Australia: The New Face Of Copyright Law In Australia

Last Updated: 28 June 2012
Article by Orana Swan and Charlotte Storey

The Copyright Act 1969 (Cth) has recently been given an overhaul to implement the recommendations of a number of copyright law reviews and Australia’s remaining obligations under the Australia-United States Free Trade Agreement.

The Copyright Amendment Act 2006 (Act) was passed late last year and introduces a number of changes to the Copyright Act, including new fair dealing defences, copyright infringement exceptions and offences and a new protection for technology protection measures.

The government decided against introducing a broad ‘fair use’ provision, similar to the regime existing in the United States. Instead, a new fair dealing defence for parody or satire and specific copyright exceptions were introduced.

New Parody and Satire Fair Dealing Defence

A new fair dealing defence for parody and satire has been introduced. A person will not infringe copyright in a literary, dramatic, musical work, sound recording, film or broadcast if it is for the purpose of parody or satire.

The Act does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.

New Exceptions to Copyright Infringement

The exceptions to copyright infringement under the Copyright Act have been expanded to reflect the way many people currently use and deal with copyright works.

The government ignored the requests of a number of groups representing copyright owners to introduce a levy scheme to compensate owners for use of copyright works by consumers under the new exceptions.

The new and amended exceptions include:

Time-Shifting

A person will not infringe copyright in a broadcast, or any work or other subject matter included in the broadcast, if they make a copy of the broadcast to be watched at a more convenient time. The previous exception only covered copyright in the television broadcast or sound broadcast—not the works comprised in the broadcast, such as a film.

The copy must be for the person’s own private and domestic use but can be watched outside their home. The copy can also be lent to a family or household member.

There is no requirement to delete or destroy the copy after it has been watched and no time limit on how long the copy can be kept.

Format-shifting

The Act introduced several exceptions for shifting a copy of a work from one format to another. A person may make:

  • a copy of a work contained in a book, newspaper or periodical publication
  • a copy of a photograph, and
  • a copy of a film (it must be an electronic copy made from a videotape).

The copy must be for private and domestic use and can be lent to a family or household member. The person must own the original copy and the exception will not apply if the person disposes of the original copy to another person.

The copy must not be in a different form to the form of the original copy. Any temporary copies made incidentally as part of the technical process of making the main copy are disregarded. However, if the temporary copy is not promptly destroyed, that copy will be taken to have infringed copyright in the original work.

Space-Shifting

A person may make a copy of a sound recording for their own private and domestic use. The person must own the original copy of the sound recording and the device on which the copy is made. The exception does not apply to recordings downloaded from an internet radio broadcast or similar program.

This means that people can now purchase music over the internet and download it to their MP3 player legally. Unlike the format-shifting exception, the copy may be in the same format as the original copy.

Research and Study

The concept of ‘reasonable portion’ for the exception for research and study has been clarified. A ‘reasonable portion’ of a work has been defined as 10 per cent of the work or one chapter for published material.

New Offences

A number of new indictable, summary and strict liability offences for copyright infringement have been introduced, including offences for:

  • making, selling, distributing or offering to sell or hire an infringing copy of an article
  • exhibiting a copy of an article in public or causing a sound recording or film to be heard or seen in public
  • possessing an infringing copy of an article with the intention of selling or hiring it, whether or not for a commercial advantage, and
  • making or possessing a device for making an infringing copy of an article.

The indictable offences are aimed at large commercial scale infringements of copyright with penalties of up to five years imprisonment. The summary offences apply to commercial scale infringements which are done negligently with penalties of up to two years imprisonment. The strict liability offences apply to individual infringements of copyright with penalties of up to $6,600.

Technological Protection Measures

A new civil and criminal liability regime has been introduced to protect copyright works against piracy. It is now an offence to manufacture, deal or use a device to circumvent a technological protection measure (TPM).

A TPM is a device, product or component which prevents unauthorised access to copyright materials.

For further detail on the new TPM regime, please refer to our November 2006 Intellectual Property article Technological protection measures: New protection against 'pirates of the copyright'?

Other Changes

The Act made a number of other amendments to the Copyright Act including:

  • amendments to the provisions concerning unauthorised access to encoded broadcasts
  • a person who merely receives a communication, for example, by clicking on a hyperlink, is not responsible for determining the content of the copyright material accessed online and is not considered to be electronically transmitting the material, and
  • proxy web caching on a server by educational institutions for educational purposes is allowed in certain circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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