FOR THE TERM OF HIS NATURAL LIFE… PLUS SEVENTY YEARS: MAPPING AUSTRALIA’S PUBLIC DOMAIN
CATHERINE MICHELLE BOND
A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY
FACULTY OF LAW UNIVERSITY OF NEW SOUTH WALES FEBRUARY 2010
ABSTRACT
This Thesis considers the concept of the ‘public domain’ and whether such a space exists, or has the capacity to exist, under Australian copyright law. Rather than the bulk of public domain literature that presumes that the public domain is an intrinsically valuable space, the Thesis commences from the premise that the role and history of a national public domain must be examined before any judgment on its benefit can be made. Therefore it seeks to situate the public domain by referring to solely Australian issues of constitutional and copyright law, from the enactment of the first colonial copyright statutes through to the Copyright Act 1968 (Cth).
The Thesis begins with an evaluation of two doctrines of the Australian Constitution: section 51(xviii), which provides the Federal Parliament power to make laws with respect to ‘copyrights’; and the implied guarantee of freedom of political communication, the only doctrine guaranteeing any form of freedom of expression in the Constitution. This discussion examines whether there has been or is any role for the public domain within these doctrines. Following this constitutional analysis, the focus of this research turns to an evaluation of the copyright laws passed in the pre-Federation colonies through to today and the standing of the public domain under these statutes. Both the specifics of a number of the provisions contained in these statutes and the social history surrounding the passing of these laws are analysed to create a greater understanding of the role and standing of the public domain from pre-Federation Australia to the present day.
The Thesis concludes by evaluating a number of findings on Australia’s public domain and recommends different constitutional, legislative and public policy reforms that would heighten the position of the public domain in Australian law and policy today.
Keywords: public domain, copyright, public interest, public rights, Australia, Australian Constitution, copyright history, colonial Australia
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ORIGINALITY STATEMENT
‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’
Signed ……………………………………………......
Date ……………………………………………......
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COPYRIGHT STATEMENT
‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.'
Signed ……………………………………………......
Date ……………………………………………......
AUTHENTICITY STATEMENT
‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’
Signed ……………………………………………......
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ACKNOWLEDGMENTS
When Marcus Clarke worked for the Public Library of Victoria, he would often place a cigar in the mouth of one of the lion statues that sat outside the library, to signal to friends that he was at the library and that they should stop by for a drink. While writing this Thesis my similar calls for assistance or amusement were usually done by electronic means, but the responses were just as appreciated. I would therefore like to take this opportunity to acknowledge the individuals and organisations that assisted me throughout the duration and ultimate completion of this Thesis.
I would first like to acknowledge the funding that I have received to undertake this research, an Australian Postgraduate Award (Industry), connected to the Australian Research Council-funded ‘Unlocking IP’ Linkage project based at the Cyberspace Law and Policy Centre, University of New South Wales. Many thanks to all the Chief Investigators on the ‘Unlocking IP’ project and to the project’s Industry Partners and Partner Investigators for their assistance over the previous years (AEShareNet Ltd; Baker & McKenzie; IBM Australia Ltd; Linux Australia; and Open Source Industry Australia Ltd).
This Thesis would not have been possible without the assistance and guidance of my supervisors, Professor Graham Greenleaf and Professor Kathy Bowrey; special thanks to Kathy and Graham for their unwavering support and comments on the many drafts of the Chapters of this Thesis. I could not have asked for more generous, encouraging or indeed patient supervisors.
Thank you to my colleagues at the Cyberspace Law and Policy Centre: Mr David Vaile, who convinced me to undertake this PhD in the first place; the incomparable Ms Abi Paramaguru; Ms Sophia Christou; Mr Martin Backes; and Mr Ben Bildstein.
Thank you to a number of UNSW past and present law postgraduates, including Dr Emily Crawford; Ms Nikki Bromberger; Ms Dominique Dalla-Pozza; Ms Louise Buckingham (particularly for her very useful comments on earlier drafts of this work); Mr Michael Salter; and Dr Michael Grewcock.
Thank you to those within the UNSW Faculty of Law who have given me such excellent support over the creation and completion of this Thesis: The Dean, Professor David Dixon, and Head of School, Professor Brendan Edgeworth, for creating such a welcoming atmosphere within the Faculty for postgraduate students; Mr Michael Handler, for being so generous with his time and ideas; Associate Professor Andrew Lynch, particularly for his assistance on the constitutional aspects of Chapter Three; Mr Jason Bosland and Dr Tanya Aplin (who provided much moral support - and many coffees - in the final months of this project); Mr Ed Santow; and Associate Professor Simone Degeling, Professor Gary Edmond, Professor Andrew Byrnes and Mrs Jenny Jarrett, who have taken such good care of the School of Law’s postgraduate students.
Thank you to those outside the Faculty who have also supported this research: Dr Matthew Rimmer; Professor Dianne Nicol; Professor Jill McKeough; Professor Bryan Mercurio.
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Many thanks are due to my family and friends: my parents, Professor Nigel and Mrs Judith Bond; my sisters, Dr Emma Currie and Ms Amanda Bond (particularly for proof- reading the Thesis for me); Dr Justin Currie and Miss Bridget and Miss Georgia Currie; Mrs Sally Mizoshiri; Mr Jeff Gabriel; Ms Emma Gingell.
Finally, parts of this Thesis have been either presented at conferences or published:
Catherine Bond, ‘Freedom of Communication and Constitutional Protection of the Australian Public Domain’, Australia and New Zealand Intellectual Property Academics Conference, Victoria University of Wellington, 25-26 January 2008 (Chapter Three). Thank you to Professor Susy Frankel for extending an invitation to me to speak at the conference and the provision of a travel scholarship to attend;
Catherine Bond, ‘Australian Copyright Law’, University of Western Sydney School of Law Staff Seminar Series, 6 August 2008 (Chapters Four through Seven). Thank you to Ms Nikki Bromberger for organising this seminar presentation;
Catherine Bond, ‘The Bill Henson Controversy: A Copyright Perspective’, Media, Communications and Public Speech Conference, University of Melbourne Law School, Centre for Media and Communications Law, 20-21 November 2008 (Chapters Five and Six). Both myself and the School of Law at UNSW would like to acknowledge the support provided by the Law Society of New South Wales towards the presentation of this paper;
Catherine Bond, ‘The Unique Flavours of Australia’s Public Domain: A View from History’, National and Global Dimensions of the Public Domain Conference, University of New South Wales, 16-17 April 2009 (Chapters Four and Five);
Catherine Bond, ‘Constitutional aspects of Australia’s public domain’ (2009) 29 Copyright Reporter 4 (Chapters Two and Three and Appendix A). Thank you to Louise Buckingham and the Australian Copyright Council for inviting me to publish in this forum;
Kathy Bowrey and Catherine Bond, ‘Copyright and the Fourth Estate: Does copyright support a sustainable and reliable public domain of news?’ (2009) 4 Intellectual Property Quarterly 399. This article draws on research presented in Chapters Four and Five on this Thesis with respect to telegraphic copyright. Thank you to Professor Andrew Kenyon for the opportunity for Professor Kathy Bowrey to present part of this research at the Media, Communications and Public Speech Conference, University of Melbourne Law School, Centre for Media and Communications Law, 20-21 November 2008.
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TABLE OF CONTENTS
ABSTRACT...... i ORIGINALITY STATEMENT...... ii COPYRIGHT STATEMENT...... iii AUTHENTICITY STATEMENT...... iii ACKNOWLEDGMENTS...... iv TABLE OF CONTENTS...... vi TABLE OF ABBREVIATIONS...... xi LIST OF TABLES...... xiv
CHAPTER ONE INTRODUCTION: FOR THE TERM OF HIS NATURAL LIFE…PLUS SEVENTY YEARS...... 1
I. INTRODUCTION: MARCUS CLARKE, COLONIAL COPYRIGHT AND THE PUBLIC DOMAIN...... 1 II. THE CATEGORIES COMPRISING AUSTRALIA’S PUBLIC DOMAIN...... 11 A. TRADITIONAL CATEGORIES OF THE PUBLIC DOMAIN...... 11 i. PRE-STATUTORY COPYRIGHT CREATIONS...... 11 ii. WORKS WHERE STATUTORY COPYRIGHT HAS EXPIRED...... 12 iii. WORKS THAT DID OR DO NOT MEET STATUTORY FORMALITIES FOR PROTECTION...... 12 iv. WORKS THAT FAILED OR FAIL TO MEET THE REQUISITE STANDARD OF ORIGINALITY...... 13 v. FACTS, INFORMATION AND IDEAS...... 13 vi. ACTIONS NOT INCLUDED IN THE EXCLUSIVE RIGHTS OF THE COPYRIGHT OWNER...... 14 vii. WORKS AND OTHER CREATIONS THAT A STATUTE EXPLICITLY STATES THAT COPYRIGHT DOES NOT SUBSIST IN...... 14 B. UNSETTLED CATEGORIES OF THE PUBLIC DOMAIN...... 15 i. EXCEPTIONS TO INFRINGEMENT...... 15 ii. THE DE FACTO PUBLIC DOMAIN...... 16 iii. WORKS DEDICATED TO THE PUBLIC DOMAIN...... 16 iv. ACCIDENTAL ABANDONMENT OF COPYRIGHT...... 17 C. CONCLUSION...... 18 III. DECONSTRUCTION: CLARIFYING THE PUBLIC AND PROPERTY IN THE PUBLIC DOMAIN...... 19 A. AUSTRALIA’S ‘PUBLIC’ AND THE CREATION AND BENEFITS OF THE PUBLIC DOMAIN...... 19 B. AUSTRALIA’S PUBLIC DOMAIN AS PROPERTY...... 22 IV. THESIS METHODOLOGY AND STRUCTURE...... 24
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CHAPTER TWO CONSTITUTIONAL FOUNDATIONS PART ONE: THE COPYRIGHTS POWER OF THE AUSTRALIAN CONSTITUTION AND THE PUBLIC DOMAIN...... 28
I. INTRODUCTION: CONSTITUTIONAL FOUNDATIONS OF PUBLIC DOMAINS...... 28 II. SECTION 51(XVIII), THE UNION LABEL CASE, AND ‘COPYRIGHTS’ AND THE PUBLIC DOMAIN AT 1900...... 31 A. THE CREATION OF SECTION 51(XVIII) AND THE UNION LABEL CASE...... 31 B. ‘COPYRIGHTS’ AT 1900 AND THE PUBLIC DOMAIN...... 37 C. CONCLUSION...... 43 III. MODERN INTERPRETATIONS OF SECTION 51(XVIII) AND THE PUBLIC DOMAIN...... 44 A. THE AUSTRALIAN TAPE MANUFACTURERS, NINTENDO AND GRAIN POOL DECISIONS AND BEYOND...... 44 B. ‘COPYRIGHTS’ TODAY AND AUSTRALIA’S PUBLIC DOMAIN...... 50 C. CONCLUSION...... 57 IV. CONSTITUTIONAL FOUNDATIONS: THE COPYRIGHTS POWER AND THE PUBLIC DOMAIN...... 58
