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