On March 4, 2001 the the Copyright Amendment (Digital Agenda) Act 2000 came into effect amending the Australian Copyright Act 1968. The new Act implements the WIPO Copyright Treaty (See our July 1997 Newsletter) and primarily affects five areas: the broad right of communication to the public; the extension of special exceptions for libraries and educational institutions into the digital environment; the imposition of sanctions against the circumvention of technological protection measures and broadcast decoder devices; the imposition of sanctions against tampering with rights electronic management information; the payment equitable remuneration for the retransmission of free-to-air broadcasts; and the enactment of provisions dealing with the liability of Internet service providers (ISPs) and telecommunications carriers for infringement of copyrighted materials. The New Act also makes it clear that a copyright owner has the exclusive right to convert copyrighted material into electronic form as part of the existing exclusive reproduction right.

Under the new Act, the right of the copyright owner to control communication of a work in which he or she owns the copyright now applies to both active and passive communications and so extends the right of communication beyond the 1968 Act's limitation to broadcast by wireless means and transmission to cable by subscribers to include making material available to be viewed or downloaded. This right applies to material communicated from Australia, even if it the material is only accessible overseas.

Educational institutions and libraries are now permitted to digitize printed material and to reproduce and communicate digital material for the same purposes that they could photocopy under the 1968 Act (i.e., for research and study, journalism and criticism). Libraries are also entitled to make materials available in digital form on their premises for administrative purposes.

The new Act permits the imposition of Criminal and Civil Penalties for Circumvention of Technological Copyright Protection Measures and Tampering With Electronic Rights Management Information.

The new Act permits the imposition of criminal penalties against and further provides civil remedies against a person who makes, sells, imports, promotes or otherwise distributes devices and/or services that circumvent technological copyright protection measures (e.g. decryption software). The owner or exclusive licensee of the copyright may bring an action against the person under the presumption that the person knew or ought reasonably to have known that the device or service would be used to circumvent, or facilitate the circumvention of, a technological prevention measure. An exception is made if the recipient of the device or service makes a written declaration that the device or service is being implemented solely for a "permitted purpose". A "permitted purpose" includes activities constituting statutory fair use by libraries, educational institutions, governments and software decompilers. There are also criminal penalties and civil remedies enacted for manufacturing or dealing in devices that enable unauthorized reception of encoded subscription broadcasts such as pay TV signals.

The Act also provides sanctions against tampering with electronic right management information. Such information constitutes information that is attached to or embodied in digital material that identifies the material and its author or copyright owner or relates the terms or conditions of use.

Copyright owners in the broadcasts themselves (as opposed to copyright owners of the underlying programs) are to have a broad communication right that replaces the limited wireless re broadcast right authorized by the 1968 Act. As a consequence, TV operators will now be required, under a statutory licensing regime, to pay equitable remuneration to owners of copyright in material contained in free-to-air broadcasts which they re-transmit.

The statutory licensing regime does not apply to re-transmissions via the Internet. It is, however, necessary to obtain permission from the rights holder in the relevant copyright material (i.e., both the broadcaster and the right holders in the underlying programs) to re-transmit via the Internet.

The Act also clarifies the law on liability for copyright infringement as it applies to network service providers such as telecommunications carriers, ISPs and data storage operators. A person infringes a copyright not only if he makes an unauthorized reproduction or communication, but also if he authorizes infringing actions. In deciding whether a person authorized infringing acts, three elements are taken into consideration: the extent of the person's power to prevent the act concerned; the nature of the relationship between the person and the actor; and whether the person took reasonable steps to prevent or avoid the act.

Furthermore, a person who provides facilities will not be held to have authorize a copyright infringement merely because the infringer used the facilities for infringing activities. The Act clarifies that a communication other than a broadcast is made by the person responsible for the communication and not by the carrier or ISP. Thus, a website operator, and not the ISP, is subsequent to a copyright owner's communication rights and is primarily liable for any infringement.

The Act further clarifies that Internet browsing does not subject the browser to liability for infringement. Copyright is not infringed by making a temporary copy when making or receiving a communication, provided that the making of the communication itself is not an infringement.