Communications Update October 2005
02 November 2005- Parliament passes Film Directors’ Rights Bill
- New workplace surveillance law in action
- Legislation to protect submarine cables
- The Block in Federal Court copyright dispute
- New licensing structure for amateur radio
- Coonan announces digital radio policy framework
- Networking Australia in latest evaluation report
- The ACMA to monitor free-to-air coverage on anti-siphoning list
- ACIF releases new measures for handling threatening and unwelcome calls
- ACIF releases new cabling standards
- ACIF releases draft credit management code for public comment
- ACMA releases first telecommunications performance report
- CCC study reveals threat to personal information in workplaces
- DCITA releases digital take-up issues paper
- ACCC might authorise 2005 Direct Marketing Code of Practice
- Optus notifies the ACCC of Telstra access dispute
- Competition in corporate customer segment of telco industry unveiled
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Legislation
Parliament passes Film Directors’ Rights Bill
On 13 October 2005, parliament passed the Copyright Amendment (Film Directors’ Rights) Bill 2005 (Bill).
The Bill amends the Copyright Act 1968 and ensures that film directors can share in the commercial success of their films.
Until now, directors have only enjoyed the right to be named in connection with the use of their films.
Attorney-General Philip Ruddock welcomed the development as a ‘goal’ of Australian directors.
Further detail and a copy of the Bill is available at the ComLaw website.
New workplace surveillance law in action
On 7 October 2005, the Workplace Surveillance Act 2005 (NSW) (Act) came into force.
Principally, the Act prohibits the surveillance by employers of employees at work, unless at least 14 days written or emailed notice of the surveillance is given.
The Act applies to camera, computer and tracking surveillance.
Under the Act, employers may not block emails and internet access of employees at work other than in accordance with a notified policy.
The Act repeals and replaces the Workplace Video Surveillance Act 1998, which is applicable to video surveillance only.
Further detail and a copy of the Act is available at the Parliament of NSW website. Click here for a previous article on the Act.
Legislation to protect submarine cables
On 23 August 2005, the Australian Parliament passed the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 (Act).
The Act confers powers on the Australian Communications and Media Authority (ACMA) to declare protection zones for telecommunications cables in Australian waters.
Currently, eight out of nine submarine cables transmit around 99 per cent of Australia’s voice and data communications overseas, forming the basis of Australia’s ability to communicate with foreign jurisdictions and engage in international trade.
It is understood that fishing practices, anchoring and dredging threaten the viability of submarine cables.
Further detail and a copy of the Act is available at the Parliament of Australia website.
Cases
The Block in Federal Court copyright dispute
On 30 September 2005, Justice Tamberlin in the Federal Court delivered judgment in Nine Films & Television Pty Ltd v Ninox Television Limited.
Nine Films & Television Pty Ltd and Nine Network Australia Pty Ltd (Nine) sought relief under the Copyright Act for unjustifiable threats of copyright infringement and misleading and deceptive conduct (section 52) under the Trade Practices Act 1974 (Act).
Nine alleged that the first respondent, Ninox Television Limited (Ninox) and third respondent, Mr McEwen (McEwen), made unjustified threats alleging copyright infringement in the format of a home improvement television program, Dream Home. Nine also alleged that Ninox had breached section 52 of the Act through misrepresentations made to third parties that Nine had infringed copyright in the Dream Home format.
By amended cross-claim, Ninox admitted having made threats against Nine over Nine’s production and screening of The Block. Ninox argued that The Block infringed its worldwide distribution rights and joint ownership in the Dream Home format, and sought an injunction restraining Nine from producing and broadcasting the program.
The Block is a home improvement reality television competition, where couples compete for the highest bid at auction.
Nine aired the first series of The Block during 2003 and the second series during 2004.
Nine argued that The Block had no relevant or substantive connection to the Dream Home format because it was essentially a work of independent creation.
Tamberlin J rejected Nine’s claim under the Act, saying Ninox had not engaged in any section 52 conduct in making threats of copyright infringement against Nine.
Tamberlin J also rejected Ninox’s amended cross-claim and held there was insufficient resemblance between the productions of the two programs to justify a claim of substantial reproduction.
The matter was re-listed for determination as to orders, costs and further directions.
A copy of the decision is available on the Austlii website.
Regulatory developments
New licensing structure for amateur radio
On 19 October 2005, the Australian Communications and Media Authority (ACMA) announced the new licensing and certification structure for amateur radio (new licensing structure).
