2004

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

COPYRIGHT LEGISLATION AMENDMENT BILL 2004

EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney‑General,
the Honourable Philip Ruddock MP)

COPYRIGHT LEGISLATION AMENDMENT BILL 2004

GENERAL OUTLINE

The purpose of the Bill is to make various minor and clarifying amendments to the Copyright Act 1968 (the Act) and the US Free Trade Agreement Implementation Act 2004 (the USFTAI Act).  The amendments included in the Bill arise from consultations with key stakeholders on the amendments made to the Act by the USFTAI Act and on transitional provisions of the USFTAI Act relating to the extension of the term of copyright protection.  Passage of the Bill will also ensure that Australia fully complies with its obligations under the Australia-United States Free Trade Agreement (AUSFTA).  

In addition to amendments to items of the USFTAI Act relating to the extension of the term of copyright protection, the Bill also makes a number of amendments to provisions of the Act relating to criminal offences, presumptions, the exception to the reproduction right, and remedies available against carriage service providers.    
 
First, the Bill amends the Act to broaden the scope of some criminal offence provisions so that a prosecution is not required to establish that a person committed those offences ‘with the intention of obtaining a commercial advantage or profit’ in addition to ‘by way of trade’.  The effect of this amendment will be to broaden the scope of the offences to criminalise activity that occurs outside the trade context.  

The Bill also clarifies the scope of the offence in paragraph 132(1)(a) of the Act to make it clear that the offences regime applies to the making of infringing copies with the intention of obtaining a commercial advantage or profit.  This further strengthens the current offences regime in targeting activity such as ‘business end user piracy’.  

The Bill also amends criminal and civil presumption provisions in the Act to confirm that prima facie recognition of a person or corporation named in a label on a record or its container as the maker of the recording or the owner of the recording copyright does not imply that the person or corporation is the only maker or owner.

The Bill will also narrow the scope of the incidental copies exception to temporary copies made as a necessary part of the technical process of using a copy of a work or other subject matter.  The Bill provides that the exception is limited to ‘temporary’ copies made as a ‘necessary’ part of using a copy of a work or other subject-matter.  It ensures that the exception will not apply if the temporary copy is made from an infringing copy or, if the copy is made in another country, would be an infringing copy if it had been made in Australia.  In addition, the exception will not apply where the temporary copy results from a use that infringes copyright. Nor will it extend to further uses of the temporary copy beyond the original technical process in which it was made.
  
The Bill will also clarify provisions that limit the remedies available against carriage service providers.  The Act will be amended by deleting the definition of ‘financial benefit’ and the ‘knowledge’ clauses.  In place of the financial benefit definition, 
there will be a list of factors for a court to take into account in determining whether a financial benefit is directly attributable to an infringing activity. 

A further offence is included in Part VAA of the Act to criminalise activity involving the use of an encoded broadcast for commercial purposes where a person has received the broadcast from another person who has accessed the broadcast without authorisation.  

Finally, the Bill will amend the USFTAI Act to place a time limit of two years on the application of the transitional provisions relating to the extension of the term of copyright protection.

FINANCIAL IMPACT STATEMENT
The proposed amendments are expected to have no impact on Commonwealth expenditure or revenue. 

NOTES ON CLAUSES 
Clause 1	Short title 
This clause is a formal provision that provides for the Bill, when enacted, to be cited as the Copyright Legislation Amendment Act 2004.  
Clause 2 	Commencement 
Clause 2 provides for the commencement of the provisions of the Bill.  It does so by reference to a table set out in subclause 2(1).  Item 1 of the table provides that sections 1 to 3, and any other provisions not otherwise specifically referred to, commence on the day on which the Act receives the Royal Assent.  
Item 2 of the table provides that Schedule 1 of the Act is to commence on the later of (a) the start of the day on which the Act receives the Royal Assent, and (b) immediately after the commencement of the provisions covered by table item 2 in the table in section 2 of the USFTAI Act.  Under that table item, commencement occurs on the later of 1 January 2005 or the day on which the AUSFTA done at Washington DC on 18 May 2004 comes into force for Australia.  However the provisions do not commence if the AUSFTA does not come into force.  
Subclause 2(2) provides that column 3 of the table in subclause 2(1) may contain additional information that may be printed with the Act but such information is not part of the operative provisions of the Act.
Clause 3	Schedule(s)
By virtue of this clause, the provisions in the Acts specified in the Schedule are amended or repealed as set out in the Schedule and other items in the Schedule have effect according to their terms.  