CHAPTER THREE CONSTITUTIONAL FOUNDATIONS PART TWO: THE AUSTRALIAN CONSTITUTIONAL IMPLIED GUARANTEE OF FREEDOM OF POLITICAL COMMUNICATION AND THE PUBLIC DOMAIN...... 59
I. INTRODUCTION: COPYRIGHT, FREEDOM OF EXPRESSION, AND PUBLIC DOMAIN CONSIDERATIONS...... 59 II. THE IMPLIED GUARANTEE OF FREEDOM OF POLITICAL COMMUNICATION...... 63 III. THE RELATIONSHIP BETWEEN THE IMPLIED FREEDOM, AND THE PUBLIC DOMAIN...... 73 A. THE INDIVIDUAL, THE IMPLIED FREEDOM, AND THE PUBLIC DOMAIN...... 73 B. THE IMPLIED FREEDOM, THE CURRENT COPYRIGHT ACT, AND THE PUBLIC DOMAIN...... 74 C. FUTURE AMENDMENTS AND THE IMPLIED FREEDOM AS THE ‘PROTECTOR’ OF THE PUBLIC DOMAIN...... 79 D. CONCLUSION...... 88 IV. CONSTITUTIONAL FOUNDATIONS: THE IMPLIED FREEDOM AND THE PUBLIC DOMAIN...... 89
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CHAPTER FOUR COLONIAL COPYRIGHT AND THE BIRTH OF A NATION’S PUBLIC DOMAIN...... 91
I. INTRODUCTION: COLONIAL COPYRIGHT AND PUBLIC DOMAIN ISSUES...... 91 II. PUBLIC DOMAIN ASPECTS OF THE COLONIAL COPYRIGHT STATUTES...... 95 A. THE RIGHTS GRANTED...... 95 i. BOOKS...... 95 ii. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS AND PHOTOGRAPHS...... 101 iii. TELEGRAMS...... 101 iv. LECTURES...... 108 v. CONCLUSION...... 110 B. TERMS OF PROTECTION...... 111 i. BOOKS...... 111 ii. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS AND PHOTOGRAPHS...... 117 iii. TELEGRAMS...... 123 iv. LECTURES...... 126 v. CONCLUSION...... 126 C. ADDITIONAL PUBLIC DOMAIN FEATURES...... 128 i. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS AND PHOTOGRAPHS...... 128 ii. LECTURES...... 130 iii. CONCLUSION...... 132 III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1905...... 133
CHAPTER FIVE POST-FEDERATION COPYRIGHT AND THE PUBLIC DOMAIN...... 135
I. INTRODUCTION: POST-FEDERATION COPYRIGHT IN AUSTRALIA...... 135 II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACT 1905...... 138 A. THE RIGHTS GRANTED...... 138 i. BOOKS...... 138 ii. ARTISTIC WORK COPYRIGHT...... 145 iii. LECTURES...... 146 iv. CONCLUSION...... 149 B. TERMS OF PROTECTION...... 150 i. BOOKS...... 150 ii. ARTISTIC WORK COPYRIGHT...... 156 iii. LECTURES...... 159 iv. CONCLUSION...... 160 C. ADDITIONAL PUBLIC DOMAIN FEATURES...... 161 i. ‘BLASPHEMOUS, INDECENT, SEDITIOUS, OR LIBELLOUS WORK OR MATTER’...... 161 III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1912...... 164
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CHAPTER SIX AN AUSTRALIAN PUBLIC DOMAIN WITH AN IMPERIAL FLAVOUR: THE 1911 AND 1912 COPYRIGHT ACTS...... 166
I. INTRODUCTION: THE IMPERIAL ACT AND ITS ADOPTION IN AUSTRALIA...... 166 II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACTS 1911 AND 1912...... 169 A. THE RIGHTS GRANTED...... 169 i. LITERARY WORKS...... 169 ii. ARTISTIC WORKS...... 180 iii. CONCLUSION...... 184 B. TERMS OF PROTECTION...... 185 i. LITERARY WORKS...... 185 ii. ARTISTIC WORKS...... 193 iii. CONCLUSION...... 195 C. ADDITIONAL PUBLIC DOMAIN FEATURES...... 196 i. LECTURES...... 196 ii. ‘IMMORALITY AND OTHER DISQUALIFICATIONS RECOGNIZED BY THE LAW’...... 198 iii. CONCLUSION...... 198 III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1968...... 199
CHAPTER SEVEN THE COPYRIGHT ACT 1968 AND THE MODERN DEVELOPMENT OF AUSTRALIA’S PUBLIC DOMAIN...... 201
I. INTRODUCTION: THE BIRTH AND UNSTOPPABLE GROWTH OF THE COPYRIGHT ACT 1968...... 201 II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACT 1968...... 206 A. THE RIGHTS GRANTED...... 206 i. LITERARY WORKS...... 206 ii. ARTISTIC WORKS...... 214 iii. CONCLUSION...... 218 B. TERMS OF PROTECTION...... 219 i. LITERARY WORKS...... 219 ii. ARTISTIC WORKS...... 228 iii. CONCLUSION...... 230 C. ADDITIONAL PUBLIC DOMAIN FEATURES...... 231 i. PUBLISHED EDITIONS...... 231 III. AUSTRALIA’S PUBLIC DOMAIN TO THE PRESENT DAY...... 233
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CHAPTER EIGHT CONCLUSIONS ON AUSTRALIA’S PUBLIC DOMAIN...... 235
I. INTRODUCTION: MARCUS CLARKE REVISITED...... 235 II. THE CATEGORIES COMPRISING THE PUBLIC DOMAIN AND THEIR RELEVANCE IN AUSTRALIA...... 239 A. PRE-STATUTORY COPYRIGHT PROTECTION…………………..……………..…240 B. WORKS WHERE COPYRIGHT HAS EXPIRED...... 241 C. WORKS THAT DID OR DO NOT MEET STATUTORY FORMALITIES FOR PROTECTION……………………………………………...... …244 D. WORKS THAT FAILED OR FAIL TO MEET THE REQUISITE STANDARD OF ORIGINALITY…………………………………….....………...………………..244 E. FACTS, INFORMATION AND IDEAS……………………………....……………...245 F. ACTIONS NOT INCLUDED IN THE EXCLUSIVE RIGHTS OF THE COPYRIGHT OWNER……………………………………………………………....……...... 246 G. WORKS AND OTHER CREATIONS THAT A STATUTE EXPLICITLY STATES THAT COPYRIGHT DOES NOT SUBSIST IN………………………………………….....248 H. CONCLUSION………………………………………………………………..…249 III. THEMES SURROUNDING AUSTRALIA’S PUBLIC DOMAIN...... 250 A. AUSTRALIA’S PUBLIC DOMAIN AS A NEGATIVE SPACE…………...... …………250 B. THE CHANGING ROLE OF THE PUBLIC DOMAIN………………………………..252 C. FROM PUBLIC DOMAIN TO PUBLIC RIGHTS………………………………...... 254 IV. CONCLUSION...... 262
APPENDIX A POSSIBILITIES FOR REFORM...... 263
I. CONSTITUTIONAL REFORM OF SECTION 51(XVIII)...... 264 II. FURTHER AREAS FOR CONSTITUTIONAL RESEARCH AND POSSIBLE REFORM...... 266 A. ACQUISITION OF PROPERTY ON JUST TERMS...... 266 B. FREEDOM OF RELIGION...... 268 C. EXTERNAL AFFAIRS...... 268 III. POSSIBLE LEGISLATIVE CHANGES...... 269 A. A DEFINED TERM OF PROTECTION FOR UNPUBLISHED WORKS...... 269 B. A DEFINED TERM OF PROTECTION FOR UNPUBLISHED WORKS AND OTHER SUBJECT MATTER PROTECTED BY CROWN COPYRIGHT...... 271 IV. ADDITIONAL POSSIBILITIES FOR REFORM...... 273
BIBLIOGRAPHY...... 274
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TABLE OF ABBREVIATIONS
A&APC American and Australasian Photographic Company
ACTV Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
AUSFTA Australia-United States Free Trade Agreement 2004
Australian Tape Manufacturers Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480
Blackie Blackie & Sons Ltd v The Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396
British Leyland Motor British Leyland Motor Corporation v Armstrong Patents Co Ltd [1982] FSR 481
Coleman Coleman v Power (2004) 220 CLR 1
Cox Cox v Land & Water Journal Co (1869) LR 9 Eq 324
Cth Commonwealth
Davis Davis v Commonwealth (1988) 166 CLR 79
Desktop Marketing Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491
Digital Agenda Act Copyright Amendment (Digital Agenda) Act 2000 (Cth)
Eldred Eldred v Ashcroft 537 US 186 (2003)
Fairfax Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
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Feist Feist Publications v Rural Telephone Service Co 499 US 340 (1991)
Grain Pool Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
IceTv IceTv Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14
Imp Imperial
IP Intellectual property
Lange Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy Levy v Victoria (1997) 189 CLR 579
Luke Wilson v Luke (1875) 1 VLR 127
Mulholland Mulholland v Australian Electoral Commission (2004) 220 CLR 181
Nationwide News Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Nintendo Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134
NSW New South Wales
Qld Queensland
Routledge Routledge v Low (1868) LR 3 HL 100
Rowcroft Wilson v Rowcroft (1873) 4 AJR 57
SA South Australia
Sony Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Spicer Committee Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (1959) xii
Tamawood Tamawood Ltd (formerly called Tamawood Pty Ltd) v Henley Arch Pty Ltd (2004) 61 IPR 378
Tas Tasmania
Theophanous Theophanous v Herald & Weekly Times (1994) 182 CLR 104
T M Hall T M Hall & Co v Whittington & Co (1892) 18 VLR 525
The implied freedom The implied guarantee of freedom of political communication
The Panel Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
UK United Kingdom
Union Label Attorney General for the State of New South Wales v Brewery Employees Union of New South Wales (1908) 6 CLR 469
US United States of America
Vic Victoria
Victoria Park Victoria Park Racing and Recreations Grounds Co Ltd v Taylor (1937) 58 CLR 479
WA Western Australia
Weekes Weekes v Williamson (1886) 12 VLR 483
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LIST OF TABLES
TABLE A: Duration of Copyright in Books Produced by Males and Females in light of Life Expectancies in the Period 1881-1890...... 114
TABLE B: Comparison of Statutory Terms of Protection for Various Artistic Works in the Colonies and the United Kingdom...... 118
TABLE C: Length of Protection for Telegrams from Receipt of Message and Publication, By Jurisdiction...... 124
TABLE D: Duration of Copyright in Works Produced by Males in light of Life Expectancies in the Period 1901-1910...... 154
TABLE E: Duration of Copyright in Works Produced by Females in light of Life Expectancies in the Period 1901-1910...... 155
TABLE F: Duration of Copyright in Literary Works Produced by Males in light of Life Expectancies in the Period 1912-1967...... 191
TABLE G: Date of Publication Compared with Expiration of Copyright Based on Table F...... 191
TABLE H: Duration of Copyright in Literary Works Produced by Females in light of Life Expectancies in the Period 1912-1967...... 192
TABLE I: Date of Publication Compared with Expiration of Copyright Based on Table H...... 192
TABLE J: Duration of Copyright in Literary Works Produced by Males in light of Life Expectancies in the Period 1967-2004...... 221
TABLE K: Duration of Copyright in Literary Works Produced by Females in light of Life Expectancies in the Period 1967-2004...... 221
TABLE L: Duration of Copyright in Literary Works Produced by Males in light of Life Expectancies in the Period 1932-2004 and the AUSFTA Term Extension...... 227
TABLE M: Duration of Copyright in Literary Works Produced by Females in light of Life Expectancies in the Period 1932-2004 and the AUSFTA Term Extension...... 227
TABLE N: Local Copyright Statutes and Terms of Protection for Literary Works...... 242
TABLE O: Local Copyright Statutes and Terms of Protection for Paintings, Drawings, Engravings, and Sculptures...... 243
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TABLE P: Local Copyright Statutes and Terms of Protection for Photographs...... 243
TABLE Q: Development of the Rights of the Copyright Owner in a Literary Work...... 247
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CHAPTER ONE
INTRODUCTION: FOR THE TERM OF HIS NATURAL LIFE…PLUS SEVENTY YEARS
“It is the Law, you know, my good man. I can’t help it,” he said. “You shouldn’t break the Law, you know.” “Curse the Law!” cries Dawes. “It’s a Bloody Law; it’s - there, I beg your pardon,” and he fell to cracking his stones again, with a laugh that was more terrible in its bitter hopelessness of winning attention or sympathy, than any outburst of passion could have been.
