E—Determinations of geographical indications
12 Before section 40S
Insert:
40SA When may a determination be made under this Subdivision?
(1) If an objection was made to a proposed geographical indication (GI) under section 40RB, the Committee may only determine the GI in the circumstances set out in this section.
Grounds of objection not made out
(2) The Committee may determine a GI that was the subject of a decision under subsection 40RC(2), if:
If grounds for objection made out and person agrees to determination of GI
(3) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if the person who objected to the determination of the GI has agreed, by notice in writing given to the Committee, to the determination of the GI.
If grounds for objection made out and a recommendation is made under subsection 40RC(3)
(4) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:
If grounds for objection made out and a decision is made under section 40RE
(5) The Committee may determine a GI that is the subject of a decision that a ground of objection has been made out, if:
13 At the end of section 40T
Add:
(4) In determining a geographical indication, the Committee must not consider any submission to the extent that the submission asserts a trade mark right in respect of the proposed geographical indication.
14 At the end of subsection 40X(2)
Add: ; and (c) if a decision has been made under section 40RC before the final determination, no application to the Administrative Appeals Tribunal may be made in respect of that decision under section 40RC. An appeal lies to the Federal Court under section 40RF from a decision under section 40RC.
15 At the end of subsection 40Y(1)
Add:
Note: Under section 40RF, an appeal lies to the Federal Court from a decision under section 40RC.
16 Application
The amendments made by items 1 to 15 of this Schedule apply to applications for determination of geographical indications that have not been finally determined under section 40W of the Australian Wine and Brandy Corporation Act 1980 on the day this item commences.
17 After Division 4 of Part VIB
Insert:
Division 4A—Omission of registered geographical indications
Subdivision A—What this Division is about
40ZAA What this Division is about
Note: Subsection 40ZD(3) also deals with changes to the Register.
Subdivision B—Omission of Australian GIs for non-use
40ZAB Power of Committee to determine that an Australian GI should be omitted from the Register
The Committee may, either on its own initiative or on an application made in accordance with section 40ZAC, determine that an Australian GI is to be omitted from the Register on the ground that the GI is not in use.
40ZAC Application
40ZAD Further information concerning an application
40ZAE Notice by Committee
If the Committee:
the Presiding Member of the Committee must cause a notice to be published in the manner that the Committee thinks appropriate:
40ZAF Determination by Committee
Meaning of GI not been used
(3) For the purposes of paragraph (2)(b), an Australian GI has not been used if:
Meaning of special circumstances
(4) For the purposes of paragraph (2)(c), special circumstances exist if:
40ZAG Notice of determination
The Presiding Member of the Committee must cause:
40ZAH AAT review of a determination
40ZAI Date of effect of determination to omit GI
Subdivision C—Omission of Australian GIs because no longer required
40ZAJ Application
to in subsection (2); then the application is taken never to have been made.
40ZAK Further information concerning an application
40ZAL Notice by Committee
After receiving an application under section 40ZAJ, the Presiding Member of the Committee must cause a notice to be published in the manner that the Committee thinks appropriate:
(iii) the organisations referred to in subsection 40ZAJ(2); to object to the omission of the GI from the Register by
making written submissions to the Committee within the period of not less than one month that is stated in the notice.
40ZAM Meaning of interested person
For the purposes of subparagraph 40ZAL(b)(i), an interested person in relation to an Australian GI is a person who the Committee is satisfied is:
40ZAN Determination by Committee
No submission made
(1) If no submissions have been made to the Committee in response to the notice under section 40ZAL, the Committee must make a determination in writing to omit the Australian GI from the Register on the grounds that the GI is no longer required.
Submission made
(2) If a submission has been made to the Committee, the Committee must make a determination in writing not to omit the GI from the Register.
40ZAO Notice of determination
The Presiding Member of the Committee must cause:
40ZAP Date of effect of determination to omit Australian GI
Schedule 4—Life insurance amendments
1 After Part 2A
Insert:
Part 2B—Special provisions relating to Australian branches of foreign life insurance companies
16ZD Eligible foreign life insurance company
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
Australian branch, in relation to a body corporate, means a permanent establishment (as defined in subsection 6(1) of the Income Tax Assessment Act 1936) in Australia through which the body corporate carries on or proposes to carry on life insurance business.
16ZE Act does not apply to foreign life insurance business of eligible foreign life insurance company
This Act does not apply in relation to life insurance business carried on outside Australia by an eligible foreign life insurance company.
16ZF Compliance Committee of eligible foreign life insurance company
16ZG Address for service of eligible foreign life insurance companies
2 Paragraph 31(c)
After “outside Australia”, insert “(other than an eligible foreign life insurance company)”.
3 Subparagraph 31(d)(ii)
Omit “this Act.”, substitute “this Act; and”.
4 At the end of paragraph 31(d)
Add:
(iii) the company is not an eligible foreign life insurance company.
5 At the end of section 76
Add:
(3) This section does not apply in relation to an eligible foreign life insurance company.
6 At the end of section 92
Add:
(5) In this section:
director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.
7 At the end of section 113
Add:
(3) To avoid doubt, if the life company is an eligible foreign life insurance company, the investigation need not cover the financial condition of the company to the extent that the financial condition relates to life insurance business carried on outside Australia by the company (see section 16ZE).
8 At the end of section 165
Add:
(3) To avoid doubt, if the life company is an eligible foreign life insurance company, paragraphs (1)(c) and (d) do not apply to the extent that the management of the company, or of the business, relates to life insurance business carried on outside Australia by the company (see section 16ZE).
9 At the end of section 230B
Add:
(10) In this section:
director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.
10 At the end of subsection 230F(5)
Add:
Note: Officer would include a member of the Compliance Committee of an eligible foreign life insurance company.
11 After subsection 235(1)
Insert:
(1A) If a life company that is an eligible foreign life insurance company has engaged, is engaging, or proposes to engage, in any conduct in contravention of this Act, of a direction given under this Act or of a condition imposed on the registration of the company, the Court may grant an injunction:
12 After subsection 235(2)
Insert:
(2A) If a life company that is an eligible foreign life insurance company has refused or failed, or is proposing to refuse or fail, to do an act that the company is required by this Act to do, the Court may grant an injunction requiring a member or members of the Compliance Committee of the company to take action to ensure that the company does the act.
13 Subsection 235(3)
Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.
14 Subsection 235(5)
Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.
15 Subsection 235(7)
After “life company”, insert “or other person”.
16 Paragraph 235(7)(a)
After “the company”, insert “or person”.
17 Paragraph 235(7)(b)
After “the company”, insert “or person”.
18 Subsection 235(8)
Omit “person” (wherever occurring), substitute “company or person”.
19 After subsection 242(1)
Insert:
(1A) This section does not apply in relation to an eligible foreign life insurance company.
20 At the end of section 245
Add:
(8) In this section:
director, in relation to a life company that is an eligible foreign life insurance company, means a member of the Compliance Committee of the company.
21 Schedule (paragraph (b) of the definition of company)
Omit “Territory.”, substitute “Territory; or”.
22 Schedule (at the end of the definition of company)
Add:
(c) an eligible foreign life insurance company.
23 Schedule
Insert:
Compliance Committee, in relation to an eligible foreign life insurance company, has the meaning given by subsection 16ZF(1).
24 Schedule
Insert:
director, in relation to an eligible foreign life insurance company, includes a member of the Compliance Committee of the company.
25 Schedule
Insert:
eligible foreign life insurance company has the meaning given by section 16ZD.