Schedule 1—Amendments 

Copyright Act 1968

Item 1		Subsection 43B(1)

This item amends subsection 43B(1) by omitting the words “making of a reproduction” and replacing them with “making of a temporary reproduction”.  The purpose of the amendment is to limit the exception to a temporary reproduction.  

Item 2		Subsection 43B(1) 

This item amends subsection 43B(1) by omitting the words “made as part” and replacing them with “made as a necessary part”.  The purpose of the amendment is to further limit the exception to temporary reproductions incidentally made as a necessary part of a technical process of using a copy of the work.  

Item 3		Subsection 43B(2)

This item repeals existing subsection 43B(2) and replaces it with a provision that effectively incorporates the current exclusion of a reproduction made from an infringing copy of the work and adds  extra exclusions.  New sub-paragraph 43B(2)(a)(i) provides that the exception in subsection 43B(1) does not apply if the temporary reproduction is made from an infringing copy of the work.  Acknowledging that some temporary reproductions will be made from infringing copies of works outside Australia that are accessed online by a person in Australia, new sub-paragraph 43B(2)(a)(ii) provides that the exception also does not apply to a copy of the work where the copy is made in another country and would be an infringing copy if the person who made the copy had done so in Australia.  New paragraph 43B(2)(b) provides that the exception does not apply to the making of a temporary reproduction of a work as a necessary part of a technical process of using a copy of the work if that use constitutes an infringement of the copyright in the work.  

The item also inserts new subsection 43B(3) which further limits the exception in subsection (1).  It provides that the temporary reproduction exception does not apply to any subsequent use of a temporary reproduction of a work other than as part of the technical process in which the temporary reproduction was made.  

Item 4		Subsection 111B(1)

This item amends subsection 111B(1) by omitting the words “making of a reproduction” and replacing them with “making of a temporary copy”.  The purpose of the amendment is to limit the exception to a temporary copy.  

Item 5		Subsection 111B(1)

This item amends subsection 111B(1) by omitting ‘the reproduction’ and replacing it with ‘the temporary copy’ to make it consistent with the amendment in item 4.  

Item 6		Subsection 111B(1)

This item amends subsection 111B(1) by omitting the words “made as part” and replacing them with “made as a necessary part”.  The purpose of the amendment is to further limit the exception to temporary copies incidentally made as a necessary part of a technical process of using a copy of the subject-matter.  

Item 7		Subsection 111B(2)

This item repeals existing subsection 111B(2) and replaces it with a provision that effectively incorporates the current exclusion of a temporary copy made from an infringing copy of the subject-matter and adds an extra exclusion.  New sub-paragraph 111B(2)(a)(i) provides that the exception in subsection 111B(1) does not apply if the temporary copy is made from an infringing copy of the subject-matter.  Acknowledging that some temporary copies will be made from infringing copies of subject-matter outside Australia that are accessed online by a person in Australia, new sub-paragraph 111B(2)(a)(ii) provides that the exception also does not apply to a copy of the subject-matter where the copy is made in another country and would be an infringing copy if the person who had made the copy had done so in Australia.  New paragraph 111B(2)(b) provides that the exception does not apply to the making of a temporary copy of the subject-matter as a necessary part of a technical process of using a copy of the subject-matter if that use constitutes an infringement of the copyright in the subject-matter.  

The item also inserts new subsection 111B(3) which further limits the exception in subsection 111B(1).  It provides that the temporary copy exception does not apply to any subsequent use of a temporary copy of a work other than as part of the technical process in which the temporary copy was made.  

Item 8		Application of items 1 to 7

This item provides that the amendments made by items 1 to 7 apply in respect of acts done after the commencement date for the item specified in subclause 2(1) of the Bill.  

Item 9		Section 116AB (definition of financial benefit)

This item repeals the definition of financial benefit in section 116AB as a consequence of the amendment made by item 14. 

Item 10	Subsection 116AH(1) (table item 4, condition 1)

This item omits the second sentence of condition 1 in table item 4 (Category C activity) as a consequence of the amendment made by item 14. 

Item 11	Subsection 116AH(1)(table item 4, after condition 2)

This item inserts a new condition into table item 4 which sets out the conditions that must be met by a carriage service provider in order to qualify for the limitations on remedies set out in subsections 116AG(2) and (4).  These conditions are in addition to the general conditions set out in table item 1.  

Under new condition 2A the carriage service provider must act expeditiously to remove or disable access to copyright material residing on its system or network if it becomes aware that the material is infringing or becomes aware of facts or circumstances that make it apparent that the material is likely to be infringing.  