- Marcus Clarke, For the Term of His Natural Life1
I. INTRODUCTION: MARCUS CLARKE, COLONIAL COPYRIGHT AND THE PUBLIC DOMAIN
Few colonial novels have permeated Australia’s national and international literary psyche to the extent of Marcus Clarke’s His Natural Life, more commonly referred to under its longer title, For the Term of His Natural Life.2 The story of Rufus Dawes, wrongly convicted of murder and transported under brutal conditions to the penal colony of Tasmania, stunned 19th century readers in the colonies and throughout the British Empire with its depiction of the horrors that provide the foundations for the colonies of Australia. In naming His Natural Life as one of 50 Australian classics, Gleeson-White describes the book:
Typical of much Victorian fiction, including the novels of Charles Dickens, George Eliot and Wilkie Collins, His Natural Life is filled with chance happenings, imposters, false names, disguises, unlikely coincidences, idealised characters and melodrama – and like most great nineteenth-century novels it is also a powerful, passionate outcry against social injustice, human cruelty and institutional corruption.3
While Clarke was not ‘transported’ to Australia, he did come to the colonies under less than ideal circumstances: with what little inheritance he had been left following the death of his father, Clarke immigrated to the Australian colonies to live with his extended family.4 Clarke arrived in Melbourne, Victoria at a pivotal time in the
1 Marcus Clarke, For the Term of His Natural Life (first published 1874, A&R Classics ed, 2002) 266. 2 I use the original title of the text, His Natural Life, except where referencing a version of the story that was published under the full title. 3 Jane Gleeson-White, Australian Classics: 50 great writers and their celebrated works (2007) 33. 4 Lurline Stuart, ‘Introduction’ in Lurline Stuart (ed), Marcus Clarke: His Natural Life (first published 1874, Academy Editions of Australian Literature ed, 2001) xix. 1 development of that city and settled into a life that at various points saw him as a playwright, banker, bohemian, author, journalist, editor, and librarian.5 While working for the Argus newspaper he was sent to Tasmania to research the history of that colony and its convict past.6 Inspired, Clarke began His Natural Life and the first instalments were published in the Australian Journal7 in serial form, the most common method for the publication and dissemination of local literature.8 Many instalments were featured on the cover of the Australian Journal (arguably due to the fact that Clarke edited the journal himself for approximately sixteen months), alongside illustrations of developments in the serial.9
In 1872, and 27 instalments later, His Natural Life finished its course in serial form. Clarke successfully negotiated ownership of copyright in the story from the publisher of the Australian Journal, Alfred Massina. Massina was apparently glad to be free of the tale, telling Clarke, ‘I don’t want to hear the name of the blessed thing any more!’10 Two years later the story was published in a revised form by one of the few successful colonial book publishers, George Robertson & Co.11 Editions of the book appeared in the United Kingdom and the United States shortly thereafter. Since first publication His
5 See generally Brian Elliott, Marcus Clarke (1958) 27-29; Andrew McCann, Marcus Clarke’s Bohemia: Literature and Modernity in Colonial Melbourne (2004). 6 Andrew McCann, ‘Introduction’ in Marcus Clarke, For the Term of His Natural Life, above n 1, x. However, Stuart argues that there are differing opinions as to why Clarke went to Tasmania in the first place: see Stuart (2001), above n 4, xxvi-xxvii. 7 The Australian Journal was a literary magazine published by colonial printer and publisher A H Massina & Co. It featured short stories, poems and serial tales. The Australian Journal is generally regarded as A H Massina & Co’s most successful publication, claiming both a local and international audience. See generally Frank Strahan, ‘Massina, Alfred Henry (1834 - 1917)’, Australian Dictionary of Biography
Modern readers of Clarke’s novel may be surprised to learn that the phrase ‘for the term of his natural life’, today so synonymous with Australia’s dark history, was not used exclusively in a convict or criminal context. It was a common term that appeared in a variety of British and, subsequently, colonial Australian, laws. For example, pursuant to section 14 of the first colonially-enacted copyright statute, Victoria’s Copyright Act 1869,16 copyright was deemed to ‘endure for the natural life of such author and for the further term of seven years commencing at the time of his death’ or 42 years, whichever period was longer. It was this section that would have provided the first copyright protection for His Natural Life first as a serial publication in the Australian Journal (although copyright would be owned by publisher Alfred Massina pursuant to section 24). However, given the nature of copyright protection in the Australian colonies, His Natural Life, as a serial and then as a book, initially only enjoyed protection within the colony of Victoria.
This was confirmed (albeit not exclusively to Clarke’s situation) in the House of Lords decision Routledge v Low,17 where it was established that copyright protection under the Literary Copyright Act 1842 (UK)18 ‘is given to every author who published in the United Kingdom, wheresoever that author may be resident…This benefit is obtained, in the opinion of the Legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here.’19 If first publication occurred in the UK then copyright protection extended throughout the British Empire; however, if the book
12 Gleeson-White, above n 3, 37. 13 See, eg, McCann (2004), above n 5, 153. 14 Marcus Clarke, For the Term of His Natural Life (first published 1874, Penguins Books ed, 2009). 15 See Laurie Hergenhan, Ken Stewart and Michael Wilding (eds), Cyril Hopkins’ Marcus Clarke (2009). 16 33 Vict no. 350. 17 (1868) LR 3 HL 100. 18 5 & 6 Vict, c 45. 19 Routledge v Low (1868) LR 3 HL 100, 110-111 (emphasis in original). 3 was first published in a colony it would only receive protection within the boundaries of that colony.20 This anomaly was not rectified until the International Copyright Act 1886 (UK).21
Thus in contrast to his own literary heroes, Charles Dickens and Victor Hugo,22 Clarke did not enjoy many of the benefits of his copyright. When he died from the skin disease erysipelas in 1881 at age 35, only a decade after His Natural Life had enjoyed peak readership in serial form in the Australian Journal and the subsequent first edition of the book, Clarke had recently lost his job at the Public Library of Victoria and he left his widow and six children destitute.23 As one parliamentarian later noted, ‘[i]t was sad to reflect that a man with his [Clarke’s] natural gifts was unable to provide for those who were near and dear to him.’24
Indeed, in the quotation extracted at the start of this Chapter, Clarke could justifiably be describing the law of copyright. This opinion was reflected by other colonial commentators. For example, Finnamore, in an article published in the Victorian Review shortly after Clarke’s death, states that:
It will not appear invidious if I refer to a local author of great ability, who was lately cut off in his prime by the sternest of legislators – Death. I need not say that I refer to the
20 See also Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights c 2046 (1878) [49]-[58]. By 1868 the boundaries of the colonies (New South Wales, Victoria, South Australia, Western Australia, Queensland and Tasmania) reflected the arrangement of the Australian States today, with a few noteworthy exceptions. South Australia included what is today the Northern Territory; this remained the case until 1912. In a similar vein, the Australian Capital Territory, the seat of the Federal Government, did not separate from New South Wales until 1911. 21 49 & 50 Vict, c 33. See also Sam Ricketson, ‘Australian and International Copyright Protection’ in MP Ellinghaus, AJ Bradbrook and AJ Duggan (eds) The Emergence of Australian Law (1989) 144, 146. 22 Gleeson-White, above n 3, 34. Further in contrast to Clarke, Dickens and Hugo were also able to successfully lobby for copyright reform, ensuring greater protection for both their interest’s and the interests of authors more generally. See, eg, Catherine Seville, Literary Copyright Reform in Early England (1999) 183-185 (Dickens and domestic UK copyright); Catherine Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (2006) 165-169 (Dickens espousing the benefits of international copyright in the United States); Uma Suthersanen, ‘Bleak House or Great Expectations? The literary author as a stakeholder in nineteenth-century international copyright politics’ in Helle Porsdam (ed), Copyright and Other Fairy Tales (2006) 40-60 (Charles Dickens and copyright). See also Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (2001) Chapter Two, ‘Mark Twain and the History of Literary Copyright’, particularly 55-80 (Mark Twain and copyright in the United States). 23 Elliott, above n 5, 252: ‘Marcus Clarke died at four o’clock on Tuesday afternoon, 2 August 1881, at the poorest house in which he had ever lived, in Inkermann Street, St. Kilda.’ 24 See Victoria, Parliamentary Debates, Legislative Assembly, 15 September 1886, 1482 (Mr Zox). 4 late Marcus Clarke. He published a work in Victoria, “His Natural Life,” which was acknowledged to be powerfully written, and recognised as displaying an intimate knowledge with facts in the dark past, which, but for him, might never have been unearthed, and from which future writers may...suck forth the essence of his labours, and possibly build fortunes thereon. He also, subsequently, published the work in London. It is sadly to be feared that he made no profit out of the latter publication. But he was chained down by the inflexible law, and was not in a position to make a proper bargain with an English publisher. His property was comparatively valueless except in one small part of the world. …. To carry the matter further, suppose that from some circumstance Mr. Clarke should obtain a sufficient posthumous fame, every printer in the world out of Victoria might print and publish the work, or any of his works, and utterly ignore every claim which the representatives of the deceased author might make.25
When His Natural Life was published in the United States by Harper and Brothers, Clarke’s permission was not sought and he only discovered the publication when he received the sum of £15 from Harpers – which, legally, it was not compelled to pay.26
Further, one of the few cases on Australia’s colonial copyright statutes concerned copyright in His Natural Life – albeit a dramatic adaptation and not the book itself. In Weekes v Williamson27 the plaintiff had created a play based on Clarke’s book and used the title For the Term of His Natural Life. The plaintiff argued that the defendant had infringed the copyright in its title – and the play more generally - by creating a new dramatisation of the Clarke novel, titled His Natural Life. Weekes therefore sought an injunction to restrain the performance of the defendant’s play. Contrary to modern infringement actions, there was no issue as to whether either play infringed copyright in Clarke’s novel. At that stage the right to dramatisation, or, to use the more modern term ‘adaptation’, was not included in the exclusive rights of the copyright owner. As Webb J noted in his judgment:
the contention on the part of the plaintiff is that he, having, as he says, dramatised a novel of another person, has a right to prevent anybody else from dramatising the same novel. That is a proposition which I do not assent at all. Anybody else has a right to go to the novel as the common source, and dramatise it over again, if he does not resort to the first dramatic version and copy it.28
Today this situation would not occur. To the modern copyright scholar Clarke’s experiences are alien: never would a work be either unprotected or only protected in
25 John Finnamore, ‘Imperial Copyright, As Affecting the Colonies’ [1881] The Victorian Review 713, 720-721. 26 Stuart (2001), above n 4, xlix. 27 (1886) 12 VLR 483. 5 ‘one small part of the world’ and treated as a ‘common source’ for dramatists without any form of royalty owing. Although this appears quite unjust towards Clarke and his heirs (and indeed other colonial authors), as Atkinson and Fotheringham illustrate, a number of dramatists did actually pay Marian Clarke ‘a per-performance royalty’ because ‘public opinion seems to have been well in advance of legal precedent; consequently there was widespread public pressure on the major theatrical managers to behave honourably, even if they were not legally obliged to do so.’29 The same dramatists are reported to have squabbled over who was entitled to call his play the ‘authorised’ dramatic version of Clarke’s novel.30 This example illustrates the importance of considering industry practice as well as formal law, a theme that will continue throughout this Thesis.