The new licensing structure aims to simplify operating conditions. Licence fees have not changed.
During the transition period, existing unrestricted, intermediate and limited licences will remain valid until replaced by an advanced licence. Thereafter, licence conditions for the unrestricted, intermediate and limited licences will be the same as those for the advanced licence.
According to the Amateur Licence Information Paper (paper), an amateur licence is issued for stations primarily operating for self-training, hobby and technical investigation purposes.
The new Radiocommunications Licence Conditions (Amateur Licence) Amendment Determination 2005 (No 1), contains the conditions of licence applicable to the amateur licence, including the type of communications permitted, with whom the operator is permitted to communicate and relevant transmission parameters.
Further details and a copy of the paper is available at the ACMA website.
Coonan announces digital radio policy framework
On 14 October 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced a framework to assist the implementation of digital radio in Australia.
Senator Coonan said that competition from other digital technologies, such as the internet and mobile telephones, meant the radio industry must ensure that the benefits of digital radio are promoted.
A staged rollout of digital radio services will commence as soon as practicable, commencing in metropolitan areas.
Digital radio will facilitate the delivery of novel services to consumers, such as a record and unwind facility and streamlined text with news and weather updates.
Further detail and a copy of the framework is available at the DCITA website.
Networking Australia in latest evaluation report
On 14 October 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced an evaluation of the Networking the Nation program (program), which seeks to bridge the technology gap between regional and remote Australia.
The evaluation is presented across four reports:
- a report outlining the social and economic impacts of the program
- a report detailing the assets and services the program has delivered across Australia
- an efficiency review appraising the program and comparing its administrative processes with Australian National Audit Office requirements, and
- a report rehashing key elements of the first three reports.
Further detail and copies of the reports is available at the DCITA website.
ACMA to monitor free-to-air coverage on anti-siphoning list
On 12 October 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, announced that the Australian Communications and Media Authority (ACMA) will monitor free-to-air coverage of events on the anti-siphoning list from 1 January 2006.
Broadly, the anti-siphoning scheme seeks to maximise free-to-air coverage of listed events, by giving priority to broadcasters in the acquisition of broadcast rights of events which the minister has labelled as being of national importance and cultural significance.
Further detail is available at the DCITA website.
ACIF releases new measures for handling threatening and unwelcome calls
On 11 October 2005, the Australian Communications Industry Forum (ACIF) released for public comment a revised code called DR ACIF C525:2005 Handling of Life Threatening and Unwelcome Calls Industry Code (Code).
The Code updates the standard procedure by which life threatening calls or repeated unwelcome calls are handled.
The Code seeks to:
- expand the definition of telephone messages covered by the Code to include calls that are not made ‘in real-time’, and
- clarify the types of calls which attract a response under the Code.
Submissions close on 11 November 2005.
Further detail and a copy of the Code is available at the ACIF website.
ACIF releases new cabling standards
On 11 October 2005, the Australian Communications Industry Forum (ACIF) released for public comment two standards outlining the rules pertaining to the correct installation and repair of cabling and cabling products (standards).
The standards are:
- DR AS/ACIF S008: 2005 Requirements for customer cabling products—the draft revision outlines technical requirements for conduit marking, cordage and surge suppression devices.
- DR AS/ACIF S009: 2005 Installation requirements for customer cabling (Wiring Rules)—the draft revision outlines the technical requirements which must be met for the installation or repair of customer cabling and customer equipment that is connected, or to be connected, to a telecommunications network.
Submissions close on 12 November 2005.
Further detail and a copy of the standards is available at the ACIF website.
ACIF releases draft credit management code for public comment
On 4 October 2005, the Australian Communications Industry Forum (ACIF) released for public comment a draft code to help people manage unexpectedly high telecommunications bills.
The ACIF DR C541: 2005 Credit Management Industry Code (Code) will help households and small businesses address and manage internet, fixed and mobile bills.
Communications Minister, Helen Coonan, welcomed the Code as an important step in protecting phone users.
Submissions close on 4 November 2005.
Further detail is available at the ACIF website.
ACMA releases first telecommunications performance report
On 4 October 2005, the Australian Communications and Media Authority (ACMA) released its first telecommunications performance report titled Telecommunications Performance Monitoring Bulletin (bulletin).