The item also states that in an action relating to whether or not the carriage service provider qualifies for the limitations on remedies available against it under Division 2AA, the carriage service provider does not bear any onus of proving a matter referring to its awareness of the infringing material as specified in paragraphs (a) or (b).  This has been included as a carriage service provider would in most cases be unable to tender evidence to support a proposition that it did not know of, or was not aware of, the infringing activity.  It is a matter for the copyright owner to establish, on the balance of probabilities, that the carriage service provider had the required state of knowledge before it was required to act expeditiously to remove or disable access.  Once this knowledge is established, the onus reverts to the carriage service provider who must establish that it acted expeditiously to take down the relevant material.  

Item 12	Subsection 116AH(1) (table item 5, condition 1)

This item omits the second sentence of condition 1 in table item 5 (Category D activity) as a consequence of the amendment made by item 14. 

Item 13	Subsection 116AH(1)(table item 5, after condition 2)

This item inserts a new condition into table item 5 which sets out the conditions that must be met by a carriage service provider in order to qualify for the limitations on remedies set out in subsections 116AG(2) and (4).  These conditions are in addition to the general conditions set out in table item 1.  

Under new condition 2A the carriage service provider must act expeditiously to remove or disable access to a reference residing on its system or network if it becomes aware that the copyright material to which it refers is infringing or becomes aware of facts or circumstances that make it apparent that the copyright material to which it refers is likely to be infringing.  

The item also states that in an action relating to whether or not the carriage service provider qualifies for the limitations on remedies available against it under Division 2AA, the carriage service provider does not bear any onus of proving a matter referring to its awareness of the infringing material as specified in paragraphs (a) or (b).  This has been included as a carriage service provider would in most cases be unable to tender evidence to support a proposition that it did not know of, or was not aware of, the infringing activity.  It is a matter for the copyright owner to establish, on the balance of probabilities, that the carriage service provider had the required state of knowledge before it was required to act expeditiously to remove or disable access.  Once this knowledge is established, the onus reverts to the carriage service provider who must establish that it acted expeditiously to take down the relevant material.  

Item 14	At the end of section 116AH

This item inserts new subsections to provide further guidance in relation to condition 1 in table item 4 (Category C activity) and table item 5 (Category D activity) in subsection 116AH(1).

New subsection 116AH(3) provides guidance to a court in determining whether a financial benefit is otherwise directly attributable to the infringing activity for the purposes of condition 1 in table item 4 or 5 in subsection 116AH(1).  The court may have regard to any matters it considers relevant but must have regard to the 2 matters specified.  The first matter is industry practice in relation to the charging of services by carriage service providers, including charging based on level of activity.  The second matter is whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practice.  

New subsection 116AH(4) provides that an act done by a carriage service provider in complying with the prescribed procedure referred to in condition 3 in table item 4 (Category C activity) does not constitute a failure to satisfy condition 2A in that item.  For example, the provision makes it clear that a carriage service provider that restores copyright material in accordance with the prescribed procedure referred to in condition 3 does not, in doing so, fail to satisfy condition 2A.
Item 15	At the end of section 130

This item inserts a new subsection 130(3) to confirm that prima facie recognition of a person or corporation named in a label on a record or its container as the maker of the recording or the owner of the recording copyright does not imply that the person or corporation is the only maker or owner.  It is a widespread industry practice to name the producer as the maker and copyright owner in such labels.  The USFTAI Act recognises performers as makers of their sound recordings and provides for sharing of the copyright between the producer and the performers, subject to any contractual arrangements.  Accordingly, there may be recordings in which the performers hold a share of the copyright, although this might not be reflected in copyright ownership notices on records or their containers.

Item 16	Application of item 15

This item provides that item 15 applies in respect of sound recordings whether copies are supplied to the public before or after the commencement date for the item specified in subclause 2(1) of the Bill.

Item 17  	Paragraph 132(1)(a)

This item inserts the phrase “or with the intention of obtaining a commercial advantage or profit” after the words “or hire” in paragraph 132(1)(a) of the Act.  Under the amended paragraph, a person will be guilty of an offence if they make an article for sale or hire or with the intention of obtaining a commercial advantage or profit if they know, or ought reasonably to know, the article to be an infringing copy of the work.  This will broaden the scope of the offence to cover the making of articles for certain commercial purposes in addition to those for sale or hire.  The purpose of the provision is to clarify that the offences regime in section 132 applies to all forms of activity referred to as ‘business end-user piracy’.

