.I.ntef'national News

nte.rnational News

·,AustraliaNew anti-circurnventionlawsto be tested

In the first test of Australia's new anti­

circumvention laws, Sony has brought an

action in relation to computer gamesdesigned for use with its PlayStation com­

puter console. The new laws, introducedinto the Copyright Act in March this year,give copyright owners the right to preventthe sale, manufacture and importation ofdevices for circumvention of"technologicalprotection measures".

Sony alleges that computer programswithin its PlayStation games are proteetedby an access code which is designed to

inhibit infringement, and that the code is atechnological protection measure withinthe meaning of the legislation. Sony furtheralleges that the defendant has sold devices

which have no purpose or use, or only aIimited purpose or use, other than thecircumvention of its protection measures.

In an interesting development, theAustralian Competition and ConsumerCommission (the national competition

and consumer watch-dog) has beengranted leave to appear as amicus curiae

in the case. The ACCC argued that itwished to make submissions on importantquestions of construction that arise con­cerning the anti-circumvention provi­sions. It also submitted that it could assistthe Court to understand the nature of

the deviçe that Sony alleges is being cir­cumvented. Sony objected to the ACCC'sapplicadon. Dne reason advanced for itsobjection was that an amicus curiaeshould not be appointed on the expressinstructions of a party to the proceedingsand, in this case, the ACCC made its

application following a written request forassistance by the defendant. In grantingthe ACCC leave to appear, the Court saidthat the anti-circumvention provisions in­volve difficult questions of constructionthat have not been the subjeet of detailedconsideration in Australia and these

questions may prove to be of generalpublic significance. The Court went on tosay that the "ACCC is therefore likely toprovide substantial assistance to theCourt, of a kind that otherwise might not

be available, on legal issues potentially of

general importance".The judgment in the ACCC's

application (Kabushikj Kaisha Sony Computer

Entertainment v Stevens [200/) FCA /379) is

available at http://scaleplus.law.gov.au/htmVfed­dedO/200 13/0/FD004490.htm

In conjunction with the Federal

Government,Australian copyright collectingsocieties are working on acode of conduetcovering matters including:

distribution of remuneration and

Iicense fees;

collecting society expenses;governance and accountability;staff training; andcomplaints and disputes.

The development of acode was arecommendation of the House of

Representatives Standing Committee onLegal and Constitutional Affairs in its 1998

report on music licensing.Copies of the draft code are available

from some of the collecting societies' web­sites, including: http://www.apra.com.au.http://www.copyright..com.auhttp://www.screen.org

Collecting society appointedto administer retransmissionlicence

The Federal Government has appointedScreenrights, the audio visual copyright

colleeting society, to administer the newstatutory Iicense for the retransmission offree-to-air broadcasts. The Copyright Actwas amended in March this year toprovide for the payment of royalties toowners of copyright in material included inbroadcast programs when those programsare retransmitted on pay TV. Prior to

this amendment, pay TV operators could

retransmit programs for free.Screenrights will enter into negotiations

with pay TV operators regarding the royal­ties payable and will appoint an independentexpert to oversee consultations regardingthe allocation of royalties among the variousrightsholders.

For more information, see Screenrights'web site (www.screen.org).

© Virginia Morrison, 200 I.Australian Copyright Council.

.Brazil

Transfer pricing rules.Brazil is now discussing some changes to itslegislation related to Transfer Pricing.

The new BiII No. 4695 of May 16, 200 Iproposed by Deputy Nelson Proença wassent to the Foreign Relation and NationalDefense commission on May 30, 200 I forits appreciation.

Transfer Pricing in Brazil is presently ruledby Law 9,430 of December 27, 1996. Underthis law, intelleetual property rights areexpressly excluded from the applicability oftransfer pricing rules.

The proposed BiII however is includingintellectual property rights as subjectmatter of transfer pricing rules. However,

under Section 35 of the BiII,the total pay­

ment of royalties related to intellectualproperty rights must be less than 5 percent or less than IO per cent of the netsales. For companies that are receivingincentives under the t:echnology develop­ment program provided by the Law 8,661of 1993 are excluded from the applicabilityof transfer pricing.

If this BiII is passed and enacted by thePresident, ali companies that are presentlyengaged in Trademark, Patent, CopyrightLicenses, Technology Transfers or TechnicalAssistance Agreements must review theiragreements to be in compliance with thenew rules.

However this BiII would not revoke

previous laws that regulate the paymentand remittances of royalties related to

intelleetual property rights, and this topie isstill to be addressed by Congresso

© frica Aoki, 200'.

Moreira Lima, Royster & Ohno

Proposed arnendrnenttQlaw

The proposed amendment to copyrightlaw, in the first part mainly deals with theso-called super-treatment of nationalities.

This is designed to eliminate the unequal

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