The situation of Marcus Clarke and His Natural Life illustrates that, entirely by accident, many classic Australian books at the time of their creation were entitled to either no copyright protection or some limited copyright protection, for example, in a particular colony, but not in other jurisdictions. Where copyright did subsist, the actual rights granted to the owner of that copyright were quite limited, for example, the right to publication. There was no corresponding right to dramatise or translate the work that rested solely with the owner. Therefore, during this period, when much of Australia’s 19th century literary and artistic culture was created, these works would automatically enter the public domain.31
The relationship between His Natural Life and copyright (or lack thereof) provides an interesting juxtaposition when compared against the development of a distinct body of copyright literature espousing the benefits of the public domain and positing theories on its significance and boundaries. This colourful rhetoric paints a picture of the public domain as a treasure: ‘a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all’;32 ‘the public domain…delineates an important sphere in which the people have equal
28 Weekes (1886) 12 VLR 483, 488. 29 Roslyn Atkinson and Richard Fotheringham, ‘Dramatic Copyright in Australia to 1912’ (1987) 11 Australasian Drama Studies 47, 59. 30 Eric Irvin, Australian Melodrama: eighty years of popular theatre (1981) 40-41. 31 Deazley makes a similar point with respect to the history of copyright in the United Kingdom, arguing that ‘the actuality of the public domain did in fact pre-date copyright’: see Ronan Deazley, Rethinking Copyright: History, Theory, Language (2006) 108. 6 rights, and ultimate power, over information, ideas and knowledge’;33 ‘the public domain would be a place like home, where, when you go there, they have to take you in and let you dance’.34 Many scholars – predominantly based in the United States - view the public domain of old as being the high point in the history and importance of this doctrine.35 Since then, the technological revolution of the 20th century has led to an increasing number of exclusive rights of the copyright owner and a growth in the term of copyright, which commentators argue led to a diminution of its significance and an ongoing ‘enclosure’ of its previous boundaries.36
When reading this public domain literature it is difficult to be critical of its infectious nature and positive recognition of such an apparently beneficial space. This is particularly the case when it is read against the political backdrop of the controversial Australia-United States Free Trade Agreement 2004 (‘the AUSFTA’).37 Pursuant to that bilateral trade agreement and despite the recommendations of multiple parliamentary committees and academic commentators, the Australian Government succumbed to United States demands to extend the duration of copyright for literary and other works and subject matter from life of the author plus 50 years to life plus 70
32 Jessica Litman, ‘The Public Domain’ (1990) 39 Emory Law Journal 965, 977. 33 Edward Lee, ‘The Public’s Domain: The Evolution of Legal Restraints on the Government’s Power to Control Public Access Through Secrecy or Intellectual Property’ (2003/2004) 55 Hastings Law Journal 91, 119. 34 David Lange, ‘Reimagining the Public Domain’ (2003) 66 Law and Contemporary Problems 463, 471. 35 See, eg, Mark Rose, ‘Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain’ (2003) 66 Law and Contemporary Problems 75; Lawrence Lessig, Free Culture: The Nature and Future of Creativity (2004); James Boyle, The Public Domain: Enclosing the Commons of the Mind (2008). 36 The term ‘enclosure’ is generally attributed to James Boyle in his article ‘The Second Enclosure Movement and the Construction of the Public Domain’, where he likened the current over- development of copyrights and term extensions to the ‘enclosure’ of previously communal lands in England: see James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and Contemporary Problems 33 (hereinafter Boyle, 2003b), 52. For a critique of Boyle’s position see Kathy Bowrey and Natalie Fowell, ‘Digging up fragments and building IP franchises’ (2009) 31 Sydney Law Review 185, 187-192. See also David Lange, ‘Recognizing the Public Domain’ (1981) 44 Law and Contemporary Problems 147; Litman, above n 32; Yochai Benkler, ‘Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain’ (1999) 74 New York University Law Review 354; Pamela Samuelson, ‘Mapping the Digital Public Domain: Threats and Opportunities’ (2003) 66 Law and Contemporary Problems 147; Yochai Benkler, ‘Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain’ (2003) 66 Law & Contemporary Problems 173; Cecil C Kuhne, III, ‘The Steadily Shrinking Public Domain: Inefficiencies of Existing Copyright Law in the Modern Technology Age’ (2004) 50 Loyola Law Review 549; but see Edward Samuels, ‘The Public Domain in Copyright Law’ (1993) 41 Journal of the Copyright Society of the USA 137. 37 Australian Government, Department of Foreign Affairs and Trade, Australia-United States Free Trade Agreement,
In search of answers, I turned to literature on Australia’s public domain, to explore whether other commentators had noted the relationship between colonial publications and the public domain. Yet a closer examination revealed that the public domain has been the subject of little consideration in Australian scholarship.40 Where the term has appeared, the focus has been on international rather than specifically Australian issues.41 Where the literature was Australian-specific, the focus has generally been on the public domain and Indigenous culture and knowledge.42
38 See Australia-United States Free Trade Agreement 2004 art 17.4.4. 39 Finnamore, above n 25, 721. 40 It is interesting to note that an Australian conference held at Griffith University titled ‘Defining the Public Domain’ predated the famous United States Conference on the Public Domain, held at Duke University. The Griffith University ‘Defining the Public Domain Conference’ was held on 13 February 1998 (see
There are a number of possible explanations for the lack of scholarship on Australia’s public domain. First, the influence of UK law is one explanation for the lack of Australian public domain scholarship.43 The copyright statutes passed by a number of Australian colonies contained sections from a number of UK laws regulating various types of creation. The Copyright Act 1905 (Cth) was based in part on a UK Bill on literary copyright that was never passed. The Copyright Act 1912 (Cth) introduced the whole Copyright Act 1911 (Imp). The Copyright Act 1968 (Cth) also relied heavily on provisions of the Copyright Act 1956 (UK). Most recently, while international treaties have become another significant factor in the development of Australian copyright law, United States law also became an influence as a result of the AUSFTA.
Second, another possibility for the lack of Australian public domain literature is that intellectual property scholarship in Australia has only developed over the previous three decades. Although a handful of articles on Australian copyright appeared sporadically in scholarly journals,44 it was not until a few years after the enactment of the Copyright Act 1968 that specific textbooks on the topic of ‘copyright’ began to emerge. Indeed, it is arguable that the 1959 report of the Spicer Committee (that eventually led to the introduction of the 1968 Act) constituted the first major examination of copyright in
Domain: Identifying the Commons in Information Law (2006) 259; Kathy Bowrey and Jane Anderson, ‘The Politics of Global Information Sharing: Whose Cultural Agenda Are Being Advanced?’(2009) 18 Social & Legal Studies 479. See also Louise Buckingham, ‘Traditional knowledge and the public domain: an overview’ (Paper presented at the National and Global Dimensions of the Public Domain Conference, University of New South Wales, 16 April 2009). 43 See generally Ricketson (1989), above n 21, 144-175. 44 The following constitutes to the best of my knowledge a complete listing of these publications: Acland Giles, ‘Literary and Artistic Copyright in the Commonwealth – I’ (1905) 3 Commonwealth Law Review 107; Acland Giles, ‘Literary and Artistic Copyright in the Commonwealth – II’ (1905) 3 Commonwealth Law Review 145; Alex Gibson, ‘International Copyright’ (1906) 4 Commonwealth Law Review 255; Geoffrey Sawer, ‘Some Problems in the Law of Copyright’ (1948) 4 Res Judicatae 155; G Sawer, ‘Copyright in Reports of Legal Proceedings’ (1953) 27 Australian Law Journal 82; Richard Colby, ‘Copyright Protection for Cinematographic Works under the Universal Copyright Convention’ (Abridged with a Foreword and Comments by CJ Bannon) (1963) 37 Australian Law Journal 20; LR Zines, ‘Revision of Copyright Law’ (1963) 37 Australian Law Journal 247; Geoffrey Sawer, ‘Australia – Embarrassing Interlude’ (1964) 11 Bulletin of the Copyright Society of the USA 313; JG Starke, ‘International Legal Notes: Australia and the Universal Copyright Convention, 1952’ (1965) 38 Australian Law Journal 348; Geoffrey Sawer, ‘Copyright in Letters Unpublished at Writer’s Death’ (1966) 3(3) Archives and Manuscripts: The Journal of the Archives Section of the Library Association of Australia 27; G Sawer, ‘The Commonwealth Copyright Act 1968’ (1969) 43 Australian Law Journal 8; Geoffrey Sawer, ‘Copyright in Letters not published at the Author’s Death’ (1971) 4(5) Archives and Manuscripts: The Journal of the Archives Section of the Library Association of Australia 1; JC Lahore, ‘Video and Sound Communications – A Copyright Survey’ (1973) 1 Australian Business Law Review 32. 9 Australia.45 It was James Lahore, who in 1974 identified this hole in legal scholarship while undertaking a broader study titled Copyright and the Arts in Australia.46 Three years after this initial text, Lahore published the first Australian-based treatise on copyright law47 and from there intellectual property as both a university subject and a topic of academic discussion grew within Australia.48
While the above suggestions are all valid possibilities, I believe that there may be another reason for the lack of Australian public domain scholarship: no research has ever been undertaken as to whether this space has mattered or matters today under Australian law or culture. The Australian public domain is currently treated as a negative space, which Frow arguably describes most succinctly as ‘that space which remains after all other rights in intellectual work have been exhausted.’49 No commentator has ever queried whether the public domain has been or is of significance under the Australian Constitution or the plethora of Australian copyright laws that have been passed from the development of the colonies through to today. This position compounds the problems caused by the lack of literature: no commentators consider why certain public domain issues matter because nobody has stopped to ask whether Australia’s public domain matters at all.