As with amendments made to offences in section 132 by the USFTAI Act, the definition of ‘profit’ in subsection 132(9) applies to that term in paragraph 132(1)(a) as amended. 

Item 18	Paragraphs 132(1)(b) and (c)

This item replaces “and” with “or” in paragraphs 132(1)(b) and (c).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offences in those paragraphs.  The effect of the amendment will be to broaden the scope of these offences to ensure that they apply to commercial infringements that do not occur in a trade context.  

Item 19	Subparagraph 132(1)(d)(i)

This item replaces “and” with “or” in subparagraph 132(1)(d)(i).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.  

Item 20	Subparagraph 132(1)(d)(ii)

This item replaces “and” with “or” in subparagraph 132(1)(d)(ii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.  

Item 21	Subparagraph 132(1)(d)(iii)

This item replaces “and” with “or” in subparagraph 132(1)(d)(iii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 22	Paragraph 132(2)(a)

This item replaces “and” with “or” in paragraph 132(2)(a).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 23	Paragraph 132(2A)(a)

This item replaces “and” with “or” in paragraph 132(2A)(a).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 24	Paragraph 132(2A)(b)

This item replaces “and” with “or” in paragraph 132(2A)(b).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 25	Paragraph 132(2A)(c)

This item replaces “and” with “or” in paragraph 132(2A)(c).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 26	Subparagraphs 132(5D)(b)(i) and (ii)

This item replaces “and” with “or” in subparagraphs 132(5D)(b)(i) and (ii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offences in those subparagraphs.  The effect of the amendment will be to broaden the scope of these offences to ensure that they apply to commercial infringements that do not occur in a trade context.

Item 27	Subparagraph 132(5DA)(b)(i)
 
This item replaces “and” with “or” in subparagraph 132(5DA)(b)(i).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that that it applies to commercial infringements that do not occur in a trade context.

Item 28	Subparagraph 132(5DA)(b)(ii)
 
This item replaces “trading and” with “trading or” in subparagraph 132(5DA)(b)(ii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial infringements that do not occur in a trade context.

Item 29	Application of items 17 to 28

This item provides that the amendments to the offences referred to in items 17 to 28 apply in respect of acts done after the commencement date for the item specified in subclause 2(1) of the Bill.  This ensures that the offences as broadened do not operate retrospectively.

Item 30	At the end of section 132B

This item inserts a new subsection 132B(3) to confirm that prima facie recognition of a person or corporation named in a label on a record or its container as the maker of the recording or the owner of the recording copyright does not imply that the person or corporation is the only maker or owner.  It is a widespread industry practice to name the producer as the maker and copyright owner in such labels.  The USFTAI Act recognises performers as makers of their sound recordings and provides for sharing of the copyright between the producer and the performers, subject to any contractual arrangements.  Accordingly, there may be recordings in which the performers hold a share of the copyright, although this might not be reflected in copyright ownership notices on records or their containers.

Item 31	Application of item 30

This item provides that item 30 applies in respect of sound recordings whether copies are supplied to the public before or after the commencement date referred to in subclause 2(1) of the Bill.

Item 32	Paragraph 135AS(1)(b)

This item replaces “and” with “or” in paragraph 135AS(1)(b).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 33	Paragraph 135AS(1)(c)

This item replaces “and” with “or” in paragraph 135AS(1)(c).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 34	Paragraph 135AS(1)(d)

This item replaces “and” with “or” in paragraph 135AS(1)(d).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 35	Subparagraph 135AS(1)(e)(i)

This item replaces “and” with “or” in subparagraph 135AS(1)(e)(i).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 36	Subparagraph 135AS(1)(e)(ii)

This item inserts “or” after “for trading” in subparagraph 135AS(1)(e)(ii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 37	Subparagraph 135AS(1)(e)(iii)

This item replaces “and” with “or” in subparagraph 135AS(1)(e)(iii).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that subparagraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 38	Paragraph 135AS(1A)(d)

This item replaces “and” with “or” in paragraph 135AS(1A)(d).  The purpose of this amendment is to address unintended consequences raised by amendments in the USFTAI Act which had the effect of narrowing the scope of the offence in that paragraph.  The effect of the amendment will be to broaden the scope of this offence to ensure that it applies to commercial activity involving a broadcast decoding device that does not occur in a trade context.