Schedule 5—Foreign acquisitions and takeovers amendments
1 Subsection 5(1)
Insert:
foreign government investor has the meaning given by section 17F.
2 Subsection 5(1)
Insert:
prescribed foreign government investor has the meaning given by section 17G.
3 Subsection 5(1)
Insert: prescribed foreign investor has the meaning given by section 17E.
4 Subsection 5(1)
Insert: prescribed sensitive sector has the meaning given by section 17H.
5 Subsection 13B(1)
Omit “In determining whether a corporation is an exempt corporation in relation to the application of section 18 or 26, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a corporation is an exempt corporation, in relation to the application of section 18 or 26, the value of a corporation’s total assets”.
6 Subsection 13B(4)
Omit “In determining whether a business is an exempt business in relation to the application of section 19, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a business is an exempt business, in relation to the application of section 19, the value of a business’ total assets”.
7 Subsection 13B(5)
Omit “In determining whether a corporation is an exempt corporation in relation to the application of section 20, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a corporation is an exempt corporation, in relation to the application of section 20, the value of a corporation’s total assets”.
8 Subsection 13B(6)
Omit “In determining whether a business is an exempt business in relation to the application of section 21, the value of its total assets”, substitute “For the purposes of Part IA, or in determining whether a business is an exempt business, in relation to the application of section 21, the value of a business’ total assets”.
9 After Part I
Insert:
Part IA—Exempt foreign investments
17A Exempt foreign investments in prescribed corporations etc.
17B Asset thresholds for exempt foreign investments in prescribed corporations etc.—prescribed foreign investors
17C Asset thresholds for exempt foreign investments in prescribed corporations etc.—prescribed foreign government investors
17D Exempt foreign investments in financial sector companies etc.
financial sector company has the same meaning as in the Financial Sector (Shareholdings) Act 1998.
17E Prescribed foreign investor
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
entity includes an individual.
17F Foreign government investor
An entity is a foreign government investor if:
17G Prescribed foreign government investor
An entity is a prescribed foreign government investor if:
17H Prescribed sensitive sector
A kind of business activity is a prescribed sensitive sector in relation to a prescribed foreign investor if:
Schedule 6—Commonwealth authorities and companies amendments
1 After section 47
Insert:
47A Compliance with government procurement requirements
Commonwealth Procurement Guidelines means the guidelines relating to procurement issued under the Financial Management and Accountability Regulations 1997.
Schedule 7—Therapeutic goods amendments
1 Subsection 25(3)
Repeal the subsection, substitute:
(3) If:
completed; the Secretary must:
(4) If:
completed; the Secretary must:
To avoid doubt, if the applicant gives the Secretary the certificate required under subsection 26B(1), the Secretary must include the goods in the Register under subparagraph (d)(ii) without inquiring into the correctness of the certificate.
(4A) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) including therapeutic goods in the Register in reliance on a certificate required under subsection 26B(1).
2 After paragraph 26(1)(a)
Insert: (aa) if goods are not therapeutic devices—the application is accompanied by the certificate required under subsection 26B(1); and
3 After subsection 26(1)
Insert:
(1A) To avoid doubt, if:
the Secretary must list the goods under subsection (1) without inquiring into the correctness of the certificate.
(1B) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) listing therapeutic goods in relation to a person in reliance on a certificate required under subsection 26B(1).
4 After paragraph 26A(1)(a)
Insert:
(b) the application is accompanied by the certificate required under subsection 26B(1); and
5 After subsection 26A(1)
Insert:
(1A) To avoid doubt, if:
the Secretary must list the medicine under subsection (1) without inquiring into the correctness of the certificate.
(1B) Civil proceedings do not lie against the Secretary (or a delegate of the Secretary) in respect of loss, damage or injury of any kind suffered by another person as a result of the Secretary (or the delegate) listing a medicine in relation to a person in reliance on a certificate required under subsection 26B(1).
6 After section 26A
Insert:
26B Certificates required in relation to patents
(1) The certificate required by this subsection is either:
(iii) the applicant has given the patentee notice of the application for registration or listing of the therapeutic goods under section 23.
The certificate must be signed by, or on behalf of, the applicant and must be in a form approved by the Secretary.
(2) A person is guilty of an offence if:
Maximum penalty: 1,000 penalty units.
patent has the same meaning as in the Patents Act 1990.
26C Certificates required in relation to patent infringement proceedings
The certificate must be signed by, or on behalf of, the second person and must be in a form approved by the Secretary.
Maximum penalty: $10,000,000.
(6) When determining the extent of a pecuniary penalty to be ordered pursuant to subsection (5), the court must take into account:
by reason of the second person exploiting the patent during the proceedings.
the certificate; the prescribed court may, pursuant to this section, order that the second person pay to the Commonwealth, a State or a Territory compensation for any damages sustained or costs incurred by the Commonwealth, a State or a Territory as a result of the grant of the interlocutory injunction.
(9) In this section:
prescribed court has the same meaning as in the Patents Act 1990.
26D Requirements for interlocutory injunction
otherwise vexatious or not reasonably made or pursued; the prescribed court may, in addition to any other relief which it believes should be granted to any person, make any of the orders described in subsection (5).
prescribed court has the same meaning as in the Patents Act 1990.
7 Application of amendments
Schedule 8—Patents amendments
1 Paragraph 59(b)
Omit all the words after “patentable invention”.
2 Paragraph 59(d)
Repeal the paragraph.
3 Application of amendments of section 59 of the Patents Act 1990
The amendments of section 59 of the Patents Act 1990 made by this Schedule apply in relation to each patent application for a standard patent:
4 Subsection 104(3)
Repeal the subsection.
5 Paragraph 138(3)(c)
Repeal the paragraph.
Schedule 9—Copyright amendments
Part 1—Performers’ rights in sound recordings
1 Paragraph 22(3)(a)
After “sound recording”, insert “, other than a sound recording of a live performance,”.
Note 1: The following heading to subsection 22(1) is inserted “Literary, dramatic, musical or artistic works”.
Note 2: The following heading to subsection 22(3) is inserted “Sound recordings”.
2 After subsection 22(3)
Insert:
(3A) For the purposes of this Act, the makers of a sound recording of a live performance are:
Note: A performer might be liable to pay compensation under section 116AAA to a person who owns the record on which the recording is made.
(3B) If:
then, for the purposes of paragraph (3A)(b), the employer is taken to be a maker instead of that performer.
(3C) Subsection (3B) may be excluded or modified by agreement between the performer and the employer.
Note 1: The following heading to subsection 22(4) is inserted “Cinematograph films”.
Note 2: The following heading to subsection 22(5) is inserted “Broadcasts and other communications”.
3 At the end of section 22
Add:
Definitions
(7) In this section:
being a live performance, whether in the presence of an audience or otherwise.
performer in a live performance:
sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.
4 Section 84
Repeal the section, substitute:
84 Definitions
In this Part:
being a live performance, whether in the presence of an audience or otherwise.
performer in a live performance:
sound recording of a live performance means a sound recording, made at the time of the live performance, consisting of, or including, the sounds of the performance.
5 Before section 97
Insert:
Subdivision A—Ownership of copyright in subject-matter other than works
6 Subsection 97(2)
Omit “the next succeeding subsection”, substitute “subsection (3)”.
7 After subsection 97(2)
Insert:
(2A) If there is more than one owner of the copyright in a sound recording of a live performance, the owners own the copyright as tenants in common in equal shares.
