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Major Sporting Events (Indicia and
Images) Protection Bill 2014
Portfolio:
Sport
Introduced: House
of Representatives, 26 March 2014
Purpose
2.1
The Major Sporting Events (Indicia and Images) Protection Bill 2014 (the
bill) seeks to prevent the unauthorised commercial use of certain indicia and
images associated with the Asian Football Confederation Asian Cup 2015, the
International Cricket Council Cricket World Cup 2015 and the Gold Coast 2018
Commonwealth Games, consistent with written undertakings provided as a
condition of being awarded the right to host these events.
2.2
The bill seeks to achieve this by establishing a registration process to
restrict the use of protected indicia and images for each event to official
users only.
Background
2.3
The committee reported on the bill in its Sixth Report of the 44th
Parliament.
2.4
The bill was subsequently passed by both Houses and received Royal
Assent on 27 May 2014.
Committee view on compatibility
Right to freedom of opinion and
expression
Exemptions for the use of certain
indicia and images by third parties
2.5
The committee sought the Minister for Sport's advice as to the
proportionality of the proposed restriction on the right to freedom of
expression, particularly in relation to the exemptions provided for the
purposes of criticism, review or the provision of information (in the terms
drafted in the bill).
Minister's response
Criticism, review and provision of information
The legislation provides for the use the protected indicia or
images for news reporting and criticism and review. It does this by balancing a
commercial use test at section 12 with an exemption at section 14.
At section 12 three elements need to be established to
satisfy the commercial use test:
- protected indicia or images are applied to the user's goods
or services (section 12(1 )(a));
- the application is for the primary purpose of advertising
or promotion or enhancing the demand for the goods or services ( section12( 1
)(b )); and
- the application would suggest to a reasonable person that
the user is or was a sponsor or provider of support for the event (section 12(
1 )( c ).
Section 14 modifies section 12( 1 )( c) so that where the
purpose of the use of the protected indicia or images is, for example, only and
genuinely to report the news or critically or satirically review the events,
then such use would not suggest that a sponsorship arrangement exists between
the writer/reviewer/broadcaster and the event (which is otherwise prohibited by
section 12( 1 )( c) above).
For a breach to occur, it would need to be considered that
the images and indicia were applied by the user for the primary purpose of
advertising or promoting or enhancing demand for the user's goods or services.
That is, the primary purpose would not be for the purposes of genuine criticism,
review or the provision of information (which is a requirement of the exemption
at section 14). Further, the reasonable person test at 12( 1 )( c) would still
need to be satisfied and all three elements of the commercial use test
successfully proven through action brought by someone claiming their rights had
been breached. In such a circumstance the use of the indicia or images in
question would, appropriately, be considered a breach of the legislation and
would not be consistent with the use envisaged by section 14.
Therefore the proposed restriction is considered appropriate
in the context of the purposes of this legislation.[1]
Committee response
2.6
The committee thanks the Minister for Sport for his response and
has concluded its examination of this bill.
Power to order a corrective
advertisement
2.7
The committee requested the Minister for Sport's advice as to the
compatibility of proposed section 47 with the right to freedom of expression.
Minister's response
The Bill provides that the court may make an order requiring
a person to publish at their own expense a corrective advertisement, if the
court is satisfied that the person has used a protected indicia or image
without authorisation. Remedies are available to the authorising bodies under
the legislation as a means of protecting their commercial interests. Without
sponsorship the cost of staging major international sporting events would rely
heavily on government support.
The objective of the corrective advertisement mechanism is to
reverse the harm done by the false impression that may be created by the
unauthorised use of the event indicia and images. Although this may involve a
restriction on the unauthorised user's freedom of expression, this is
considered justifiable; both to alert the community to the unauthorised use and
to preserve the protection of the authorised user's rights that the Bill is
intended to afford. This is proportionate to the harm created by the
unauthorised use because the use of advertising is an equivalent means of
correcting the false impression created by the unauthorised use. The power to
order corrective advertising also serves to deter future contraventions and
encourages compliance.
Accordingly the limitation of a person's right to freedom of
expression, including the right not to be compelled to engage in particular
forms of expression is reasonable, necessary and proportionate to the objective
of promoting the right of the Australian public to access and benefit from the
staging of major sporting events.[2]
Committee response
2.8
The committee thanks the Minister for Sport for his response and
has concluded its examination of this bill.
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