Australia and New Zealand
81. The Australian Government took an interest in
parallel importing several years ago and this had led to a number
of changes in restrictions, on a sector by sector basis. In 1991,
for example, in the book sector the 'thirty day rule' was introduced
whereby parallel importing was permitted unless the local distributor
began selling the book within thirty days of the book being released
anywhere else in the world. More recently, the Government passed
two acts that fundamentally change the copyright parallel
importing laws. One was the Copyright Amendment (No 2) Act 1998,
which removed the parallel importing restriction on goods in which
copyright subsists only in "accessory "items, for example,
labels, packaging or written instructions. Prior to this, there
was international exhaustion of trade mark rights but not of copyright
and patents (although the doctrine of implied licence was applied
to these latter rights). The effect of this was that if a trade
marked good was also copyrighted, then the copyright could be
used to block parallel imports, even though the trade mark was
exhausted. In 1988, the Copyright Law Review Committee had recommended
that: "If the simple expedient of affixing or attaching a
label in which copyright subsists to any goods at all entitles
the owner of the goods to exclude others from marketing similar
goods, the sooner the practice is stopped the better. However
imaginatively labelled or packaged a bottle of liquor may be,
the product is liquor. The same may be said of cigarettes, perfume
and cosmetics".[243]
The Copyright Amendment (No 2) Act 1998 means that from 31 January
2000, copyright can no longer be used to block parallel imports
in this way.
82. The other Act has allowed the parallel importation
of sound recordings since the end of 1998. A defendant must prove
that imported recordings are legitimate; the penalties for importing,
manufacturing or trading in all pirated intellectual property
products were increased. Mr Deacon from the British Phonographic
Industry told us that, in Australia, CD imports were now coming
in from Indonesia and Thailand, countries with very low intellectual
property protection. Their indications are that "piracy has
gone up to something like 30%".[244]
Mr Kennedy stated that for the Australian record industry in a
couple of years "it would be Armageddon".[245]
Conversely, there are reports that the Australian Consumer and
Competition Commission has stated that since liberalisation, prices
have fallen without great impact on record companies.[246]
83. In New Zealand, a study published in June 1998
on the effect of the restrictions on parallel importing on copyright
goods in New Zealand looked at motor vehicles (new and used),
books and music compact discs.[247]
It came out in favour of lifting restrictions on parallel importing
and the New Zealand Government acted accordingly. In their evidence,
the Publishers Association stated that "the latest New Zealand
legislation may increase the penalties for piracy, but by determining
that the legitimacy of a product derives from its legality in
the country of origin, the local distributor now has to undertake
the burden of proof in a remote country (not his own) - for which
he may have neither the knowledge nor the resources. Books are
seriously vulnerable to counterfeit production and 'overprinting'."[248]
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