8 At the end of Division 5 of Part IV
Add:
Subdivision B—Specific provisions relating to the ownership of copyright in pre-commencement sound recordings of live performances
100AA Application
This Subdivision applies to a sound recording of a live
performance if:
100AB Definitions
In this Subdivision:
former owner of the copyright in a sound recording of a live performance means a person mentioned in paragraph 100AD(1)(a).
new owner of the copyright in a sound recording of a live
performance means the following people:
Note: Other expressions used in this Subdivision are defined in section 84.
100AC Application of sections 100AD and 100AE
Sections 100AD and 100AE have effect subject to Parts VII and X.
100AD Makers of pre-commencement sound recordings of live performances
(1) For the purpose of section 100AE, the makers of a sound recording of a live performance are:
Employer may be a maker of the sound recording
(2) If:
then, for the purposes of paragraph (1)(b), the employer is taken to be a maker instead of that performer.
(3) Subsection (2) may be excluded or modified by an agreement (whether made before or after the live performance) between the performer and the employer.
100AE Ownership of pre-commencement copyright in sound recordings of live performances
Ownership of the copyright
(1) On and after the day on which this section commences, all makers of a sound recording of a live performance are owners of any copyright subsisting in the recording by virtue of this Part.
Division of the ownership of the copyright
Copyright to devolve if a new owner is not alive
(7) If a new owner is not alive on the day on which this section commences, then, for the purposes of subsections (2) and (4), that owner is replaced by the person to whom the copyright would have devolved if the new owner had owned the copyright immediately before his or her death. If the copyright would have devolved to more than one person, those persons are to be treated as a single new owner for the purposes of subsections (2) and (4).
100AF Former owners may continue to do any act in relation to the copyright
(1) On and after the day on which this section commences, a former owner of the copyright in a sound recording of a live performance may:
as if each new owner of the copyright had granted a licence or permission (however described) to the former owner to do the act.
Note: However, the former owner may still need to obtain the consent of other former owners of the copyright before doing the act.
(2) Subsection (1) applies to:
licensees or successors in title; in the same way as it applies to the former owner.
(3) Subsections (1) and (2) may be excluded or modified by an agreement (whether made before or after this section commences) between the former owner and a new owner.
100AG Actions by new owners of copyright
If a new owner of the copyright in a sound recording of a live performance brings an action under this Act in respect of the copyright, the new owner is not entitled to the remedies listed in the table.
Actions under this Act
Item In this case... the new owner is not entitled to:
1 | the action is for an infringement of the copyright under section 115 | (a) damages (other than additional damages); or |
(b) an account of profits | ||
2 | the action is for conversion or | (a) damages (other than additional |
detention under section 116 | damages); or | |
(b) an account of profits; or | ||
(c) any other pecuniary remedy | ||
(other than costs); or | ||
(d) delivery up of an infringing copy | ||
3 | the action is brought under section 116A, 116B or 116C | (a) damages (other than additional damages); or |
(b) an account of profits |
100AH References to the owner of the copyright in a sound recording
A new owner of the copyright in a sound recording of a live performance is taken not to be the owner of the copyright for the purposes of the following provisions:
Note: A new owner of the copyright in a sound recording of a live performance is not a relevant right holder under section 135A, nor a relevant copyright owner under section 135ZB or 135ZZI.
9 At the end of Division 7 of Part IV
Add:
113A Agents may act on behalf of groups of performers
or apparent authority, has granted a licence or permission to the person to do the act.
Note: The person may still need to obtain the licence or permission of other owners of the copyright before doing the act.
113B Consent to the use of a sound recording of a live performance
A person is taken to have been granted a licence or permission (however described) by a performer to use a sound recording of a live performance if:
Note: The person may still need to obtain the consent of the other owners of the copyright in the sound recording of the live performance before using the sound recording.
113C Use of published sound recordings when owners cannot be found etc.
(1) An owner (the first owner) of the copyright in a sound recording of a live performance that is a published sound recording is taken to have been granted a licence or permission (however described) by another owner of the copyright to do an act comprised in the copyright, or to do any other act in relation to the copyright, if:
Note: The first owner may still need to obtain a licence or permission from any other owners of the copyright in the sound recording of the live performance.
10 At the end of Division 2 of Part V
Add:
116AAA Compensation for acquisition of property
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
maker of a sound recording of a live performance means a person mentioned in paragraph 22(3A)(a).
performer in a live performance means the following people:
11 At the end of section 123
Add:
Note: However, not all owners of the copyright are entitled to an account of profits: see section 100AG.
12 At the end of section 124
Add:
Note: However, not all owners of the copyright are entitled to damages (other than additional damages) or an account of profits: see section 100AG.
13 Section 135ZB (at the end of the definition of relevant copyright owner)
Add “, but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV”.
14 Section 135ZZI (at the end of the definition of relevant copyright owner)
Add “, but does not include a new owner of the copyright in a sound recording of a live performance within the meaning of Subdivision B of Division 5 of Part IV”.
15 Application
The amendments made by items 1 to 7, 9 and 10 of this Part apply to a sound recording made on or after the day on which this item commences.
Note: The amendments made by the other items of this Part apply to a sound recording of a live performance in which copyright subsists on the day on which this item commences.
Part 2—Performers’ moral rights
Copyright Act 1968
16 Part IX (heading)
Repeal the heading, substitute:
Part IX—Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films
17 Section 189 (definition of act of false attribution)
Repeal the definition, substitute:
18 Section 189 (definition of attributable act)
Repeal the definition, substitute:
19 Section 189 (definition of attributor)
Repeal the definition, substitute:
20 Section 189
Insert:
copy record means a record so far as it embodies:
being a record derived directly or indirectly from an original record of the performance.
21 Section 189 (definition of deal)
Omit “Division 3”, substitute “Divisions 3 and 3A”.
22 Section 189 (definition of derogatory treatment)
Repeal the definition, substitute:
23 Section 189 (definition of infringing article)
Repeal the definition, substitute:
(a) in relation to an author’s moral rights:
(iii) a reproduction of an artistic work; or
(iv) a copy of a cinematograph film; being a work or film in respect of which a moral right of the author has been infringed, other than by derogatory treatment
not involving the material distortion or alteration of, or the mutilation of, the work or film; and
(iii) a copy record of the recorded performance, where dealings with the copy as a copy of an unaltered recorded performance have infringed the performer’s right not to have performership falsely attributed; or
(iv) a record embodying the recorded performance, being a record that incorporates derogatory treatment that has infringed the performer’s right of integrity of performership.
24 Section 189 (definition of moral right)
Repeal the definition, substitute:
(iii) a right of integrity of performership.
25 Section 189 (definition of name)
Omit “Division 3”, substitute “Divisions 3 and 3A”.
26 Section 189
Insert:
original record means a record produced upon the making of a sound recording of a live performance.
Note: The sound track of a cinematograph film is treated as not being a sound recording: see section 23.
27 Section 189
Insert:
performance means a performance within the meaning of Part XIA, so far as the performance consists of sounds.
28 Section 189
Insert:
performer in a performance:
Note: See also section 191B, which deals with the conductor of a musical performance.
29 Section 189
Insert:
performership means participation in a performance, as the performer or one of the performers.
30 Section 189
Insert:
person representing the performer means a person who, under subsection 195ANB(1) or (2), is entitled to exercise and enforce a performer’s moral right.
31 Section 189
Insert: qualified person has the same meaning as in Part XIA.
32 Section 189
Insert:
recorded performance means a performance embodied in a record so as to constitute a sound recording.
33 Section 189
Insert: record embodying a performance means:
34 Section 189
Insert:
right not to have performership falsely attributed has the meaning given by Division 3A.