The purpose of this Thesis is to begin to formulate an answer to this question. It investigates Australia’s public domain in the period when copyright evolved from the term of the natural life of the author plus seven years in 1869 – and Marcus Clarke’s works entered much of the public domain - to the term of life of the author and 70 years today. In the interim, Australia became a Federation; a new Constitution was passed giving the Federal Parliament power to make laws with respect to ‘copyrights’; an implied guarantee of freedom of political communication was ‘discovered’ as existing within this Constitution; and three federal copyright laws were enacted. On that basis, my research evaluates the public domain, its development, boundaries and significance
45 Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Chairman Sir John Spicer), Report of the Committee appointed by the Attorney-General to consider what alterations are desirable in the copyright law of the Commonwealth (1959) (hereafter ‘The Spicer Committee’). 46 JC Lahore with PBC Griffith, Copyright and the Arts in Australia (1974). 47 James Lahore, Intellectual Property Law in Australia: Copyright (1977). 48 See Sam Ricketson, ‘Intellectual Property as a Field of Research and Scholarly Inquiry: Jim Lahore as Pioneer’ (2005) 60 Intellectual Property Forum 10. 49 Frow, above n 42, 40 (citation omitted). 10 against this constitutional, legislative, and historical record. I do not argue for or against any positive recognition of Australia’s public domain under the Constitution, or under the relevant copyright laws. Rather, this Thesis examines the development of Australia’s legislation and constitutional doctrines, and whether the public domain has played or has any role to play in their interpretation.
In light of these questions, I will now discuss the categories that comprise ‘the public domain’ for the purposes of this Thesis. I will then clarify several issues concerning the nature of the public domain and finally explain the methodology and Chapter structure that I adopt here.
II. THE CATEGORIES COMPRISING AUSTRALIA’S PUBLIC DOMAIN
While my overall aim is to investigate the boundaries of and any significance accorded to Australia’s public domain, this cannot be done without settling upon a definition of what is meant by the term ‘the public domain’. In public domain literature, it is surprising how many scholars fail to define this phrase, even just for the purposes of their own scholarship. However, creating a list of specific categories that comprise the public domain is a simple task and, in this Part I sketch the categories that I consider a part of Australia’s public domain.
A. TRADITIONAL CATEGORIES OF THE PUBLIC DOMAIN
i. PRE-STATUTORY COPYRIGHT CREATIONS
Works or other subject matter created before the existence of copyright law are in the public domain, as copyright (or any equivalent publishing right) did not subsist in such works.50 For example, artistic works by Leonardo da Vinci, including the Mona Lisa and The Last Supper, are popular examples of valuable creations that, due to the time of their creation, were not entitled to copyright protection.
50 Litman, above n 32, 975-976. 11 ii. WORKS WHERE STATUTORY COPYRIGHT HAS EXPIRED
Works where any copyright protection has expired are also in the public domain. This is arguably the most commonly-held view of how a work enters into the public domain.51 For example, the current period of protection for a literary work is the life of the author plus 70 years52 and, after that time expires, the work enters the public domain. However, throughout history a variety of lengths of protection have applied to copyright works. I discuss this issue in an Australian context in Chapters Four through Seven below. Today, Clarke’s His Natural Life is part of this category.
iii. WORKS THAT DID OR DO NOT MEET STATUTORY FORMALITIES FOR PROTECTION
Works that did or do not meet any statutory or formal requirements for protection are in the public domain. However, it is debatable whether this category ever existed in Australia. For example, under Australia’s colonial copyright statutes, copyright subsisted in a book regardless of registration as protection was granted to any work that was first published in the colony.53 This position was inherited from the Literary Copyright Act 1842 (UK). Similarly, copyright subsisted in ‘every new and original painting drawing work of sculpture engraving and photograph’ made in the colony of Victoria (or, based on the equivalent statutes in other jurisdictions, New South Wales, South Australia or Western Australia).54 Registration was not a requirement for copyright subsistence.55 On this basis, although this category is worth noting, it is unlikely to have ever existed as part of the Australian public domain. I will discuss this issue in greater detail in Chapter Four.
51 See, eg, Samuels (1993), above n 36, 151. 52 Copyright Act 1968 (Cth) s 33(2). 53 See, eg, Copyright Act 1869 (Vic), 33 Vict no 350, s 14. However, Bently attributes the removal of the formality of registration to the expansion of copyright, although recognises that registration was more significant for enforcement of copyright rather than its subsistence: see Lionel Bently, ‘R. v The Author: From Death Penalty to Community Service 20th Annual Horace S. Manges Lecture, Tuesday, April 10, 2007’ (2008) 32 Columbia Journal of Law & the Arts 1, 7, footnotes 40, 43. Here the focus is on the subsistence rather than the enforcement of copyright. 54 Copyright Act 1869 (Vic), 33 Vict no 350, s 36. 55 Registration was also not a precondition for the protection of news under the Literary Copyright Act 1842: see Kathy Bowrey, ‘Copyright and the Fourth Estate’ (Paper presented at the ‘Media, Communications and Public Speech’ Conference, Centre for Media and Communications Law, University of Melbourne, 19 November 2008). 12 iv. WORKS THAT FAILED OR FAIL TO MEET THE REQUISITE STANDARD OF ORIGINALITY
Works that fail to meet the judicially-determined standard of originality enter the public domain. This category is decreasing in significance given the increasing ease with which works are deemed to be ‘original’ for the purposes of section 32 of the Copyright Act 1968. In Australia, this threshold has been low since Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd56 (‘Desktop Marketing’) where the Full Federal Court found that copyright subsists in telephone directories produced by Telstra.57 These directories are compilations of factual information such as telephone numbers and addresses, that is, public domain information. As the joint judgment of French CJ, Crennan and Kiefel JJ notes in IceTv Pty Ltd v Nine Network Australia Pty Ltd58 (‘IceTv’) ‘[s]ome compilations are no more than a selection or arrangement of facts or information already in the public domain.’59
Macmillan argues that while the ‘rhetoric’ behind copyright is the promotion of genius and creative culture, these concepts have been undermined by setting the standard of originality for literary, artistic and musical works at this low level.60 Desktop Marketing illustrates such a proposition, although the status of this case is now uncertain.61
v. FACTS, INFORMATION AND IDEAS
Facts, information, and ideas are another category of the public domain. There can be no copyright in these facts, information, or concepts. For example, while Robert Drewe wrote Our Sunshine, a novel about infamous Australian bushranger Ned Kelly, in 1991, Peter Carey was not precluded under copyright law from publishing his novel True
56 (2002) 119 FCR 491. 57 While recent literature attributes the downfall of originality to Desktop Marketing, this was by no means the first case to set a low standard of originality under the 1968 Act: see, eg, the Queensland Supreme Court decision in Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213, 233-238. These issues will be discussed in greater detail in Chapters Six and Seven below. 58 [2009] HCA 14. 59 IceTV [2009] HCA 14, [31]. 60 Fiona Macmillan, ‘What Might Hans Christian Andersen Say About Copyright Today’ in Helle Porsdam (ed), Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity (2006) 83, 84; see also David Vaver, ‘Intellectual Property Today: Of Myths and Paradoxes’ (1990) 69 Canadian Bar Review 98, 107-109. 61 In IceTv [2009] HCA 14, in their joint judgment Gummow, Hayne and Heydon JJ note that (at [188]): It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years….However, in light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works. 13 History of the Kelly Gang in 2000. Facts and information about Ned Kelly are in the public domain. However, as noted immediately above, there can be copyright in compilations of such facts. Similarly, as Lessig notes, ideas and concepts such as Albert Einstein’s famous ‘E=MC²’ are also in the public domain: ‘[y]ou can take it and use it without the permission of anyone.’62 This category may also be described as encompassing the oft-cited ‘idea/expression dichotomy’, the copyright maxim that dictates it is the expression of the idea in a (generally) tangible form, rather than the idea itself, which copyright protects.
vi. ACTIONS NOT INCLUDED IN THE EXCLUSIVE RIGHTS OF THE COPYRIGHT OWNER
Activities not included within the exclusive rights of the copyright owner, as stipulated under the relevant copyright statute, are part of the public domain. Where activities are not included as part of the rights of the owner of the copyright such actions may be undertaken by the public, without recourse under law.63 A prime example of this category has already been given: the fact that under the colonial copyright statutes authors were not entitled to a right of dramatisation, so that, to use the words of Webb J in Weekes v Williamson ‘anybody else has a right to go to the novel as the common source, and dramatise it over again’.64 During that time the action of dramatisation in the public domain and could (and indeed was) undertaken by the public.
vii. WORKS AND OTHER CREATIONS THAT A STATUTE EXPLICITLY STATES THAT COPYRIGHT DOES NOT SUBSIST IN
The final category of the public domain involves works and other creations that are explicitly denied protection under a copyright statute. It is arguable that the most noted example of this category is contained in the United States Copyright Act 1976, where section 105 states that ‘[c]opyright protection under this title is not available for any work of the United States Government’.65 Works produced by the United States Government therefore automatically enter the public domain upon creation because section 105 explicitly excludes this type of work from the protection granted under the
62 Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2002) 12; see also Charlotte Hess and Elinor Ostrom, ‘Ideas, Artifacts and Facilities: Information as a Common- Pool Resource’ (2003) 66 Law and Contemporary Problems 111, 128-134. 63 Litman, above n 32, 978-979. 64 Weekes (1886) 12 VLR 483, 488. 65 Copyright Act, 17 USC § 105 (1976). 14 US Copyright Act.66 This category differs from those listed above as provisions falling under this area positively specify material that will not be protected by copyright.