The bulletin measures the performance of Telstra, Optus, AAPT and Primus against the Customer Service Guarantee (CSG) for the year to 30 June 2005.
Communications Minister, Senator Helen Coonan said the report demonstrates that Telstra is performing strongly across Australia, especially in rural and remote areas.
Further detail and a copy of the bulletin is available at the DCITA website.
CCC study reveals threat to personal information in workplaces
On 29 September 2005, a Western Australian Corruption and Crime Commission study called 'Protecting Personal Data in the Public Sector' (CCC study) revealed that the security of personal confidential information held on government computers can not be guaranteed.
The CCC study detailed the handling of personal data, including medical and criminal histories, financial details and personal details such as names and addresses.
Acting Director of Corruption Prevention, Education and Research, Glenn Ross, argues that although firewalls, virus protection and spyware help prevent external hackers from accessing computer files, a greater risk exists within the office, where personal information can be inappropriately accessed.
The CCC study found:
- inadequate security checks of staff handling sensitive information
- inadequate audit systems to track those who have accessed sensitive information, and
- fragmented legislation, policy procedures and directives making it difficult to prosecute individuals who access sensitive information.
The CCC study also contained a number of recommendations, including but not limited to the following:
- support for a Western Australian Privacy Commissioner and privacy legislation
- amending the Criminal Code to prohibit unauthorised access and disclosure of information
- security and background checks on staff, and
- induction programs for all new public sector employees to outline the responsibility involved in handling confidential information.
Further detail is available at the Corruption and Crime Commission of Western Australia website.
DCITA releases digital take-up issues paper
On 27 September 2005, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan announced an issues paper into the current arrangements for analogue television switch-off called Driving Digital: A Review of the Duration of the Analogue/ Digital Television Simulcast Period (issues paper).
Broadly, the issues paper seeks comment on various matters which will help to formulate a Digital Action Plan to enhance take-up of digital television services. The issues paper also examines the timetable for analogue switch-off and the agenda necessary for industry, the government and others to adopt in order to accomplish analogue switch-off.
Currently, analogue broadcasting is scheduled to cease in 2008 in metropolitan areas, while the expiry date is set for the end of 2011 in regional areas.
However, with a 2008 switch-off date looking unlikely, it is anticipated that a Digital Action Plan will help to drive digital take-up, as well as a plan for the transition from an analogue to a digital market.
Submissions close on 8 November 2005.
Further detail and a copy of the issues paper is available at the DCITA website.
Competition
ACCC might authorise 2005 Direct Marketing Code of Practice
On 14 October 2005, the Australian Competition and Consumer Commission (ACCC) announced its draft proposal to authorise the 2005 Direct Marketing Code of Practice (Code).
The Code was first authorised by the ACCC in 1999, and seeks to provide protection to consumers from undesirable direct marketing techniques.
Authorisation provides immunity from court action for contravention of the Trade Practices Act 1974, provided the ACCC believes that the practice confers a net public benefit.
The ACCC is currently in the process of seeking submissions.
Further detail is available at the ACCC website.
Optus notifies ACCC of Telstra access dispute
On 5 October 2005, Optus notified the Australian Competition and Consumer Commission (ACCC) of an access dispute with Telstra, arising under Part XIX, Telecommunications Access Regime, of the Trade Practices Act 1974.
The dispute relates to the connection, monthly rental and charges relating to the supply of the unconditional local loop service (ULLS) from Telstra to Optus.
The ULLS enables a competitor to lease the use of the customer’s telecommunications line in order to supply voice, asymmetric digital subscriber line and other data services.
The ACCC has commenced the arbitration process, however, it is bound by legislation to conduct the arbitrations in private.
Further detail is available at the ACCC website.
Competition in corporate customer segment of telco industry unveiled
The Australian Competition and Consumer Commission (ACCC) has released the second in a series of reports on the state of telecommunications competition in the corporate sector called Competition in the corporate customer segment of the telecommunications industry: January 2004-December 2004 (report).
Corporate customers use a range of innovative telecommunications services such as fixed-voice services, mobile services and voice over internet protocol, often investing large expenditure in these areas.
Among other things, the report seeks to:
- analyse the state of competition in the corporate customer segment
- outline the key performance indicators Telstra will be required to report under in order to assess the extent of any non-price discriminations between Telstra’s wholesale and retail customers, and
- discuss the ACCC’s method for gathering further information for use in future reports.
Further detail and a copy of the report is available at the ACCC website.
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