Item 39	After subsection 135AS(1B)

This item inserts a new subsection 135AS(1C) offence relating to the use of an encoded broadcast that has been accessed without authorisation.  Under this new provision, a person will commit an offence where a broadcast decoding device has been used to gain access to an encoded broadcast made by a broadcaster; the access is gained without the authorisation of the broadcaster; the person receives the broadcast that has been accessed by the device; the person knows the broadcaster had not authorised the access to the broadcast; and the person uses or authorises the use of, the broadcast by way of trade or with the intention of obtaining a commercial advantage or profit.  

The purpose of this offence is to ensure that the offences regime in Part VAA of the Act criminalises activity involving the use of an encoded broadcast for commercial purposes where a person has received the broadcast from another person who has accessed the broadcast without authorisation.  The person who has accessed the broadcast without authorisation and distributed it is likely to be committing the existing offence under subsection 135AS(1B) of the Act.  

As with amendments made to offences in section 135AS by the USFTAI Act, the definition of ‘profit’ in section 135AL applies to that term as used in paragraph 135AS(1C)(f).

Item 40	Subsection 135AS(4)

This item substitutes “(1B) or (1C)” for “or (1B)”.  The effect of this amendment is that a person who contravenes subsection 135AS(1C) is guilty of an offence punishable on summary conviction by a fine of not more than 550 penalty units and/or imprisonment for not more than 5 years.  This is the same penalty level for the offences in subsections 135AS(1), (1A) and (1B).  

Item 41	Application of items 32 to 40

This item provides that the amendments to the offences referred to in items 32 to 40 apply in respect of acts done after the commencement date for the item specified in subclause 2(1) of the Bill.  This ensures that the offences as broadened and new offences do not operate retrospectively.

US Free Trade Agreement Implementation Act 2004

Item 42 	Item 118 of Schedule 9 (heading)

This item amends the heading to item 118 so as to indicate more clearly that the agreements coming within the scheme are confined to a limited class.

Item 43 	After paragraph 118(1)(c) of Schedule 9

This item inserts a new paragraph 118(1)(ca) in Schedule 9 to the USFTAI Act.  The effect of its insertion is that if an agreement is to come within item 118(1), the act which is the subject or purpose of the agreement must be intended to be done within 2 years from the US FTA commencement day. The US FTA commencement day is defined in item 48 as the day on which the Australia-US Free Trade Agreement (AUSFTA) enters into force.

The broad effect of this amendment is to restrict the operation of the transitional scheme for which item 118 provides to acts agreed to be done in the 2 years following the entry into force of the AUSFTA.

Item 44 	Paragraphs 118(3)(a) and (4)(a) of Schedule 9

This item amends paragraphs 118(3)(a) and 4(a) of Schedule 9 to omit “compensation that is reasonable in all of the circumstances” and substitute “an amount of reasonable compensation”.  This amendment is consequential upon the clarifying, in item 45, of the meaning of “compensation”.

Item 45 	After subitem 118(4) of Schedule 9

This item inserts a new subitem 118(4A) in Schedule 9 to clarify that compensation referred to in items 118 and 119 of Schedule 9 may only include costs incurred by a person for the purposes of doing the act mentioned in paragraph 118(1)(c) and those incurred, or that may be incurred, by the person as a result of not being able to do that act. 

In restricting the subject of compensation to costs that have been incurred or may be incurred, the amendment clarifies that compensation cannot take into account any profit expected to have been made from doing the act, had the copyright owner not objected to it.

Item 46	Subitem 118(6) of Schedule 9 

This item amends subitem 118(6) of Schedule 9 by omitting “pay reasonable compensation” and substituting “pay an amount of reasonable compensation”. This amendment is consequential upon item 44.

Item 47	Paragraph 118(6)(a) of Schedule 9

This item inserts “and before the end of 2 years from the US FTA commencement day” after “ceased to subsist” in paragraph 118(6)(a) of Schedule 9.  This amendment is consequential on item 43 which restricts the operation of the transitional scheme for which item 118 provides to acts agreed to be done in the 2 years following the entry into force of the AUSFTA.  

Subitem 118(6) provides that where a copyright owner has not notified a person under subitem 118(2) or paid them reasonable compensation, the person can do the agreed act referred to in paragraph 118(1)(c) after copyright would, but for the extension of the copyright term, have expired.  As a result of the amendment the act must, to avoid infringing copyright, be done before the end of 2 years from the entry into force of the AUSFTA.

Item 48	Subitem 118(8) of Schedule 9

This item inserts a definition of “US FTA commencement day” as used in paragraphs 118(1)(c) and 118(6)(a).  It refers to the day on which the AUSFTA enters into force for Australia.