B. UNSETTLED CATEGORIES OF THE PUBLIC DOMAIN
In addition to the traditional categories of the public domain listed above, recent scholarship suggests that another four groups could be added to this list. However, these additional groups are by no means as settled as the categories listed in Part A above:
i. EXCEPTIONS TO INFRINGEMENT
Some commentators include legal uses of works and other subject matter that are granted under statutory exceptions.67 This would include, for example, the United States doctrine of ‘fair use’ that permits reproduction where certain statutory criteria are fulfilled.68 In Australia such uses may include the fair dealing provisions contained in the Copyright Act 1968.69
Exceptions to infringement, or what I describe as ‘public rights’,70 are not included in my definition of the public domain for the present purposes. It is beyond the scope of this Thesis to include an in-depth analysis of the multitude of educational, private, parliamentary, and judicial exceptions provided under Australian copyright law, in
66 See Samuelson (2003), above n 36, 151; Pamela Samuelson, ‘Challenges in Mapping the Public Domain’ in Lucie Guibault and P Bernt Hugenholtz (eds) The Future of the Public Domain: Identifying the Commons in Information Law (2006) 7, 9-19. 67 See, eg, Samuelson (2006), above n 66, 7-25. Samuelson illustrates the public domain ‘conceptions’ of several authors, highlighting whether they include these types of statutorily-created exceptions within their ‘public domains’. See also Graham Greenleaf, ‘National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)’ (2009) 6 SCRIPT-ed 259, 268-269
In a similar vein, I will not consider an ‘insubstantial part’ of a work as part of Australia’s public domain, and for that reason will not discuss that issue in any detail.
ii. THE DE FACTO PUBLIC DOMAIN
A number of scholars also include the ‘de facto’ public domain. This apparently includes some uses of orphan works, or works that appear on the Internet where, to use Greenleaf’s term, the copyright owner may have ‘acquiesced’ to the reproduction of the work, predominantly by a search engine.71 However, this Thesis only considers the categories of the public domain that are legally without copyright restrictions.
iii. WORKS DEDICATED TO THE PUBLIC DOMAIN
Some commentators argue that works can also enter the public domain through a formal and intentional forfeiture of copyright. In the United States, although it is not statutorily possible to dedicate a work to the public domain, there is a judicially-developed doctrine permitting this type of action.72 Further, open content licensing organisation Creative Commons have created the ‘Public Domain Dedication’ and subsequent ‘CC0’ based on US law that allow copyright owners to formally waive all rights and dedicate a creation to the public domain.73
It is questionable whether such dedications – either in the form of a legal document or a simple statement – are even valid under Australian law. Instructions for a renunciation of copyright are certainly not provided under the Copyright Act 1968. Such an idea was
71 See, eg, Graham Greenleaf, ‘Creating commons by friendly appropriation’ (2007) 4 SCRIPT-ed 117
Renunciation of Copyright:
655. It has been suggested to us that a copyright owner ought to be able to place a work irrevocably in the public domain, for example, by publishing a renunciation of his copyright in a suitable journal. At first sight the idea seems attractive, but most of us feel that legislation to cover renunciation would not be practicable.74
The closest that the judiciary has come to determining this issue is in accidental abandonment of copyright cases, discussed in more detail below.75 In British Leyland Motor Corporation v Armstrong Patents Co. Ltd76 (‘British Leyland Motor’) Foster J found that ‘[t]his is a legal right and no case was cited to me in which in English law it was held or even suggested that a copyright had been abandoned. It is extremely difficult in my experience to divest oneself of a legal right.’77 Outside the courts, commentators also argue that ‘it is difficult to say what amount of evidence the courts would require as to the fact of a dedication of a copyright to the public.’78 More recently, Rothnie, in a discussion on the waiver of moral rights in Australia, believes that case law indicates ‘the general principle that a person may waive a statutory right for his or her own benefit.’79 The issue remains unresolved and, as such, is not considered as a category of the traditional public domain here.
iv. ACCIDENTAL ABANDONMENT OF COPYRIGHT
Finally, some commentators suggest that works can enter the public domain through an accidental or unintentional abandonment of copyright.80 This argument occurs primarily in litigation where a defendant who, in response to an allegation of copyright infringement, argues that the plaintiff has previously abandoned their copyright and as such infringement cannot have occurred – for example the British Leyland Motor case,
74 Great Britain, Committee to Consider the Law on Copyright and Designs, Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs (1977) [655]. 75 Kevin Garnett, Jonathan Rayner James and Gillian Davies, Copinger and Skone James on Copyright (14th ed, 1999) vol 1, [6-84]. 76 [1982] FSR 481. 77 British Leyland Motor [1982] FSR 481, 492. 78 Garnett, Rayner James and Davies, above n 75, [6-84]. 79 Warwick A Rothnie, ‘Moral Rights: Consents and Waivers?’ (2002) 20 Copyright Reporter 145, 152. 80 See Pallas Loren, above n 72, 320. 17 discussed above.81 To date there is no case law or scholarship confirming that a defendant has ever successfully established such a defence. At present it is also unlikely that, given the operation of the provisions of the Berne Convention, a work could enter the public domain through any unintentional abandonment of copyright.82
C. CONCLUSION
In light of the above analysis, seven public domain issues are considered throughout my research:
A. Any protection for works that pre-dated protection under any Australian copyright statute; B. the term of copyright granted to protected creations; C. any statutory formalities that needed to be met for the subsistence of copyright; D. the standard of originality required for the protection of works and other subject matter; E. the treatment of facts, ideas and information; F. activities that could be undertaken with respect to a copyright-protected work as such actions were not included in the exclusive rights of the copyright owner; and G. works and other creations that a statute explicitly states that copyright does not subsist in.
While I refer to these aspects throughout this Thesis, these categories will be particularly relevant in the legislative investigation undertaken in Chapters Four through Seven.
81 Garnett, Rayner James and Davies, above n 75, [6-84]. See British Leyland Motor Corporation v Armstrong Patents [1982] FSR 481; Plix Products v Frank M. Winstone (Merchants) [1986] FSR 63; Australian Olympic Committee v Big Fights [1999] FCA 1042. 82 Article 5(2) of the Stockholm revision provides that ‘[t[he enjoyment and the exercise of these rights shall not be subject to any formality’. Given that copyright subsists automatically and is not predicated on any formality, it is unlikely that copyright could be so easily, unintentionally abandoned. See Berne Convention for the Protection of Literary and Artistic Works Signed on September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, revised at Brussels on June 26, 1948, and revised at Stockholm on July 14, 1967. 18 III. DECONSTRUCTION: CLARIFYING THE PUBLIC AND PROPERTY IN THE PUBLIC DOMAIN
While I noted above that much public domain scholarship ignores the question of the categories of the public domain, what is even more concerning is that a number of quite significant issues also remain neglected in this literature. However, it is difficult to envisage how a precise and thoughtful account of a national public domain can occur in the absence of any consideration of these issues. Thus in this Part I consider the following aspects and their application in Australia:
A. Who constitutes the ‘public’ in Australia’s public domain; and B. whether Australia’s public domain is property.
A. AUSTRALIA’S ‘PUBLIC’ AND THE CREATION AND BENEFITS OF THE PUBLIC DOMAIN
In Part II I considered the categories that comprise Australia’s public domain. While this was a relatively easy task, it is also worth noting what works and other subject matter are included as part of these categories for the present purposes. However, to do this requires a determination of who is the ‘public’ in ‘Australia’s public domain’: who contributes to it and conversely who benefits from it. This is one of the most neglected questions in public domain literature, with Halbert being one of the few commentators to ask ‘what public, or “people”, are served when discussing issues of the public domain?’83
In an Australian context this question does not have a simple answer. First, my research considers the Australian public domain in both pre-and-post Federation contexts and thus needs a definition that encompasses both ‘publics’. Yet colonial citizenship differed from post-Federation citizenship and, for a long period, Australian citizens were considered to be British subjects. It is only recently that Australia has severed such ties. Second, although the Australian Constitution uses the term ‘the people’,84 and the definition accorded to this group of individuals may be informative here, closer analysis
83 Debora Halbert, ‘Theorizing the Public Domain: Copyright and the Development of a Cultural Commons’ (2003) 29 Studies in Law, Politics and Society 3, 6; see also Kathy Bowrey, ‘Can A Public-Minded Copyright Deliver A More Democratic Internet?’ (2007) 56 University of New Brunswick Law Journal 26. 84 See Australian Constitution cls 1, 3, 5; ss 7, s 24, 25, 54, 90, 105. 19 reveals that there is no settled meaning of these ‘people’.85 Third, though in a similar vein, the Australian Constitution did not originally include Indigenous Australians as part of this phrase ‘the people’, indicating that this term has not always been inclusive of both Australia’s population and cultural creators.86 A full determination of these issues is beyond the boundaries of this Thesis, yet the difficulty in settling on a definition of the ‘public’ illustrates the problems already created by attempting to evaluate the concept of the ‘public domain’ into Australian law.
Some definition is needed however, therefore in this Thesis I consider Australian residents and citizens to be the Australian ‘public’. On the basis of that definition, works and other subject matter that comprise Australia’s public domain will have been creations that were first created or published in Australia or created or published by an Australian citizen.87 My primary reason for this definition is that Australian copyright laws, since the colonial period, have generally always protected works that were first published or created here in Australia and then, later, those created or published by Australian citizens, regardless of the jurisdiction of publication.
For example, under the Copyright Act 1869 (Vic), copyright subsisted in books that ‘have been or [will] be first published in the colony of Victoria in the lifetime of its
85 See Elisa Arcioni, ‘That vague but powerful abstraction: the concept of “the people” in the Constitution’ (Paper presented at the 2009 Constitutional Law Conference, Australian National Maritime Museum, 20 February 2009)
Yet in contrast, protection was granted to any painting, drawing, or other artistic creation listed under section 36 of the Copyright Act 1869 where the author was either resident in Victoria or a British subject. While the Australian public may have benefitted in this work being in the public domain, it is too great a stretch to suggest that any work produced by a British subject should be considered part of Australia’s public domain. I adopt this distinction and will highlight where it is raised later on. This is consistent with the fact that my definition also excludes works that were published or created in overseas jurisdictions and receive protection here due to reciprocal copyright treaties. Unless such works were published by a ‘qualified person’ (discussed below), such creations are not considered part of Australia’s public domain.