35 Section 189
Insert:
right of attribution of performership has the meaning given by Division 2A.
36 Section 189
Insert: right of integrity of performership has the meaning given by Division 4A.
37 Section 189
Insert:
sound recording means a sound recording in which copyright subsists.
38 Section 189
Insert:
staged, in relation to a live performance, has the meaning given by section 191A.
39 After section 191
Insert:
191A Staging a performance
For the purposes of this Part, a live performance is staged by the person who makes the arrangements necessary for the performance (including elements of the performance not consisting of sounds) to take place.
191B Conductor to be treated as a performer
If a performance of a musical work is conducted by a conductor, then the sounds of the performance are to be treated as having been made by the conductor (as well as by the persons who actually made those sounds).
Note: As a consequence, the conductor will be able to be treated as being one of the performers. Note, however, the qualified person requirement in the definition of performer in section 189.
40 At the end of section 192
Add:
(2) The moral rights of a performer in a live performance or recorded performance are in addition to any other rights in relation to the performance that the performer or anyone else has under this Act.
41 After Division 2 of Part IX
Insert:
Division 2A—Right of attribution of performership
195ABA Performer’s right of attribution of performership
Note: If there is more than one performer in a performance, then each performer has a right of attribution of performership: see subsection 195AZQ(2).
195ABB Acts giving rise to right of attribution of performership
(1) The attributable acts for a live performance are the following:
Note: For the definition of staged, see section 191A.
(2) The attributable acts for a recorded performance are the following:
195ABC Nature of the identification of performer
in the circumstances; the identification is to be made in that way.
(3) If a performance is presented by performers who use a group name, then identification by using the group name is sufficient identification of the performers in the group.
195ABD Identification of performer to be clear and reasonably prominent or audible
An identification of a performer must be clear and reasonably prominent or reasonably audible.
195ABE What is a reasonably prominent identification
When a copy record is made of a recorded performance, an identification of a performer or group of performers is taken to be reasonably prominent if it is included on each copy record of the recorded performance in such a way that a person acquiring the copy record will have notice of the identity of the performer or group.
42 After Division 3 of Part IX
Insert:
Division 3A—Right not to have performership falsely attributed
195AHA Performer’s right not to have performership falsely attributed
Note: If there is more than one performer in a performance, then each performer has a right not to have performership falsely attributed: see subsection 195AZQ(3).
195AHB Acts of false attribution of performership
Acts of false attribution for live performances
(1) For a live performance, it is an act of false attribution for the stager of the performance, or a person authorised by the stager, to state falsely, or imply falsely, to the audience or intended audience immediately before the performance that:
Note: For the definition of staged, see section 191A.
Example 1: The stager of a live performance given by X and Y attributes the performance to A and B. This is an act of false attribution in relation to both X and Y.
Example 2: The stager of a live performance given by X and Y attributes the performance to X and A. This is an act of false attribution in relation to both X and Y (even though X is mentioned in the attribution).
Acts of false attribution for recorded performances—individual performers
(5) For a recorded performance, each of the following acts is an act of false attribution:
Acts of false attribution for recorded performances—groups of performers
(6) For a recorded performance, each of the following acts is an act of false attribution:
Silent performers
(7) It is not an act of false attribution of performership to state that a performer who participated silently in a performance performed in the performance.
Example: X and Y together present a cabaret act in which X sings and Y dances silently. The “performance” for the purposes of this Part consists only of the sounds made by X. It is not an act of false attribution in respect of the performance to state or imply that Y was also a performer.
195AHC Act of false attribution of performership of altered recorded performance
43 After Division 4 of Part IX
Insert:
Division 4A—Right of integrity of performership
195ALA Performer’s right of integrity of performership
Note: If there is more than one performer in a performance, then each performer has a right of integrity of performership: see subsection 195AZQ(4).
195ALB Derogatory treatment of performance
In this Part:
derogatory treatment, in relation to a performer in a live performance or recorded performance, means the doing, in relation to the performance, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the performance that is prejudicial to the performer’s reputation.
44 Before section 195AM
Insert:
Subdivision A—Duration and exercise of moral rights of authors
Note 1: The heading to section 195AM is altered by inserting “author’s” after “Duration of”.
Note 2: The heading to section 195AN is altered by inserting “author’s” after “Exercise of”.
45 At the end of Division 5 of Part IX
Add:
Subdivision B—Duration and exercise of moral rights of performers
195ANA Duration of performer’s moral rights for recorded performances
195ANB Exercise of performer’s moral rights
46 Before section 195AO
Insert:
Subdivision A—Infringement of moral rights of authors
47 Section 195AO
Omit “Division” (first occurring), substitute “Subdivision”.
48 Section 195AP
Omit “Division”, substitute “Subdivision”.
49 Subsection 195AQ(1)
Omit “Division”, substitute “Subdivision”.
50 Section 195AVA
After “moral rights”, insert “in respect of a work”.
51 Section 195AVB
After “moral rights”, insert “in respect of a work”.
52 At the end of Division 6 of Part IX
Add:
Subdivision B—Infringement of moral rights of performers
195AXA Infringement of right of attribution of performership
Subject to this Subdivision, a person infringes a performer’s right of attribution of performership in respect of a live performance or recorded performance if the person does, or authorises the doing of, an attributable act in respect of the performance without the identification of the performer in accordance with Division 2A as a performer in the performance.
195AXB Infringement of right not to have performership falsely attributed
Subject to this Subdivision, a person infringes a performer’s right not to have performership falsely attributed if the person does an act of false attribution in respect of the performance.
195AXC Infringement of right of integrity of performership
treatment, then a person infringes a performer’s right of integrity of performership in respect of the recorded performance if the person does any of the following in respect of the recorded performance (as affected by the derogatory treatment):
195AXD No infringement of right of attribution of performership if it was reasonable not to identify the performer
Note: For example, a performance may be used to attract custom in a hotel or restaurant.
195AXE No infringement of right of integrity of performership if derogatory treatment or other action was reasonable
Note: For example, a performance may be used to attract custom in a hotel or restaurant.
(3) A person who:
does not, by doing that act, infringe a performer’s right of integrity of performership in respect of the performance if the person establishes that it was reasonable in all the circumstances to do that act.
195AXF Infringement by importation for sale or other dealing
dealing with does not include distributing except where the proposed distribution is for the purposes of sale.
195AXG Infringement by sale and other dealings
deals with does not include:
195AXH Matters to be taken into account
In determining whether a person has authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance, the matters that must be taken into account include the following:
195AXI Communication by use of certain facilities
A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised the doing of an act that is an infringement of moral rights in a live performance or recorded performance merely because another person uses the facilities so provided to do such an act.
195AXJ Performer’s consent to act or omission
(1) It is not an infringement of a performer’s moral right in respect of a live performance or recorded performance to do, or omit to do, something if the act or omission is within the scope of a written consent given by the performer or a person representing the performer.
Note: The consent of one performer does not affect the moral rights of any other performer: see subsection 195AZQ(5).
195AXK Consent invalidated by duress or false or misleading statements
the consent does not have any effect.
195AXL Acts or omissions outside Australia
It is not an infringement of a performer’s moral right in respect of a live performance or recorded performance to do, or omit to do, something outside Australia.
53 Before section 195AY
Insert:
Subdivision A—Remedies for infringement of moral rights of authors
54 Section 195AY
Omit “Division” (wherever occurring), substitute “Subdivision”.
55 Sections 195AZB and 195AZC
Repeal the sections.
Note 1: The heading to section 195AZ is altered by inserting “author’s” after “infringement of”.