Item 49 	Subitem 119(1) of Schedule 9

This item amends subitem 119(1) of Schedule 9 by omitting “under item 118 for the determination of reasonable compensation” and substituting “under item 118 of this Schedule for the determination of an amount of reasonable compensation”.  It is a formal amendment consequential upon the amendment in item 44.

Item 50	Subitem 119(3) of Schedule 9

This item amends subitem 119(3) of Schedule 9 by omitting “the amount of compensation that it considers to be reasonable in all of the circumstances” and substituting “an amount of reasonable compensation”.  It is consequential upon the amendment in item 44.

Item 51	At the end of subitem 119(3) of Schedule 9

This item adds a note at the end of subitem 119(3) of Schedule 9. The note indicates that the amount of compensation that can be determined by the Tribunal is limited to that for certain costs, referred to in subitem 118(4A) inserted by item 45.

Item 52 	Item 132 of Schedule 9 (heading)

This item amends the heading to item 132 so as to indicate more clearly that the agreements coming within the scheme are confined to a limited class.

Item 53 	After paragraph 132(1)(c) of Schedule 9

This item inserts a new paragraph 132(1)(ca) in Schedule 9.  The effect of its insertion is that if an agreement is to come within item 132(1), the act which is the subject or purpose of the agreement must be intended to be done within 2 years from the US FTA commencement day. The US FTA commencement day is defined in item 55 as the day on which the AUSFTA enters into force.

The broad effect of this amendment is to restrict the operation of the transitional scheme for which item 132 provides to acts agreed to be done in the 2 years following the entry into force of the AUSFTA.

Item 54 	Paragraphs 132(3)(a) and (4)(a) of Schedule 9

This item amends paragraphs 132(3)(a) and (4)(a) of Schedule 9 to omit “compensation that is reasonable in all of the circumstances” and substitute “an amount of reasonable compensation”. This amendment is consequential upon the clarifying, in item 55, of the meaning of “compensation”.

Item 55 	After subitem 132(4) of Schedule 9

This item inserts a new subitem 132(4A) in Schedule 9 to clarify that compensation referred to in items 132 and 133 of Schedule 9 may only include costs incurred by a person for the purposes of doing the act mentioned in paragraph 132(1)(c) and those incurred, or that may be incurred, by the person as a result of not being able to do that act. 

In restricting the subject of compensation to costs that have been incurred or may be incurred, the amendment clarifies that compensation cannot take into account any profit expected to have been made from doing the act, had the copyright owner not objected to it.

Item 56	Subitem 132(6) of Schedule 9 

This item amends subitem 132(6) of Schedule 9 by omitting “pay reasonable compensation” and substituting “pay an amount of reasonable compensation”. This amendment is consequential upon item 54.

Item 57	Paragraph 132(6)(a) of Schedule 9

This item inserts “and before the end of 2 years from the US FTA commencement day” after “ceased to subsist” in paragraph 132(6)(a) of Schedule 9.  This amendment is consequential on item 50 which restricts the operation of the transitional scheme for which item 132 provides to acts agreed to be done in the 2 years following the entry into force of the AUSFTA.  

Subitem 132(6) provides that where a copyright owner has not notified a person under subitem 132(2) or paid them reasonable compensation, the person can do the agreed act referred to in paragraph 132(1)(c) after copyright would, but for the extension of the copyright term, have expired.  As a result of the amendment the act must, to avoid infringing copyright, be done before the end of 2 years from the entry into force of the AUSFTA.

Item 58	Subitem 132(8) of Schedule 9

This item inserts a definition of “US FTA commencement day” as used in paragraphs 132(1)(c) and 132(6)(a). It refers to the day on which the AUSFTA enters into force for Australia.

Item 59	Subitem 133(1) of Schedule 9

This item amends subitem 133(1) of Schedule 9 by omitting “under item 132 for the determination of reasonable compensation” and substituting “under item 132 of this Schedule for the determination of an amount of reasonable compensation”.  It is a formal amendment consequential upon the amendment in item 54.

Item 60	Subitem 133(3) of Schedule 9

This item amends subitem 133(3) of Schedule 9 by omitting “the amount of compensation that it considers to be reasonable in all of the circumstances” and substituting “an amount of reasonable compensation”.  It is consequential upon the amendment in item 54.

Item 61	At the end of subitem 133(3) of Schedule 9

This item adds a note at the end of subitem 133(3) of Schedule 9. The note indicates that the amount of compensation that can be determined by the Tribunal is limited to compensation for certain costs, referred to in subitem 132(4A) inserted by item 55.