Copyright Amendment Act (No. 1) 1998

The Copyright Amendment Act (No. 1) 1998 is a Commonwealth amending Act. It does not operate as a standalone copyright code. Instead, it changed the Copyright Act 1968 across 10 schedules dealing with employed journalists' copyright, labelling and packaging of imported goods, conversion and detention, copying for government services, people with an intellectual disability and people with a print disability, copying by institutions, the Copyright Tribunal, imported copies of copyright material, educational institutions and minor amendments.

For many businesses, the most practical parts are the changes about staff-created publishing content, imported labels and packaging, remedies involving infringing copies and devices, and government copying arrangements. But the other schedules should not be ignored altogether. They show that the Act also touched disability access, institutional copying, education and Tribunal processes, which may matter for businesses working with schools, libraries, disability service providers, collecting societies or government bodies.

The Act received Royal Assent on 30 July 1998. Under section 2(1), the general rule is that the Act commenced on the day it received Royal Assent. Section 2(2) then creates a delayed commencement for specific items only. Those items are items 6, 8, 10 and 12 in Schedule 2, and item 12 in Schedule 8. They commenced at the end of 18 months after 30 July 1998.

Counting 18 months from 30 July 1998 takes those delayed items to 30 January 2000. That date matters if you are reviewing older imports, legacy disputes or historical conduct and need to know whether a particular amendment was already in force. For most current business decisions, the more important step is to confirm the present wording of the Copyright Act 1968 as later amended.

This Act can affect a wide range of organisations, but not every schedule will matter to every business. Publishers and media businesses are directly in scope for the employed journalists changes. Importers, wholesalers, retailers, manufacturers and brand owners are directly in scope for the imported accessories changes if they bring in goods with packaging, labels, instructions, warranties or instructional media. Copyright owners and distributors may be directly affected by the conversion and detention amendments if they are dealing with infringing stock or copying devices. Governments, collecting societies and rights administrators are directly affected by the government copying framework.

Some businesses will be outside the main practical impact of particular schedules. For example, if your business does not employ journalists or similar editorial staff, the employed journalists provisions may not be central. If you do not import goods with copyright material attached or included, the imported accessories provisions may be less relevant. If you do not deal with government copying, collecting societies, educational institutions or disability access services, those schedules may only matter indirectly. Even so, businesses should be careful about assuming they are out of scope. A software manual, product insert, training film or archived print content can bring the Act into play unexpectedly.

Schedule 1 replaced subsection 35(4) of the Copyright Act 1968. The new rule applies if a literary, dramatic or artistic work is made by the author under the terms of employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and the work is made for the purpose of inclusion in that publication.

Where those conditions are met, the author owns copyright only so far as the copyright relates to two specified categories. The first is reproduction of the work for the purpose of inclusion in a book. The second is reproduction of the work in the form of a hard copy facsimile, other than one made as part of a process of transmission, made from a paper edition of, or from another hard copy facsimile made from a paper edition of, an issue of the newspaper, magazine or similar periodical. That second category does not include reproduction by the proprietor for a purpose connected with publication of the newspaper, magazine or similar periodical. Except for those specified areas, the proprietor owns the copyright.

The Act also inserted a definition of hard copy facsimile and clarified in subsection 35(5)(a) that the reference to a photograph is a photograph for a private or domestic purpose. It added that private or domestic purpose includes a portrait of family members, a wedding party or children. The application clause says the Schedule 1 amendments apply only in relation to works made after commencement of that schedule.

For business owners, the practical issue is that ownership is not simply all with the employer or all with the employee. It depends on the type of work, the employment relationship, the publication context and the particular form of reuse. If your business republishes archived staff-created content in books, commemorative editions or hard copy facsimiles, chain of title should be checked carefully.

Schedule 2 is one of the most commercially important parts of the Act for importers and product businesses. It introduced the concept of an accessory in relation to an article. The definition is broad. It includes a label affixed to, displayed on, incorporated into the surface of, or accompanying, the article; the packaging or container in which the article is packaged or contained; a label on that packaging or container; a written instruction, warranty or other information provided with the article; and a record embodying an instructional sound recording, or a copy of an instructional cinematograph film, provided with the article.

The definition also has exclusions. It does not include any label, packaging or container on which the Olympic symbol is reproduced within the meaning of the Olympic Insignia Protection Act 1987. It also does not include a manual sold with computer software for use in connection with that software.

Schedule 2 also inserted the concept of a non-infringing accessory. In broad terms, this means an accessory made in a Berne Convention country, or in a World Trade Organization member country with laws consistent with the TRIPS Agreement in the way described by the Act, where the relevant making of the copy, reproduction, record or film was authorised by the owner of the copyright in that country.

The practical effect is significant. New sections 44C and 112C provide that copyright in a work, published edition, cinematograph film or sound recording embodied in a non-infringing accessory is not infringed by importing the accessory with the article. The Act also adjusts sections 37, 38, 102 and 103 to fit this framework. Importantly, for certain accessories made without the licence of the copyright owner in the country where the copy was made, the usual wording about the importer knowing or reasonably having to know is removed for the relevant provisions. That means an importer cannot safely assume that lack of knowledge will always protect them.

