Modernisation of the Australian Copyright Regulations

Wednesday 24 January 2018 @ 10.07 a.m. | IP & Media | Legal Research

Introduced in December 2017, the Copyright Regulations 2017 (“the regulations”) mark the first overhaul to Australia’s copyright regulations since 1969. The purpose of the regulations is to replace the original Copyright Regulations 1969 and Copyright Tribunal (Procedure) Regulations 1969, and therefore streamline and modernise the legislative copyright system in Australia. Released concurrently with the regulations are the Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017 (“TPM Regulations”).

Copyright Law in Australia

Copyright Law in Australia is regulated by the Copyright Act 1968 (“the Act”). This Act creates the processes and determines the scope of copyright law in Australia. Subsection 249(1) of the Act provides the Governor-General with the power to create regulations which are not inconsistent with the Act.

These regulations, formerly the Copyright Regulations 1969 and the Copyright Tribunal (Procedure) Regulations 1969, prescribe “all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act” (explanatory statement). This includes, but is not limited to, remedies for infringement of copyright, and provisions relating to copyright in original works and other subject matter.

The 1969 regulations are due to sunset on 1 April 2018 by operation of Part 4 of Chapter 3 of the Legislation Act 2003. As such, the Australian Government have created superseding regulations which consolidate and modernise the 1969 regulations.

Consultation

The 2017 regulations were introduced as the result of the Review of Copyright Regulations 1969 and the Copyright Tribunal (Procedure) Regulations 1969, conducted in September 2017, by the Department of Communication and the Arts. As part of the review, the exposure draft to the Copyright Regulations 2017 was released for public consultation on 11 September 2017. The focus of the consultation was on (15 December 2017):

Modern language
Red tape reduction
Simplified practices

A number of stakeholders made submissions on the exposure draft, including:

Australian Copyright Council
Australian Film & TV Bodies
APRA AMCOS
Foxtel
National Association for the Visual Arts (NAVA)
Universities Australia

The particular concerns raised by a number of submissions were highlighted in the explanatory statement to the regulation:

“A number of stakeholders raised concerns with the operation of Part 6 of the Regulations. These concerns went to matters of policy that are better addressed in the Government’s broader consideration of the safe harbour scheme in the Copyright Act.

Some stakeholders raised practical concerns about changes to Copyright Tribunal procedures in Part 11 of the 2017 Regulations. A number of amendments were made to Division 2 and 5 of Part 11 to address those concerns.

Educational and collecting societies raised practical concerns with new requirements in Division 3 of Part 11 of the 2017 Regulations. Amendments were developed in consultation with those stakeholders to address those concerns.

There was significant disagreement between stakeholders as to whether new technological protection measure exceptions in Part 7 of the Regulations met the requirements in subsection 249(4) of the Act. Some amendments were made to address creator and rights holder concerns, particularly in relation to whether the exceptions in section ^40 met the requirements in subsection 249(4) of the Act that the doing of the act that is the subject of the exception, be in relation to a particular class of work or other subject matter; before the Minister can make a recommendation to the Governor-General for additional TPM exceptions to be prescribed by regulations.”

The Regulations

The new regulations consolidate and modernise the 1969 regulations to accommodate for the new, digital age. The functions of the regulations are highlighted in the media release (12 September 2017) which introduced the exposure drafts to the public:

“The […] Regulations give detail to a number of matters in order to give effect to the Copyright Act, particularly in light of the successful passing of the Copyright Amendment (Disability Access and Other Measures) Act 2017 in June 2017. These include matters in relation to:

copyright in original works and other subject-matter;
remedies for infringement of copyright;
copying and communication of copyright material by educational institutions and other organisations;
procedures and documents relating to the Copyright Tribunal.

Additionally, the proposed Regulations also seek to update the existing regulations relating to:

notice requirements for copyright material and moral rights;
declaration requirements and procedures for libraries and archives;
other countries that the Copyright Act applies to;
making inquiries in relation to musical work;
limitations of remedies against carriage service providers;
exceptions regarding technological protection measures;
remedies for infringement;
retransmission of free-to-air broadcasts; and
infringement notices and forfeiture of infringing articles and devices.”

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