Author:	Hon Daryl Williams AM QC MP Attorney-General of Australia
Subjects:	Copyright (Other articles) Copyright -- Computer network resources (Other articles) Copyright -- Information storage and retrieval systems (Other articles) Intellectual property (Other articles) Patents (Other articles)
Issue:	Volume 4, Number 4 (December 1997)
Category:	Current Developments

INTRODUCTION

1. I am pleased to be here today to speak at this Copyright Law and Practice Symposium where so many key players in the field of copyright are present. I intend to speak today about the Goverment's current and future reforms to Australia's copyright laws.

2. This Government has an extensive copyright reform agenda - and is actively implementing those reforms in line with election commitments. Our online reforms - designed to keep pace with advances in new technologies - extend beyond copyright.

3. I am also responsible for Commonwealth legislative review and reform relating to privacy and criminal law - both of which raise important online legal policy issues - and I share responsibilities with other Ministers for electronic commerce and for encryption and censorship policies in the online environment.

4. I was recently appointed by the Prime Minister to the new Ministerial Council on the Information Economy and look forward to advancing consideration of the important online law reform issues in my portfolio through my work on the new Council.

5. I am keenly aware that copyright rights are illusory without effective enforcement measures.

6. For this reason, I will focus this morning on the Government's reform agenda in relation to enforcement of copyright.

   COPYRIGHT REFORM: IMPLEMENTING THE GOVERNMENT'S PROGRAM

7. The Government was elected to office on an election platform which included a comprehensive program of copyright law reform.

8. Several of the Coalition's election policies, including For Art's Sake a Fair Go!, Online Australia and Law and Justice, formed the basis of this Government's blueprint for copyright reform.

9. Since the election we have been very busy working to deliver on our promises to reform copyright.

10. Our most advanced copyright initiative is the Copyright Amendment Bill 1997 which has been passed by the House of Representatives and is currently before the Senate.

11. The major reform in the Bill is the introduction of a comprehensive scheme of moral rights for creators of works and films.

12. The Bill also rearranges the ownership of employed journalists' copyright and removes the controls on the parallel importation of copyright packaging and labelling of imported goods.

13. The Bill also contains other important amendments.

14. They include changes to the Government copying provisions, improved provisions for access to copyright materials for institutions assisting persons with a disability, and provision for more than one Deputy President to the Copyright Tribunal to improve its resources.

15. The Senate Legal and Constitutional Legislation Committee handed down its report on the Bill last week.

16. I am pleased to note that the Senate Committee's report is largely very supportive of the Government's Bill.

17. However the report's numerous recommendations will require detailed consideration by the Government, and that consideration is now taking place.

18. I mentioned earlier my general commitment to law reform to meet the challenges of technological developments.

19. My Department, jointly with the Department of Communications and the Arts, has released the Discussion Paper, Copyright Reform and the Digital Agenda, and has been consulting widely with interested parties on the proposals in the paper.

20. The Discussion Paper proposes a raft of important amendments to update the Copyright Act to take account of the online environment.

21. And as many of you would no doubt be aware, we have also kept faith with our election commitment to lower the prices of CDs for Australian consumers.

22. I will return to this decision and to the Digital Agenda paper a little later.

23. The Government has also looked beyond domestic copyright reform.

24. Effective and balanced international copyright standards are critical for copyright creators, owners and users in Australia.

25. In pursuit of improved international copyright standards, Australia actively participated in the World Intellectual Property Organisation (WIPO) Diplomatic Conference on copyright in December 1996 in Geneva.

26. This Government's endorsement of Australia's negotiating position at Geneva was its first decision on copyright.

27. I am happy to say that the two new treaties adopted at the Conference are largely consistent with our agreed negotiating position.

28. The Conference reaffirmed the important role that WIPO plays in international copyright standard-setting.

29. I therefore made a point of meeting the new WIPO Director General-designate, Mr Kamal Idris, when I was in Geneva earlier this year on other business.

30. On a domestic level, this Government is committed to a more workable Copyright Act.

31. When I became Attorney last year I reviewed and tightened the terms of the Copyright Law Review Committee's current reference to advise on simplifying the Copyright Act.

32. I consider that the Committee has an important - if unenviable - task, as copyright law is far from straightforward!

33. The Act is needlessly complex following the extensive patchwork amendments that have been made, and I await the CLRC report with great interest.

34. Also relevant to this Government's reform agenda is the Attorney-General's Department Internet website - Window on the Law - which I launched earlier this year.