Note 2: The heading to section 195AZA is altered by inserting “author’s” after “infringement of”.
Note 3: The heading to section 195AZE is altered by inserting “author’s” after “subsistence of”.
56 At the end of Division 7 of Part IX
Add:
Subdivision B—Remedies for infringement of moral rights of performers
195AZGA Definition etc.
195AZGB Actions for infringement of performer’s moral rights
If a person infringes any of the moral rights of a performer in respect of a live performance or recorded performance, then the performer or a person representing the performer may bring an action in respect of the infringement, subject to any co-performership agreement in force under section 195ANB to which the performer is a party.
195AZGC Remedies for infringements of performer’s moral rights
Note: Subsection (4) does not apply in relation to the right of integrity of performership, which ends on the performer’s death: see section 195ANA.
195AZGD Presumption as to subsistence of copyright
In an action brought under this Part for an infringement of a moral right in respect of a recorded performance, copyright is presumed to subsist in the recorded performance if the defendant does not put in issue the question whether copyright subsists in the recorded performance.
195AZGE Presumption as to subsistence of performer’s moral rights
195AZGF Presumptions in relation to performership
the group performed in the performance, then, in an action brought under this Part, the group whose name so appeared is, if it was a name by which the group was commonly known, presumed, unless the contrary is established, to have performed in the performance.
Subdivision C—Miscellaneous
195AZGG Saving of other rights and remedies
195AZGH Jurisdiction of courts
57 Before section 195AZH
Insert:
Subdivision A—Miscellaneous provisions about moral rights of authors
58 At the end of Division 8 of Part IX
Add:
Subdivision B—Miscellaneous provisions about moral rights of performers
195AZP Parts of performances
Moral rights in respect of a live performance or recorded performance apply in relation to the whole or a substantial part of the performance.
195AZQ Performances that have more than one performer
Example: If X and Y are the performers in a performance, then each of them has the right to be identified. However, there is no infringement of X’s moral right if Y is not identified (and vice versa).
Note: See also subsection 195ABC(3), which relates to the use of group names.
(3) An act of false attribution of performership in respect of the performance infringes each performer’s right not to have performership falsely attributed.
Example: X and Y are the performers in a performance that is falsely attributed to X and Z. This false attribution infringes X’s moral right and Y’s moral right.
(4) The right of integrity of performership in respect of the performance is a right of each performer.
Example: X and Y are the performers in a performance. The performance is subjected to derogatory treatment that is prejudicial to X’s reputation but not to Y’s reputation. The result is an infringement of X’s right of integrity of performership but not an infringement of Y’s right of integrity of performership.
(5) The consent of one performer to any act or omission affecting his or her moral rights in respect of the performance does not affect the moral rights of any other performer in respect of the performance.
195AZR Application
Part 3—Performers’ protection
Copyright Act 1968
59 Subsection 10(1) (at the end of the definition of communicate)
Add “, including a performance or live performance within the meaning of this Act”.
60 Subsection 248A(1) (paragraphs (a) and (b) of the definition of exempt recording)
Repeal the paragraphs, substitute:
(a) an indirect cinematograph film of a performance, being a film made solely for the purpose of the private and domestic use of the person who made it;
(aa) an indirect sound recording of a performance, being a recording that is a fair dealing with the performance for the purpose of research or study;
(b) an indirect cinematograph film of a performance, being a film made solely for the purpose of use in scientific research;
61 Subsection 248A(1) (paragraphs (c), (d) and (e) of the definition of exempt recording)
Omit “an indirect sound recording or an indirect cinematograph film of a performance, being a sound recording or film”, substitute “an indirect cinematograph film of a performance, being a film”.
62 Subsection 248A(1) (paragraph (f) of the definition of exempt recording)
Omit “sound recording or”.
63 Subsection 248A(1) (after paragraph (f) of the definition of exempt recording)
Insert: (fa) a direct or indirect sound recording of a performance, being a recording that is a fair dealing with the performance:
(iii) for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film;
64 Subsection 248A(1) (after paragraph (j) of the definition of exempt recording)
Insert: (ja) a copy of a sound recording referred to in paragraph (aa), (fa) or (g), being a copy made solely for a purpose referred to in any of those paragraphs;
65 Subsection 248A(1) (paragraph (k) of the definition of exempt recording)
Omit “sound recording or”.
66 Subsection 248A(1) (after subparagraph (n)(i) of the definition of exempt recording)
Insert: (ia) if the copy is of a sound recording—solely for a purpose referred to in paragraph (aa), (fa) or (g); or
67 Subsection 248A(1) (subparagraph (n)(ii) of the definition of exempt recording)
Before “solely”, insert “if the copy is of a cinematograph film—”.
68 Subsection 248A(1) (definition of indirect)
Omit “broadcast, or a re-broadcast,”, substitute “communication”.
69 Subsection 248A(1) (definition of performance)
Repeal the definition, substitute:
70 Subsection 248A(1)
Insert:
performer, in relation to a performance that is given outside Australia, does not include a person who is not a qualified person at the time of the performance.
71 After subsection 248A(1)
Insert:
(1A) For the purposes of paragraph (aa) of the definition of exempt recording, in determining whether a recording is a fair dealing with a performance for the purpose of research or study, regard must be had to the following matters:
72 Section 248B
Omit “sound recording or”.
73 After subsection 248C(1)
Insert:
(1A) A sound recording, or a copy of a sound recording, that is an exempt recording because it was made for a purpose referred to in paragraph (aa) or (fa) of the definition of exempt recording in subsection 248A(1) ceases to be an exempt recording if it is used for any other purpose without the authority of the performer.
74 Subsection 248C(2)
Omit “A sound recording or cinematograph film, or a copy of such a recording or film,”, substitute “A cinematograph film, or a copy of a cinematograph film,”.
75 Section 248D
Repeal the section, substitute:
248D Private and domestic use
For the purposes of this Part, a cinematograph film is taken not to have been made for the private and domestic use of the person who made it if it is made for the purpose of:
76 Paragraph 248G(1)(b)
Omit “broadcasts or re-broadcasts the performance”, substitute
“communicates the performance to the public”.
77 Subsection 248G(3)
Omit “broadcasts or re-broadcasts an authorised recording of a performance”, substitute “communicates an authorised recording of a performance to the public”.
78 At the end of section 248J
Add:
(4) If:
event or transaction as the action referred to in paragraph (a); the amount of any damages referred to in paragraph (b) that, apart from this subsection, would be awarded to the performer is to be reduced by the amount of the damages referred to in paragraph (c).
(5) If:
event or transaction as the action referred to in paragraph (a); the amount of any damages referred to in paragraph (b) that, apart from this subsection, would be awarded to the performer is to be reduced by the amount of the damages referred to in paragraph (c).
79 Subsection 248P(3)
Omit “broadcast or re-broadcast the performance”, substitute “communicate the performance to the public”.
80 After subsection 248P(7A)
Insert:
(7B) A person who makes an indirect recording solely for the purpose of his or her private and domestic use without the authority of the performer does not, by doing so, contravene subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal Code).
81 Subsection 248P(8)
Omit “broadcasts or re-broadcasts an authorised recording of a performance”, substitute “communicates an authorised recording of a performance to the public”.