For businesses, this is a supply-chain issue as much as a legal issue. Copyright risk can sit in labels, inserts, warranty cards, instruction sheets, training discs and product films, not just in the goods themselves. If those materials were not properly authorised overseas, the importer may face exposure. If they do qualify as non-infringing accessories, importation with the article is protected in the way the Act sets out.

Schedule 3 expanded the conversion and detention framework in section 116. It inserted a definition that device includes a plate. It then replaced subsection 116(1) so that the owner of copyright in a work or other subject-matter may bring an action for conversion or detention in relation to an infringing copy or a device used or intended to be used for making infringing copies.

The court may grant all or any remedies available in such an action as if the copyright owner had been the owner of the infringing copy since the time the copy was made, or the owner of the device since the time when it was used or intended to be used for making infringing copies. Relief in conversion or detention is additional to relief the court may grant under section 115. But the court is not to grant relief in conversion or detention if the relief granted or proposed under section 115 is, in the court's opinion, a sufficient remedy.

The Act also tells the court what it may consider. In deciding whether to grant relief and in assessing damages, the court may have regard to expenses incurred by a defendant who marketed or otherwise dealt with the infringing copy, whether those expenses were incurred before or after sale or disposal, and any other relevant matter. If only part of an article infringes copyright, the court may also consider the importance of the infringing material to the market value of the article, the proportion the infringing material bears to the article, and the extent to which it may be separated from the article.

The application clause says these amendments do not apply to an action for conversion or detention brought before commencement of Schedule 3. For businesses, this area matters when dealing with infringing stock, printing plates, moulds, duplication equipment or other devices linked to copying. It is not just a question of whether infringement occurred. It can also become a question about possession, detention, recovery and the right remedy to seek.

Schedule 4 introduced a more structured framework for copying done for the services of the Commonwealth, States and Territories. It added Tribunal procedures and a collecting society model for government copies. The Act inserted interpretation provisions, application procedures to the Tribunal, rules for declaring and revoking collecting societies, and a method for working out equitable remuneration payable for government copies.

The Act says a company limited by guarantee may apply to the Tribunal for a declaration that it be a collecting society for the purposes of Division 2 of Part VII. The Tribunal may declare or reject the application after hearing the parties, but only if the statutory conditions are met. Those conditions include matters about incorporation, membership eligibility, prohibition on dividends, and adequate rules for collection, administrative costs, distribution, trust holding for non-members and member access to records. Declarations must specify their effective day and be published in the Gazette. There are also provisions for revocation, amendment and time limits for decisions.

New sections 182B and 182C define key concepts including collecting society, copyright material, government and government copy, and identify the relevant collecting society. New section 183A provides that where the collecting society framework applies, the government must pay the relevant collecting society equitable remuneration for government copies made in a particular period, using a method agreed with the collecting society or, failing agreement, determined by the Tribunal. The method must take into account the estimated number of copies and specify the sampling system used to estimate them. Different treatment of different kinds or classes of government copies may be provided for.

Section 183B deals with payment and recovery. If equitable remuneration is not paid in accordance with the agreement or Tribunal order, the collecting society may recover it as a debt due in a court of competent jurisdiction. Section 183C gives the collecting society powers to carry out sampling, subject to written notice, timing rules and a government objection process based on reasonable grounds.

For many SMEs, this schedule matters indirectly rather than every day. It can affect businesses that license content to government, receive royalties through rights-management bodies, or administer rights on behalf of creators. If your business supplies copyright material into government systems, reporting and remuneration arrangements may be shaped by this framework.

The Act did more than deal with publishers, importers and government copying. Its table of contents shows further schedules covering people with an intellectual disability and people with a print disability, copying of works by institutions, the Copyright Tribunal, imported copies of copyright material, educational institutions and minor amendments.

Even where these areas are not central for most SMEs, they can still matter in practice. A business working with disability access services, educational providers, libraries, archives, training organisations or rights administration bodies may need to understand whether these amendments affect copying permissions, institutional practices or Tribunal procedures. Because the available detail here is much fuller for some schedules than others, the safest public explanation is to note their subject matter and direct readers to the current consolidated Copyright Act 1968 for the operative rules now in force.

The practical takeaway is simple. If your business sits near education, accessibility, institutional copying or copyright administration, do not assume this Act was only about importation and publishing. Check the current law in those areas before relying on a broad summary.

This Act shows how copyright issues often arise from ordinary business paperwork and operational habits. A publisher may have a problem because an employment agreement is silent on reuse. An importer may have a problem because no one checked whether the instruction booklet was authorised overseas. A rights holder may lose leverage because disputed items were not preserved properly. A business dealing with government may miss remuneration issues because it assumed copying was informal.

The most useful response is usually practical rather than theoretical. Map where copyright material enters the business, who created it, who authorised it, how it is supplied, and how it will be reused. Then make sure the documents match the workflow.

The best way to use this Act is as a historical map of what changed in 1998. It is especially useful when you are dealing with legacy publishing arrangements, old imports, archived content, long-running government supply relationships or disputes about conduct that happened around that time. In those situations, start with the date of the conduct, identify the relevant schedule and item, and then trace the amended provision in the Copyright Act 1968.

For present-day compliance, this Act is not usually the final answer. Copyright law changes over time, and later amendments may have altered the position again. Before changing contracts, launching a republication project, importing packaged goods or responding to an infringement dispute, check the current consolidated Copyright Act 1968 and get advice if the issue is commercially important.