35. The website fulfils an important part of this Government's promise to improve public access to the law.

36. I encourage the Internet "surfers" among you to visit the site. The internet address of the site is "http://law.gov.au"

    COPYRIGHT REFORM AND THE DIGITAL AGENDA

37. I turn now to the Copyright Reform and the Digital Agenda paper.

38. As I mentioned earlier, my Department, jointly with the Department of Communications and the Arts, is currently consulting on the proposals in the Digital Agenda Discussion Paper.

39. Essentially the paper proposes that two new rights should be added to the bundle of exclusive rights that copyright owners currently have, in order to improve copyright protection in the face of technological advances.

40. The first is a technology-neutral right of transmission to the public.

41. The new right would replace the existing, but limited, cable diffusion right and also the existing broadcasting right.

42. The second is a right of "making available" online to the public and is designed to squarely cover interactive uses of copyright material, such as offering access to copyright material on an Internet website.

43. The Discussion Paper also makes proposals for exceptions to the proposed new rights.

44. These are very important in keeping the right balance between adequate protection of copyright works on the Internet on the one hand and appropriate access by users of copyright material on the other hand.

45. The paper addresses the issue of who should be liable for infringements of copyright material on the Internet.

46. This is a vexed question particularly for Internet service providers.

47. As I indicated earlier, I will now focus on two of the enforcement measures in the discussion paper.

48. First, the paper proposes remedies for the abuse of "technological copyright protection measures".

49. Examples of "technological copyright protection measures" include electronic locks on computer programs and the "encryption", or, to put it more simply, the "high-tech" scrambling, of broadcast signals.

50. Currently, a copyright owner may have little recourse, or indeed no recourse at all, against people commercially distributing devices that are designed to get around electronic locks used by copyright owners to protect their material on the Internet.

51. The proposals in the Discussion Paper would rectify this unfair disadvantage to copyright owners.

52. The paper proposes various remedies for abuse of technological copyright protection measures.

53. Secondly, the paper proposes remedies against the abuse of "rights management information".

54. "Rights management information" refers to information that identifies the owner of the copyright and can also include details about the terms and conditions on which copyright material can be used.

55. There appears to be a commonly held view that everything on the Internet is "free" and is not subject to copyright protection.

56. Copyright owners can overcome this misinformation that cyberspace is a "lawless environment" by electronically attaching rights management information to the material that they put on the Internet.

57. The paper proposes that it would be a criminal offence to knowingly remove or tamper with rights management information that is electronically attached to copyright material.

58. This will be a very important enforcement tool for copyright owners in the online environment.

59. The great benefit of the proposals on rights management information is that there would be sanctions available if someone were to intentionally tamper with that important copyright identification.

60. I am extremely pleased with the feedback received in consultations thus far on the Discussion Paper.

61. I would particularly like to take this opportunity to thank the very many interests represented here today who have expended considerable resources in providing very helpful written submissions on the paper.

62. I understand that many of you have also taken time out of your busy schedules to meet with officers of my Department and the Department of Communications and the Arts to discuss the proposals in the paper.

63. I know that many of you are particularly interested in the timing for legislation implementing the reforms in the paper.

64. Although predicting timetables is always difficult and subject to change, I would expect to be able to release an exposure draft Copyright Amendment Bill 1998 for comment in the first quarter of 1998.

    GOVERNMENT'S CD PRICES DECISION - ANTI-PIRACY MEASURES

65. The decision by the Government to reduce CD prices for consumers by allowing parallel importation of sound recordings has received wide coverage.

66. It is perhaps less well known that the Government decided at the same time to increase piracy penalties and modernise the penalty provisions in the Copyright Act.

67. Increase in penalties and simplification of the penalties provisions

68. We are committed to a copyright system that works.

69. All offences, not just those for infringement of copyright in sound recordings, will be subject to fines of up to $55,000 for individuals and $275,000 for corporations.

70. This is a 10% increase in the existing maximum penalties.

71. We will retain the maximum term of 5 years' imprisonment for copyright violations by individuals.

72. The current complex distinctions between penalties for first and subsequent offences will be removed.

73. Maximum penalties for each infringing article will also be repealed. Consistent with our election commitment to a more workable Copyright Act, the proposed new maximum global penalties will greatly simplify the current regime which is unduly complicated.

74. We have also decided that the different maximum penalties for infringements related to films, which are in some cases 3 times the maximum penalties for other copyright offences, are no longer justified.

75. Accordingly, we have decided to align the penalties for offences relating to all copyright material.

76. Our decision to increase penalties for all copyright offences is an important anti- piracy reform.

77. It sends a clear message to copyright pirates and the courts and our trading partners that copyright offences are serious matters.