82 After paragraph 248U(1)(a)
Insert: (aa) so that the provisions apply in relation to recordings, made in that country, of performances in like manner as those provisions apply in relation to recordings of performances given in Australia; (ab) so that the provisions apply in relation to broadcasts, made in that country, of performances in like manner as those provisions apply in relation to broadcasts of performances given in Australia; (ac) so that the provisions apply in relation to recordings, made by persons who are citizens, nationals or residents of that country, of performances in like manner as those provisions apply in relation to recordings of performances given in Australia;
83 Subsection 248V(1)
Omit “(whether the lack of protection relates to the nature of the performance or the nationality, citizenship or country of residence of its performer, or all of those matters)”, substitute “(whether the lack of protection relates to all or any of the ways that the provisions may be applied by the regulations under subsection 248U(1))”.
84 Application
The amendments made by this Part apply to acts done, in respect of a performance, within the protection period of the performance after the day on which this item commences (even if the performance was given before that day).
Part 4—Copying and communicating broadcasts of performances
Copyright Act 1968
85 Section 135A
Insert: performance has the same meaning as in Part XIA.
86 Section 135A
Insert: performer has the same meaning as in Part XIA.
87 Section 135A (definition of relevant copyright owner)
Repeal the definition.
88 Section 135A
Insert: relevant right holder means:
89 After subsection 135E(1)
Insert:
(1A) For the purposes of Part XIA, each performer of a performance is taken to have authorised an administering body, or a person on behalf of an administering body, to make or communicate a copy of a broadcast of the performance if the following paragraphs are satisfied:
Note: The effect of this subsection is that no right of action and no offence occurs in respect of the copy or communication under Part XIA (performers’ protection).
90 Subsection 135E(2)
After “subsection (1)” (first occurring), insert “or (1A)”.
91 Paragraph 135E(2)(a)
After “paragraph (1)(b) or (c)”, insert “or (1A)(b) or (c)”.
92 Subsection 135E(2)
After “subsection (1)” (second occurring), insert “or (1A)”.
93 After subsection 135F(1)
Insert:
(1A) For the purposes of Part XIA, each performer of a performance is taken to have authorised the making of a preview copy of a broadcast of the performance.
Note: The effect of this subsection is that no right of action and no offence occurs in respect of the preview copy under Part XIA (performers’ protection).
94 Subsection 135F(5)
After “subsection 135E(1)”, insert “or (1A)”.
95 Subsection 135F(5)
After “paragraph 135E(1)(b) or (c)”, insert “or (1A)(b) or (c), as the case requires”.
96 Subsection 135F(6)
Omit “subsection (1) does”, insert “subsections (1) and (1A) do”.
97 At the end of section 135F
Add:
(8) For the purposes of Part XIA, each performer in a performance is taken to have authorised a communication of a preview copy of a broadcast of the performance if:
Note: The effect of this subsection is that no right of action and no offence occurs in respect of the communication of the preview copy under Part XIA (performers’ protection).
98 Paragraph 135H(2)(a)
After “works,”, insert “performances,”.
99 Subsections 135J(5) and 135JA(7)
Omit “subsections 135E(1) and 135F(1)”, substitute “sections 135E and 135F”.
100 Subparagraph 135KA(a)(i)
After “copyright”, insert “or performers’”.
101 Subsection 135P(3)
Omit “relevant copyright owners” (wherever occurring), substitute “relevant right holders”.
102 Paragraph 135Q(b)
Omit “relevant copyright owners”, substitute “relevant right holders”.
103 At the end of section 135Z
Add:
(2) Nothing in this Part affects the right of a performer in a performance included in a broadcast to authorise an administering body:
Note: The heading to section 135Z is altered by omitting “Relevant copyright owner” and substituting “Relevant right holder”.
104 At the end of subsection 248G(1)
Add:
Note: An educational or other institution can copy and communicate a broadcast of a performance without the authority of the performer in some circumstances: see sections 135E and 135F.
105 At the end of subsection 248P(8)
Add:
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).
Note 2: An educational or other institution can also copy and communicate a broadcast of a performance without contravening this section in some circumstances: see sections 135E and 135F.
106 Application
The amendments made by this Part apply in respect of copies of broadcasts, or communications of broadcasts, made after the day on which this item commences (even if the performance concerned was given before that day).
Part 5—Duration of copyright in photographs
Copyright Act 1968
107 Subsection 33(2)
Repeal the subsection, substitute:
(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 50 years after the end of the calendar year in which the author of the work died.
108 Subsection 33(6)
Repeal the subsection.
109 Subsection 34(1)
Repeal the subsection, substitute:
(1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 50 years after the end of the calendar year in which the work was first published.
110 Subsection 34(2)
Omit “The last preceding subsection”, substitute “Subsection (1)”.
111 Subsection 34(2)
Omit “the expiration”, substitute “the end”.
112 Subsection 51(1)
Omit “the expiration of the calendar year in which the author of a literary, dramatic or musical work, or of an artistic work being a photograph or engraving,”, substitute “the end of the calendar year in which the author of a literary, dramatic, musical or artistic work”.
113 Subsection 81(3)
Omit “sections 33 and 51”, substitute “section 33”.
Note: This item omits an incorrect reference to a section.
114 At the end of section 127
Add:
(4) However, if the owner of the material or apparatus was a body corporate, then paragraph (3)(a) only applies if the presumption is required to determine the ownership of the copyright in the photograph.
Note: For example, the presumption does not apply if it is required to determine the duration of the copyright in the photograph.
115 At the end of section 208
Add:
(2) However, if the owner of the material on which the photograph was taken was a body corporate, then subsection (1) only applies in respect of references to the author of the photograph that relate to the ownership of the copyright in the photograph.
Note: For example, subsection (1) does not apply in relation to references to the author of the photograph that relate to the duration of the copyright in the photograph.
116 Section 212
Repeal the section.
117 Application
The amendments made by this Part apply to copyright in photographs that subsists on or after the day on which this item commences.
118 Compensation scheme for agreements made before Royal Assent
Application of item
(1) This item applies if:
Owner may notify person that owner objects to person doing the act
(2) Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.
Owner may provide reasonable compensation to person
Person may do act if not notified by owner or if not paid reasonable compensation
Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).
(8) In this item:
owner, in relation to the copyright in a photograph at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the photograph at that time in respect of that act.
119 Applications to Copyright Tribunal for determination of reasonable compensation payable
owner, in relation to the copyright in a photograph at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the photograph at that time in respect of that act.
Part 6—Duration of copyright in works and other subject-matter
Copyright Act 1968
120 Subsection 33(2)
Omit “50 years”, substitute “70 years”.
121 Subsections 33(3) and (5)
Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.
122 Subsection 34(1)
Omit “50 years”, substitute “70 years”.
123 Subsection 81(2)
Omit “50 years after the expiration”, substitute “70 years after the end”.
124 Section 93
Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.
125 Section 94
Omit “the expiration of 50 years after the expiration” (wherever occurring), substitute “the end of 70 years after the end”.
126 Paragraph 128(a)
Omit “50 years”, substitute “70 years”.
127 At the end of subsection 132(1)
Add:
Note: A person who makes an agreement before the US Free Trade Agreement Implementation Act 2004 receives the Royal Assent might not commit an offence under this section: see items 118 and 132 of Schedule 9 to that Act.
128 Paragraphs 187(2)(b) and 188(2)(b)
Omit “the expiration of 50 years after the expiration”, substitute “the end of 70 years after the end”.
129 Paragraph 188(3)(b)
Omit “expiration” (wherever occurring), substitute “end”.
130 Subsection 220(3)
Repeal the subsection.
131 Application
The amendments made by this Part apply to copyright in works and other subject-matter that subsists on or after the day on which this item commences.