Later, pursuant to section 13(2) of the Copyright Act 1905, copyright subsisted in books that were published in Australia ‘before or simultaneously with its first publication elsewhere’.89 Today copyright subsists in an unpublished work where the author is a qualified person at the time of creation, or if that work is made over an extended period, the author is a qualified person for a ‘substantial part’ of that time.90 For published works, copyright subsists in the work if first publication takes place in Australia, or the
88 Copyright Act 1869 (Vic), 33 Vict no 350, s 14. Common law copyright also subsisted in unpublished works, an issue that I will consider in Chapter Four Part II Section A(ii) below. 89 Copyright Act 1905 (Cth) s 13(2). 90 Copyright Act 1968 (Cth) s 32(1). 21 author is a qualified person at publication.91 The term ‘qualified person’ means ‘an Australian citizen or a person resident in Australia.’92
These changes in the statutory requirements for the subsistence of copyright also illustrate why it is important to begin an examination of Australia’s public domain at the earliest possible time. Given that previously only works published or created in Australia were protected, there are clear ramifications for Australia’s public domain when copyright subsistence was expanded to works published essentially anywhere by Australian citizens.
B. AUSTRALIA’S PUBLIC DOMAIN AS PROPERTY
Whether the public domain (either a singular nation’s public domain or the global public domain) constitutes property is another unanswered, though recurring, issue throughout this literature. Scholars posit opposite views on whether the public domain is owned by all or owned by none.93 Reference to the public domain in property-based terms is also attributable to the rise in a discourse based on another property concept: the copyright commons. I use the term ‘commons’ sparingly, for, as Boyle notes ‘[t]he terms “public domain” and “commons” are used widely, enthusiastically, and inconsistently.’94 While the term was used with respect to literary property prior to the development of recent literature,95 the term ‘commons’ has become increasingly in vogue to describe areas ranging from intangible information to the Internet.96 Although
91 Copyright Act 1968 (Cth) s 32(2). 92 Copyright Act 1968 (Cth) s 32(4). 93 See generally James Boyle, ‘Foreword: The Opposite of Property?’ (2003) 66 Law and Contemporary Problems 1 (hereinafter Boyle 2003a); Carol M Rose, ‘Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age’ (2003) 66 Law and Contemporary Problems 89; Tyler T Ochoa, ‘Origins and Meanings of the Public Domain’ (2002/2003) 28 University of Dayton Law Review 215, 256-262; John Cahir, ‘The Withering Away of Property: The Rise of the Internet Information Commons’ (2004) 24 Oxford Journal of Legal Studies 619; Hanoch Dagan, ‘Property and the Public Domain’ (2006) 18 Yale Journal of Law & Humanities 84; Lucky Belder, ‘Cultural Expression: From Common Source to Public Domain’ in Fiona Macmillan (eds) New Directions in Copyright Law: Volume Four (2007) 35. 94 Boyle (2003a), above n 93, 29. 95 William B Carman, ‘The Function of the Judge and Jury in the “Literary Property” Lawsuit’ (1954) 42 California Law Review 52, 57-59. 96 See generally Yochai Benkler, ‘Overcoming Agoraphobia: Building the Commons in a Digitally Networked Environment’ (1998) 11 Harvard Journal of Law and Technology 287; Yochai Benkler, ‘The Political Economy of Commons’ (2003) 4 Upgrade 6; Paul Goldstein, ‘Copyright’s Commons’ (2005) 29 Columbia Journal of Law & the Arts 1; Henry C Mitchell, The Intellectual Commons: Towards an Ecology of Intellectual Property (2005); Anthony McCann, ‘Enclosure Without and Within the “Information Commons”’ (2005) 14 Information and Communications Technology Law 217; Peter Drahos, ‘Freedom and Diversity: A Defence of the Intellectual Commons’ [2006] AIPLRes 22 it is possible to distinguish the ‘public domain’ from the ‘commons’, I refrain from using the phrases ‘commons’ and ‘copyright commons’.97
In this Thesis, however, I consider that Australia’s public domain is not the property of the Australian public. There are two reasons for this decision. First, in Australian legal discourse there is a heavy reliance on the system of private property. This is even reflected in the Australian Constitution: section 51(xxxi) provides that although Parliament has the power to make laws with respect to ‘the acquisition of property’ from any individual or State, it must do so on the provision of ‘just terms’.98 This enshrines the belief that any removal of property from private hands justifies remuneration to the previous owner. However, when property is acquired pursuant to section 51(xxxi), such property is not subsequently referred to as being owned ‘by the people’. The Federal Commonwealth owns that property, rather than ‘the people’ or ‘the public’ that gives the Commonwealth its power.
Second, while there is this reliance on private property in the Australian Constitution, this is mostly based on concepts of tangible property and its ownership. Although copyright is a form of personal property99 and its relationship with section 51(xxxi) has been discussed in a number of cases,100 Australian law still grapples with the application of these doctrines to intangible property.101 This confusion is highlighted in the Copyright Law Review Committee’s 2005 Crown Copyright review. In their submissions, several States argued that if the Federal Government removed the prerogative right of the Crown that entitles the States and Territories to proprietary rights in legislation, this would amount to an acquisition of property under section
1 at
These examples illustrate that property discourse in Australia is built on private property rights theories that have not yet been sufficiently translated into an intangible property context. This dichotomy is at odds with any notion that Australia’s public domain is ‘owned’ by the public. Property in Australia is either owned privately or by the Crown. Even the laws of the Australian Commonwealth, States and Territories are subject to proprietary rights. Yet the public domain does not fit into either category. As such, I do not consider that the public domain constitutes ‘property’.
IV. THESIS METHODOLOGY AND STRUCTURE
Given the lack of Australian public domain scholarship that I identified earlier in this Chapter, my research on the public domain is based on an evaluation of any potential constitutional and legislative foundations of this doctrine.
I focus on constitutional issues first for two reasons. First, in United States public domain scholarship there has been a distinct emphasis on the relationship between the public domain, the intellectual property provision of the US Constitution (Article I, Section 8, Clause 8) and the First Amendment free-speech guarantee of the US Bill of Rights.104 The repeated scholarly emphasis on the interrelationship between these areas suggested to me that this was a useful place to begin my own analysis of Australia’s public domain.105 Second, though in a similar vein, the fact that Australia has a
102 Copyright Law Review Committee, Crown Copyright (2005) [6.34]-[6.36]; Copyright Act 1968 s 8A(1); Attorney General for New South Wales v Butterworth & Co (Australia) (1938) 38 NSWSR 195. 103 It is worth noting that, although problems remain, Australian commentators are beginning to challenge this discourse in other areas: see Alex Steel, ‘Problematic and Unnecessary Issues with the Use of the Theft Offence to Protect Intangible Property’ (2008) 30 Sydney Law Review 575, 598-603. 104 I discuss this literature in greater detail in Chapters Two and Three. 105 It is important to note that, aside from section 51(xviii) of the Australian Constitution (discussed in Chapter Two) and the implied guarantee of freedom of political communication (discussed in Chapter Three), there are additional constitutional doctrines that may affect Australia’s public domain. For example, commentators argue that, given the operation of the constitutional external affairs power (section 51(xxix)), there is little that the Federal Parliament cannot do with respect to copyright. See The Hon Justice Ronald Sackville, ‘Welcome’ in Brian Fitzgerald (ed) Open Content Licensing: 24 constitutional provision granting power to the Federal Parliament to make laws with respect to ‘copyrights’ (section 51(xviii)) also suggested that this was the desirable place to begin an examination of any foundations of Australia’s public domain. Other jurisdictions – for example, the United Kingdom – lack a formal constitutional provision. Thus, the existence of section 51(xviii) in Australia indicated to me that any analysis of the public domain should begin with an interpretation of this provision.
Following this constitutional analysis, the focus of this Thesis turns to an evaluation of the copyright laws passed in the pre-Federation colonies through to today and the standing of the public domain under these statutes. Earlier in this Chapter I discussed my struggle to reconcile the treatment of Marcus Clarke, whose works entered the public domain due to a lack of adequate national legislative and international protection, and the positive treatment of the public domain in literature. Yet even the briefest glance at the provisions of the current Copyright Act indicates that copyright law has expanded greatly since Clarke’s time and the Australian colonial period. On that basis, I map the development of these laws and the concurrent impact on Australia’s public domain.
In undertaking this constitutional and legislative analysis I adopt a contextual and doctrinal approach. Rather than presume that Australia’s public domain can be either readily located or measured with reference to legislative definition of the ambit of the private, exclusive rights of the copyright owner, my research suggests that it needs to be considered in view of much more complex interrelationships between copyright, the public domain, notions of the ‘public interest’, and statutory developments of public rights. This requires a close consideration of historical developments in legislative policy and structure, case law and international demands on law reform. I also utilise empirical methods in Chapters Four through Seven in order to consider the impact of term extensions on the boundaries of Australia’s public domain and any subsequent impact on the significance of this space. This involves mapping legislative changes to the post-mortem term of copyright in light of statistics on changing life expectancies
Cultivating the Creative Commons (2007) 30, 35; see also George Williams, ‘Are Service Marks Trade Marks? Commonwealth Power Over Intellectual Property’ (1995) 6 Australian Intellectual Property Journal 133, 141-143. In Appendix A however I provide greater detail on additional constitutional doctrines that may also impact on Australia’s public domain: see Appendix A, below. 25 across the same period. Such analysis also makes for a more objective approach to determining the true impact of ongoing term extensions throughout copyright’s history.
This Thesis proceeds as follows:
Chapter Two commences my ‘map’ of Australia’s public domain by first considering its constitutional foundations. I examine how the concept of ‘copyrights’ has been constructed as part of section 51(xviii), the, broadly-speaking, intellectual property provision of the Australian Constitution and whether the public domain played or plays any role within this constitutional setting.
Chapter Three continues this constitutional focus, with a consideration of copyright, the public domain, and Australia’s only constitutionally-guaranteed freedom of speech: the implied guarantee of freedom of political communication. I examine the development of the implied freedom by the High Court of Australia throughout the 1990s and early 21st century before critiquing Australian copyright and the role of this public domain against this doctrine. Chapter Three also evaluates whether this implied freedom could be used as a possible protection for the Australian public domain, providing it additional significance in this respect.