78. The new approach to penalties will give the courts greater discretion to decide upon the most appropriate penalties having regard to all the circumstances of the case.

79. The new global maximum penalties will enable the courts to recognise and reflect the gravity of the offences and give due weight to deterrence.

    Onus of proof in civil proceedings

80. The Government has also addressed the concerns of the sound recording industry that parallel importation of CDs will make it harder to take action against commercial dealings with pirated material.

81. The legislation to implement the CD prices decision will not require copyright owners in civil cases to prove that imported CDs are pirated.

82. On the contrary, the Government has decided that it will be up to the importer defending a civil action for unauthorised importation, to show that the imported CDs were legitimately made.

83. Thus the basic rule that commercial importation requires copyright clearance will remain.

84. What the decision means is that importation of legitimate copies is a defence to an action for infringement of that rule.

85. The role of Customs at the border is also significant in detecting and deterring copyright piracy.

86. In addition to the many other reforms that I outlined earlier, the Copyright Amendment Bill 1997 also contains amendments to streamline and improve the effectiveness of the border interception provisions in the Copyright Act.

87. These proposed measures to increase and modernise the penalties and enforcement procedures are substantive and wide-reaching.

88. They demonstrate our commitment to an effective and practical Act that looks after the legitimate interests of copyright owners.

    AUSTRALIA'S ROLE IN THE REGION

89. I am fully aware that copyright piracy is a global industry.

90. Copyright protection is therefore more than ever a global issue. Accordingly, strong copyright laws in Australia are only part of the picture.

91. The Government has taken steps to assist other countries to bring their copyright protection and enforcement regimes into line with the international norms of the Agreement on Trade-Related Aspects of Intellectual Property Rights or "TRIPs".

92. It is pleasing that this has not just been a Government activity and I acknowledge the contributions of copyright collecting societies, the Australian Copyright Council and other industry bodies represented here today.

93. We have worked bilaterally with a number of countries in this region, including Indonesia.

94. This may be expanded as more requests for assistance are received and considered.

95. We are working in Asia Pacific Economic Cooperation - APEC - on a number of projects that will assist enforcement in this region and we remain committed to appropriate enforcement standards in WIPO and WTO intellectual property treaties.

    FURTHER INITIATIVES IN 1998

96. I would like to briefly raise three other copyright initiatives under consideration - all of which play an important role in the Government's copyright reform agenda.

97. I hope to bring a submission to Government soon on computer software protection, responding to the CLRC's report in 1995.

98. Getting copyright protection for computer software right is crucial as computer software of course underpins the information and online economy.

99. I will also release a Discussion Paper on proposed new performers' rights soon, jointly with the Minister for Communications, the Information Economy and the Arts.

100. This is the paper that was foreshadowed in the Digital Agenda Discussion Paper.

101. And finally, I expect that consultations on the question of Australia's accession to the two new WIPO copyright treaties will soon be concluded.

102. I note that the response to the WIPO Copyright Treaty and parts of the WIPO Performances and Phonograms Treaty thus far has been very favourable, but consultations have not been completed.

103. The treaties have already attracted strong support internationally.

104. If Australia were to join, the great benefit would be that Australia's creators would enjoy improved protection in other member countries.

     CONCLUSION

105. In conclusion, I would like to recap on a number of points which may enhance your deliberations today on copyright law and practice.

106. The Government is well advanced in meeting its copyright reform commitments.

107. Legislation ushering in the first stage of these changes is currently before

108. Parliament and the Government remains on track with its promise to update copyright law for the new online environment, with the publication of the Digital Agenda Discussion Paper and the consultations on its proposals.

109. Copyright reform endeavours with regard to computer software and performers' rights are also on track.

110. Effective enforcement of copyright is central to copyright reform and I am therefore working on several fronts to ensure that the Copyright Act contains the most effective enforcement provisions for owners of copyright.

111. In the online environment, the Digital Agenda paper also proposes new criminal offences and civil actions to assist copyright owners to protect their copyright material in the digital environment.

112. And the Government's recent decision on CD prices includes important anti- piracy measures, notably, strengthening penalties for copyright offences.

113. We will continue to encourage improved copyright laws in the Asia-Pacific region, with a focus on enforcement.

114. This Government is continuing to take the lead on copyright reform. I wish you well in your deliberations here today and I look forward to continuing to work cooperatively with you all in implementing this Government's copyright reform agenda.

     Thank you.