132 Compensation scheme for agreements made before Royal Assent
Application of item
(1) This item applies if:
Owner may notify person that owner objects to person doing the act
(2) Before the person does the act, the owner of the copyright may notify the person in writing that the owner objects to the person doing the act.
Owner may provide reasonable compensation to person
Person may do act if not notified by owner or if not paid reasonable compensation
Note: A defendant bears an evidential burden in relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal Code).
(8) In this item: owner, in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.
133 Applications to Copyright Tribunal for determination of reasonable compensation payable
owner, in relation to the copyright in a work or other subject-matter at a particular time in respect of a particular act, includes an exclusive licensee of the copyright in the work or subject-matter at that time in respect of that act.
Part 7—Electronic rights management information
Copyright Act 1968
134 Subsection 10(1) (definition of electronic rights management information)
Repeal the definition, substitute:
electronic rights management information, in relation to a work or other subject-matter, means information that:
135 Paragraph 116B(1)(a)
Repeal the paragraph, substitute:
(a) either:
136 Subparagraph 116C(1)(a)(i)
Repeal the subparagraph, substitute:
(i) distributes a copy of the work or other subject-matter to the public;
Note: The heading to section 116C is replaced by the heading “Distribution to the public etc. of works whose electronic rights management information has been removed or altered”.
137 Subparagraph 116C(1)(a)(ii)
Omit “for the purpose of trade”, substitute “for distribution to the public”.
138 Paragraph 116C(1)(b)
Repeal the paragraph, substitute:
(b) either:
139 After section 116C
Insert:
116CA Distribution and importation of electronic rights management information that has been removed or altered
unless the defendant proves otherwise.
116CB Exception relating to national security and law enforcement
Sections 116B to 116CA do not apply in respect of anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
140 Subsections 116D(1) and (2)
Omit “or 116C”, substitute “, 116C or 116CA”.
Note: The heading to section 116D is altered by omitting “and 116C” and substituting “, 116C and 116CA”.
141 Subsections 132(5C) and (5D)
Repeal the subsections, substitute:
Offences relating to electronic rights management information
(5C) A person commits an offence if:
(5D) A person commits an offence if:
without the permission of the owner or exclusive licensee of the copyright; and
(5DA) A person commits an offence if:
142 After subsection 132(5E)
Insert:
Defence for certain public institutions etc.
(5EA) Subsections (5C) to (5DB) do not apply in respect of anything lawfully done by the following bodies in performing their functions:
Note: A library that is owned by a person conducting a business for profit might not itself be conducted for profit: see section 18.
143 Subsection 132(5J)
After “(5E),”, insert “(5EA),”.
144 Subsection 134(2)
Omit “or 116C”, substitute “, 116C or 116CA”.
145 Application
The amendments made by this Part apply in respect of acts done after the day on which this item commences.
Part 8—Criminal offences
Copyright Act 1968
146 Paragraphs 132(1)(b) and (c)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
Note: The following heading to subsection 132(1) is inserted “Offences relating to infringing copies”.
147 Subparagraph 132(1)(d)(i)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
148 Subparagraph 132(1)(d)(ii)
After “for the purpose of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.
149 Subparagraph 132(1)(d)(iii)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
150 Paragraph 132(2)(a)
After “for the purpose of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.
151 Paragraph 132(2A)(a)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
152 Paragraph 132(2A)(b)
After “for the purpose of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.
153 Paragraph 132(2A)(c)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
Note 1: The following heading to subsection 132(5) is inserted “Offence relating to infringing public performances of literary, dramatic or musical works”.
Note 2: The following heading to subsection 132(5AA) is inserted “Offences relating to sound recordings or films heard or seen in public”.
Note 3: The following heading to subsection 132(5A) is inserted “Offences relating to circumvention services and devices”.
154 Before subsection 132(5E)
Insert:
Offence relating to significant infringement of copyright
(5DB) A person commits an offence if:
(5DC) In determining whether one or more infringements occur on a commercial scale for the purposes of paragraph (5DB)(d), the following matters are to be taken into account:
155 Subsection 132(5E)
Omit “and (5B)”, substitute “to (5DB)”.
Note 1: The following heading to subsection 132(5E) is inserted “Defence relating to law enforcement and national security”.
Note 2: The following heading to subsection 132(5F) is inserted “Permitted purpose exceptions”.
Note 3: The following heading to subsection 132(6) is inserted “Section applies only in respect of acts done in Australia”.
Note 4: The following heading to subsection 132(6AA) is inserted “Penalties”.
156 Subsection 132(6A)
Omit “or (5D)”, substitute “, (5D), (5DA) or (5DB)”.
Note: The following heading to subsection 132(7) is inserted “Proceedings may be brought in Federal Court etc.”.
157 Subsection 132(9)
Insert:
Note: The following heading to subsection 132(9) is inserted “Definitions”.
158 Subsection 132(9)
Insert:
profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.
159 At the end of section 132
Add:
Burden of proof relating to profit
(11) In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.
160 Application
The amendments made by this Part apply in respect of acts done after the day on which this item commences.
Part 9—Encoded broadcasts
Copyright Act 1968
161 Section 135AL
Insert:
channel provider means a person who:
of incidental matter, the channel is broadcast as part of an encoded broadcast service.
162 Section 135AL
Insert:
163 Section 135AL
Insert:
profit does not include any advantage, benefit or gain resulting from, or associated with, any private or domestic use of any copyright material.
164 Subparagraph 135AN(1)(b)(iii)
After “distributes”, insert “(including by exporting from Australia)”.
Note 1: The following heading to subsection 135AN(1) is inserted “Actions in relation to the manufacture of and dealing with broadcast decoding devices”.
Note 2: The following heading to subsection 135AN(2) is inserted “Exception relating to law enforcement and national security”.
165 Subsection 135AN(3)
Repeal the subsection, substitute:
Who may bring an action
(3) Subject to subsection (8), if this section applies, the following persons may bring an action against the person mentioned in subsection (1):
Note: See section 135AL for the definition of channel provider.
Note 1: The following heading to subsection 135AN(4) is inserted “Relief etc.”.
Note 2: The following heading to subsection 135AN(7) is inserted “Presumption relating to defendant’s knowledge”.
Note 3: The following heading to subsection 135AN(8) is inserted “Limitation on bringing actions”.
166 Subsection 135ANA(1)
Omit “this section”, substitute “this subsection”.
Note 1: The heading to section 135ANA is altered by omitting “for commercial purposes”.
Note 2: The following heading to subsection 135ANA(1) is inserted “Actions in relation to the use of broadcast decoding devices”.
167 Paragraph 135ANA(1)(b)
Omit “an encoded broadcast”, substitute “the encoded broadcast”.
168 Paragraph 135ANA(1)(c)
Repeal the paragraph.
169 After subsection 135ANA(1)
Insert: (1A) Subject to subsection (2), this subsection applies if:
(1B) Subject to subsection (2), this subsection applies if:
Note: The following heading to subsection 135ANA(2) is inserted “Exception relating to law enforcement and national security”.
170 Subsection 135ANA(3)
Repeal the subsection, substitute:
Who may bring an action
(3) Subject to subsection (7), if subsection (1), (1A) or (1B) applies, the following persons may bring an action against the person mentioned in that subsection:
Note: See section 135AL for the definition of channel provider.
Note: The following heading to subsection 135ANA(4) is inserted “Relief etc.”.
171 Paragraph 135ANA(5)(a)
After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.
172 Paragraph 135ANA(5)(b)
Omit “the trade”, substitute “any trade”.
173 Subsection 135ANA(7)
After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.
