The Copyright Amendment Act 2006 - key changes to legislation

This note contains an overview of the key changes to copyright legislation introduced as a result of the Copyright Amendment Act 2006.

The Copyright Amendment Act 2006 was passed on 5 December 2006, and came into effect on 11 December 2006.

The amendments contain a number of important changes to copyright law relating to:

• private copying of sound recordings;
• copyright enforcement;
• technological protection measures;
• special exceptions for non-commercial activities by libraries and educational institutions;
• fair dealing for parody and satire; and
• the jurisdiction of the Copyright Tribunal.

COPYING SOUND RECORDINGS FOR PRIVATE AND DOMESTIC USE

There is a new limited exception for private copying of sound recordings.

The private copying exception allows consumers to make a copy of a legitimately acquired recording (either physical or digital) for private and domestic use, for playing on different devices owned by the consumer. This means that a consumer:

• can copy recordings from the consumer’s CDs onto the consumer’s iPod or MP3 player;
• can burn legitimately acquired digital files onto a CD for playing in the consumer’s stereo;
• can make more than one copy of a recording, provided each copy is used in a different device owned by the consumer. For example, the private copy may be played on the consumer’s PC, MP3 player or mobile phone.

There are a number of important limitations to the private copying exception. The exception does not:

• allow consumers to sell, give away (except to family), distribute, perform in public, or broadcast the private copies. If a consumer does any of these acts, the copy becomes an “infringing copy”;
• apply if a consumer makes the private copy from an illegitimate recording (eg. from a burnt CD or from peer to peer files); and
• allow consumers to share music online. Uploading or distributing music via the internet will continue to infringe rights holders’ communication rights.

A consumer also loses the benefit of the exception if they give away their original copy.

TIME SHIFTING

There is a new “time shifting” exception that allows consumers to record television and radio programs to view or listen to a program at a later time.

The time shifting exception does not permit the time shifted copy to be used over and over again. Consumers are also not able to sell or distribute the time shifted copies or cause the time shifted copy to be heard in public.

'FORMAT-SHIFTING' OF SOME FORMATS

Consumers can now scan a book, magazine or photograph owned by the consumer into digital form, for personal use. A consumer can also re-format a video owned by the consumer onto DVD format for personal use.

The consumers cannot, however, sell, distribute or give the format shifted copies away.

ENFORCEMENT

Criminal offences

The amendments introduce a tiered range of copyright offences: indictable, summary and strict liability. Different offences are available depending on the seriousness of the conduct.

The more serious offences are the indictable offences, which usually contain a knowledge element. For example, if a defendant knowingly engages in infringing conduct (for example, by deliberately selling infringing copies of recordings), the prosecution may charge the defendant with an indictable offence. The penalties for indictable offence are fines of up to $60,500 per offence for individuals (and up to five times more for corporations), or imprisonment for up to 5 years.

The summary offences in most circumstances contain the same elements as the indictable offences, but have a lower knowledge requirement. Summary offences also have lower penalties, usually up to $13,200 for individuals or up to 2 years imprisonment.

The strict liability offences are the least serious of the three enforcement options, and do not require the prosecution to prove knowledge or criminal intent. The strict liability offences are underpinned by an infringement notice scheme set out in the copyright regulations, which allows police to issue on the spot fines to offenders in appropriate cases. The infringement notice scheme is intended to provide a cost effective process for dealing with minor copyright crime.

Large scale commercial infringement

There are expanded remedies available for large scale online commercial infringement. As a result of the amendments, remedies for commercial scale online infringement will reflect both actual and likely infringements without the need to prove each and every infringement.

The amendments potentially increase the damages available for successful online infringement actions.

TECHNOLOGICAL PROTECTION MEASURES

The amendments to the Copyright Act also implement a number of Australia’s obligations under the Australia United States Free Trade Agreement relating to technological protection measures (TPMs).

As a result of the amendments, it is unlawful to use devices which unlock TPMs. Prior to the amendments, it was an offence to deal with devices that permitted circumvention of TPMs, but it was not an offence to use a TPM.

The amendments also change the definition of TPMs to include TPMs that which prevent or restrict access to copyright material in some circumstances. Previously, a TPM was only protected by law if it prevented copyright infringement.

NEW EXCEPTIONS FOR EDUCATIONAL INSTITUTIONS, LIBRARIES ETC

There is a new “special purposes” exception to copyright infringement for educational institutions and libraries that is intended to apply for limited non-commercial purposes.

The Act does not specify the circumstances in which the exception will apply. However, the provisions are not intended to override existing licensing schemes or practises. The Act states that the exceptions will only apply where the use by the institution does not conflict with the normal exploitation of copyright material and where the use does not unreasonably prejudice the legitimate interests of the copyright owner. Accordingly, the exception would be available if an institution is unable to obtain a licence because the copyright owner cannot be found, or because the copyright material is out of print.

FAIR DEALING FOR PARODY AND SATIRE

There is a new fair dealing defence for parody and satire. A parody transforms and comments on the copyright material itself, whereas a satire uses copyright material to draw attention to a more general comment on society.

The parody and satire fair dealing exception may allow users to copy extracts from recordings to make new recordings, if the new recording can be characterised as a parody or satire of the original recording, or makes a satiric comment on any issue.

COPYRIGHT TRIBUNAL

The jurisdiction of the Copyright Tribunal has expanded. The Copyright Tribunal now has jurisdiction in relation to any licence administered by a collecting society such as PPCA. Licensing activities of ARIA are not, however, within the jurisdiction of the Copyright Tribunal.

The amendments also include a number of changes relating to the role of the ACCC in Copyright Tribunal proceedings.