Note: The following heading to subsection 135ANA(7) is inserted “Limitation on bringing actions”.
174 Paragraph 135AS(1)(b)
After “by way of trade”, insert “, and with the intention of obtaining a commercial advantage or profit,”.
Note: The following heading to subsection 135AS(1) is inserted “Offences in relation to manufacture of or dealing with broadcast decoding devices”.
175 Paragraph 135AS(1)(c)
Repeal the paragraph, substitute:
(c) distribute (including by exporting from Australia) a broadcast decoding device with the intention of trading and obtaining a commercial advantage or profit, or with the intention of engaging in any other activity that will affect prejudicially a broadcaster; or
176 Paragraph 135AS(1)(d)
After “by way of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.
177 Subparagraph 135AS(1)(e)(i)
After “by way of trade,”, insert “and with the intention of obtaining a commercial advantage or profit,”.
178 Subparagraph 135AS(1)(e)(ii)
Omit “for trading,”, substitute “for trading with the intention of obtaining a commercial advantage or profit,”.
179 Subparagraph 135AS(1)(e)(iii)
After “by way of trade”, insert “and with the intention of obtaining a commercial advantage or profit”.
180 At the end of subsection 135AS(1)
Add:
Note: See section 135AL for the definition of profit.
181 After subsection 135AS(1)
Insert:
Offence in relation to use of broadcast decoding devices for
commercial advantage etc.
(1A) A person commits an offence if:
Note: See section 135AL for the definition of profit.
Offence in relation to distribution of encoded broadcast that has been accessed without authorisation
(1B) A person commits an offence if:
(iii) the channel provider who supplies the broadcaster with the channel for the broadcast.
Note: See section 135AL for the definition of channel provider.
182 Subsection 135AS(2)
Omit “Subsection (1)”, substitute “This section”.
Note: The following heading to subsection 135AS(2) is inserted “Defence relating to law enforcement and national security”.
183 After subsection 135AS(3)
Insert:
(3A) In a prosecution for an offence against this section, the burden of proving that any advantage, benefit or gain does not result from, or is not associated with, any private or domestic use of any copyright material is on the prosecution.
Note: The following heading to subsection 135AS(3) is inserted “Burdens of proof”.
184 Subsection 135AS(4)
After “subsection (1)”, insert “, (1A) or (1B)”.
Note: The following heading to subsection 135AS(4) is inserted “Penalty for contravening section”.
185 Application
The amendments made by this Part apply in respect of encoded broadcasts made after the day on which this item commences.
Part 10—Reproductions
Copyright Act 1968
186 Subsection 10(1) (definition of material form)
Repeal the definition, substitute:
material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).
187 At the end of section 10
Add:
188 After section 43A
Insert:
43B Reproduction of works as part of a technical process of use
189 After section 111A
Insert:
111B Reproduction of subject-matter as part of a technical process of use
190 Application
The amendments made by this Part apply in respect of acts done after the day on which this item commences.
Part 11—Limitation on remedies available against carriage service providers
Copyright Act 1968
191 After Division 2 of Part V
Insert:
Division 2AA—Limitation on remedies available against carriage service providers
Subdivision A—Preliminary
116AA Purpose of this Division
(1) The purpose of this Division is to limit the remedies that are available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers. A carriage service provider must satisfy certain conditions to take advantage of the limitations.
Note 1: Subdivision B contains a description of the relevant activities.
Note 2: Subdivision C contains details of the limitations on remedies.
Note 3: Subdivision D sets out the conditions that must be satisfied for a carriage service provider to take advantage of the limitations. The limitations are automatic if a carriage service provider complies with the relevant conditions.
(2) This Division does not limit the operation of provisions of this Act outside this Division in relation to determining whether copyright has been infringed.
116AB Definitions
In this Division:
caching means the reproduction of copyright material on a system or network controlled or operated by or for a carriage service provider in response to an action by a user in order to facilitate efficient access to that material by that user or other users.
financial benefit, in relation to a carriage service provider, does not include a benefit that merely results from the level of activity on the carriage service provider’s system or network.
Subdivision B—Relevant activities
116AC Category A activity
A carriage service provider carries out a Category A activity by providing facilities or services for transmitting, routing or providing connections for copyright material, or the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections.
116AD Category B activity
A carriage service provider carries out a Category B activity by caching copyright material through an automatic process. The carriage service provider must not manually select the copyright material for caching.
116AE Category C activity
A carriage service provider carries out a Category C activity by storing, at the direction of a user, copyright material on a system or network controlled or operated by or for the carriage service provider.
116AF Category D activity
A carriage service provider carries out a Category D activity by referring users to an online location using information location tools or technology.
Subdivision C—Limitations on remedies
116AG Limitations on remedies
Relevant conditions must be satisfied
(1) A carriage service provider must satisfy the relevant conditions set out in Subdivision D before the limitations in this section apply.
General limitations
(2) For infringements of copyright that occur in the course of carrying out any of the categories of activities set out in Subdivision B, a court must not grant relief against a carriage service provider that consists of:
Category specific limitations
Relevant matters
(5) In deciding whether to make an order of a kind referred to in subsection (3) or (4), a court must have regard to:
burdensome. The court may have regard to other matters it considers relevant.
Subdivision D—Conditions
116AH Conditions
(1) This table sets out the conditions for each of the categories of activities.
Conditions
Item Activity Conditions
1 All categories 1. The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.
2. If there is a relevant industry code in force—the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material.
2 Category A 1. Any transmission of copyright material in carrying out this activity must be initiated by or at the direction of a person other than the carriage service provider.
2. The carriage service provider must not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process.
3 Category B 1. If the copyright material that is cached is subject to conditions on user access at the originating site, the carriage service provider must ensure that access to a significant part of the cached copyright material is permitted only to users who have met those conditions.
2. If there is a relevant industry code in force—the carriage service provider must comply with the relevant provisions of that code relating to:
Conditions
Item Activity Conditions
4 Category C 1. The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity. A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.
5 Category D 1. The carriage service provider must not receive a financial benefit that is directly attributable to the infringing activity if the carriage service provider has the right and ability to control the activity. A financial benefit is to be regarded as directly attributable to the infringing activity only if the carriage service provider knew or ought reasonably to have known that an infringement of copyright was involved.
(2) Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1).
116AI Evidence of compliance with conditions
If a carriage service provider, in an action relating to this Division, points to evidence, as prescribed, that suggests that the carriage service provider has complied with a condition, the court must presume, in the absence of evidence to the contrary, that the carriage service provider has complied with the condition.
Subdivision E—Regulations
116AJ Regulations
Note: If a body corporate is convicted of an offence against regulations made under this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose fines of up to 5 times the penalty stated above.
Telecommunications Act 1997
192 At the end of section 115
Add:
(4) The rule in subsection (1) does not apply to an industry code made for the purposes of Division 2AA of Part V of the Copyright Act 1968.
Schedule 10—Broadcasting amendments
Broadcasting Services Act 1992
1 At the end of section 122
Add:
(5) The ABA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in section 9 of the Broadcasting Services (Australian Content) Standard 1999 as in force on 4 August 2004.
Note: Section 9 of the Broadcasting Services (Australian Content) Standard 1999 deals with quotas for Australian television programs.
(6) The ABA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in section 5 of
Television Program Standard 23—Australian Content in Advertising as in force on 4 August 2004.
Note: Section 5 of Television Program Standard 23—Australian Content in Advertising deals with quotas for Australian television advertisements.
[Minister’s second reading speech made in— House of Representatives on 23 June 2004 Senate on 3 August 2004]
(110/04)