Chapter Four commences my legislative analysis of the Australian public domain, beginning with the first copyright laws passed in Australia: the copyright statutes passed by the colonies of Victoria, New South Wales, Western Australia and the province of South Australia. Legal regulation of specific types of creation – in this Chapter books; paintings, drawings, works of sculpture, engravings and photographs; telegrams; and lectures - are used to examine how the public domain was constructed at this time.
Chapter Five analyses the first post-Federation and Federal copyright law in Australia: the Copyright Act 1905. It considers the unique legislative choices that the Federal Parliament made while constructing this law and the subsequent effect on the Australian public domain. Rights – both private and public - granted in books, artistic creations and lectures are examined to determine how the nature of the public domain and any role that the public interest played in legislative drafting.
26 Chapter Six provides a distinct contrast to the predominantly-national nature of the Australian public domain explored in Chapter Five by considering the effects of the Copyright Act 1912. By virtue of section 8 of that statute the entire Imperial Copyright Act 1911 was enacted into Australian law. This Chapter considers whether, during this period, any distinct ‘Australian’ public domain was able to develop and the subsequent significance and boundaries of that area. Literary works, artistic works and lectures provide the focus of this discussion.
Chapter Seven considers the most extensive Australian copyright law to date: the Copyright Act 1968. Given the expansive nature of this statute, Chapter Seven focuses on a limited number of creations protected under the Copyright Act 1968: literary works, artistic works, and published editions. Yet Chapter Seven illustrates why only a few areas of law are needed to illustrate the changes to the Australian public domain in the previous 150 year-period.
In conclusion, Chapter Eight considers how the boundaries and significance of the Australian public domain have evolved since the first colonial copyright statutes and the role that the public domain has played.
Although the development of a platform for reform is not the primary aim of my research, Appendix A features a series of a suggested constitutional and legislative reforms that could be employed for greater recognition of Australia’s public domain, based on the analysis undertaken in my research.
By the end of this Thesis I will have sketched a clearer view of the constitutional, legislative, judicial, and historical foundations of Australia’s public domain.
27 CHAPTER TWO
CONSTITUTIONAL FOUNDATIONS PART ONE: THE COPYRIGHTS POWER OF THE AUSTRALIAN CONSTITUTION AND THE PUBLIC DOMAIN
I. INTRODUCTION: CONSTITUTIONAL FOUNDATIONS OF PUBLIC DOMAINS
In Chapter One, I noted the abundance of literature focusing on the relationship between the public domain, the intellectual property clause of the US Constitution, and the limitations on the legislative power of the United States Congress inherent in this constitutional doctrine.1 This clause provides that the US Congress has the power to ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’2 Scholars argue that the phrases ‘promote the Progress of Science and useful Arts’ and ‘limited Times’ place limits on the power of Congress to legislatively encroach upon the public domain.3 Patterson and Joyce believe that ‘securing and
1 See, eg, Howard B Abrams, ‘The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’ (1982) 29 Wayne Law Review 1119, 1174-1178; Ralph Oman, ‘Speech - The Copyright Clause: “A Charter for a Living People”’ (1987) 17 University of Baltimore Law Review 99; Irah Donner, ‘The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It with Unanimous Approval?’ (1992) 36 American Journal of Legal History 361; Edward C Walterscheid, ‘To Promote the Progress of Science and Useful Arts: The Background and Origins of the Intellectual Property Clause of the United States Constitution’ (1994) 2 Journal of Intellectual Property Law 1; Paul J Heald and Suzanna Sherry, ‘Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress’ [2000] 4 University of Illinois Law Review 1119, 1125-1167; Malla Pollack, ‘What Is Congress Supposed to Promote?: Defining “Progress” in Article I, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause’ (2001) 80 Nebraska Law Review 754; ‘Symposium: Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution’ (2002) 36 Loyola of Los Angeles Law Review 1; Paul M Schwartz and William Michael Treanor, ‘Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property’ (2003) 112 Yale Law Journal 2331; William W Van Alstyne, ‘Reconciling What the First Amendment Forbids with what the Copyright Clause Permits: A Summary Explanation and Review’ (2003) 66 Law and Contemporary Problems 225; L Ray Patterson and Craig Joyce, ‘Copyright in 1791: An Essay Concerning the Founders’ View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the U.S. Constitution’ (2003) 52 Emory Law Journal 909; Kenneth D Crews, ‘Copyright Duration and the Progressive Degeneration of a Constitutional Doctrine’ (2004) 55 Syracuse Law Review 189; Dotan Oliar, ‘Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power’ (2004) 94 Georgetown Law Journal 1771, 1810-1816; David L Lange and H Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment (2008), particularly Chapter Four, ‘“Exclusive Rights” and the Constitution’. 2 United States Constitution art I, s 8, cl 8. 3 Edward Lee, ‘The Public’s Domain: The Evolution of Legal Restraints on the Government’s Power to Control Public Access Through Secrecy or Intellectual Property’ (2003/2004) 55 Hastings Law Journal 91, 117. See also L Ray Patterson and Stanley W Lindberg, The Nature of Copyright: A Law of Users’ Rights (1991), particularly Chapter Four, ‘Copyright in the U.S. Constitution: Policies’; Ashley Packard, ‘Copyright Term Extensions, the Public Domain and Intertextuality Intertwined’ (2002) 10 Journal of Intellectual Property Law 1; Patterson and Joyce, above n 1, 949-950; Kevin A 28 nurturing the public domain was clearly a matter of concern for the Founders’ of the US Constitution, ascribing it with immense constitutional significance.4 Kuhne even suggests that:
Although a definitive term of copyright protection is not established by the Constitution, the “limited times” language of the Copyright Clause restricts copyright term. The enrichment of the public domain, however, is not a by-product of this restriction, but its very purpose.5
This issue was central to the Eldred v Ashcroft6 (‘Eldred’) challenge. The Eldred litigation was a reaction to the Copyright Term Extension Act 1998 (US) that extended the duration of copyright protection to life of the author plus 70 years. Eric Eldred, publisher of Eldritch Press, an online collection of term-expired books, launched a constitutional challenge to this term extension on two main grounds: first, that the extension violated the ‘limited Times’ part of the US constitutional copyright clause; and second, that the extension also violated the First Amendment. With copyright and constitutional scholar and card-carrying member of what Samuels’ terms the ‘public domain club’7 Lawrence Lessig leading the challenge, the litigation attracted immense legal, political, and community interest.8 Ultimately the United States Supreme Court split 7:2, finding that the term extension did not violate either the US constitutional copyright clause or the First Amendment. Ginsburg J, delivering the opinion of the Court, rejected claims that the term extension violated the ‘limited Times’ aspect of the copyright clause.9 Still, some commentators argue that perpetual copyright protection would fall foul of this clause.10
Goldman, ‘Limited Times: Rethinking the Bounds of Copyright Protection’ (2006) 154 University of Pennsylvania Law Review 705, 733-740; David E Shipley, ‘Congressional Authority Over Intellectual Property Policy After Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain’ (2007) 70 Albany Law Review 1255. 4 Patterson and Joyce, above n 1, 949; cf Benjamin Kaplan, An Unhurried View of Copyright (1966) 25- 36. 5 Cecil C Kuhne, III, ‘The Steadily Shrinking Public Domain: Inefficiencies of Existing Copyright Law in the Modern Technology Age’ (2004) 50 Loyola Law Review 549, 651 (citation omitted). 6 537 US 186 (2003). 7 Edward Samuels, ‘The Public Domain in Copyright Law’ (1993) 41 Journal of the Copyright Society of the USA 137, 147. 8 For Lessig’s account of the Eldred litigation, see Lawrence Lessig, Free Culture (2004), particularly ‘Chapter Thirteen: Eldred’ and ‘Chapter Fourteen: Eldred II’. 9 Eldred 537 US 186 (2003), 199-205. 10 There is some controversy surrounding this statement. Landes and Posner argue that perpetual protection would not be permitted under the United States constitutional copyright provision, but Congress could arguably invoke another constitutional power to do so. See William M Landes and Richard A Posner, ‘Indefinitely Renewable Copyright’ (2003) 70 University of Chicago Law Review 471, 473. Some commentators also believe that Eldred does in fact stand for the unconstitutionality of perpetual protection, although the United States Supreme Court did not directly comment on this 29
Australia’s constitution contains a similar provision. The Commonwealth of Australia Constitution Act was enacted in 1900 as a statute of the Parliament of the United Kingdom.11 The Australian Constitution establishes the rules for the creation and maintenance of the Federal legislature, executive and judiciary and the provisions for the appointment of individuals to each group.12 In the case of the Federal Parliament, sections 7 and 24 provide for the election of members to the Senate and House of Representatives respectively, and the qualifications to each case.13 Part V of the Constitution also contains a list of powers that the Federal Parliament can exercise. This includes making laws in a range of areas, including: ‘trade and commerce with other countries, and among the States’ (s 51(i)); ‘postal, telegraphic, telephonic, and other like services’ (s 51(v)); marriage (s 51(xxi); ‘matters incidental to the execution of any power vested by [the] Constitution in the Parliament’ (s51 (xxxix)); and ‘copyrights, patents of inventions and designs, and trade marks’ (s 51(xviii)).
Following the passing of the AUSFTA in 2004, the Federal Parliament was required to extend the term of copyright for many works from ‘life-plus-50’ to ‘life-plus-70’.14 While reading about the AUSFTA a few years after its introduction, what surprised me was that no constitutional challenge was launched against this term extension under section 51(xviii). Perhaps even more seriously, it made no appearance in any of the parliamentary or community discussion leading up to the adoption of the AUSFTA term extension. In contrast, while the Eldred constitutional challenge ultimately failed, discussion on the validity of the Copyright Term Extension Act in the US was such a serious issue that the challenge made it all the way to the United States Supreme Court.
issue: see, eg, R Anthony Reese, ‘Public but Private: Copyright’s New Unpublished Public Domain’ (2007) 85 Texas Law Review 585, 636-637. 11 Multiple efforts to federate the colonies were undertaken throughout the 19th century, but it was not until the late 1800s that the ‘federal movement’ gained any ground. In 1891 an Australian Constitution Bill was drafted and although that Bill ultimately failed, it set in motion a series of conventions that led to the drafting of the Australian Constitution and the passing of the new constitution nearly ten years later. See generally John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (1901, reprinted by Lexis Nexis Butterworths 2002) 115-252. 12 See Australian Constitution ch I (‘The Parliament’), ch II (‘The Executive Government’), ch III (‘The Judicature’). 13 See Australian Constitution, ch I pt II (‘The Senate’), ch I pt III (‘The House of Representatives’). 14 Australia-United States Free Trade Agreement 2004 art 17.4.4; US Free Trade Agreement Implementation Act 2004 (Cth). 30 Indeed, the US public domain and copyright clause literature, while in parts espousing the romantic rhetoric of the public domain that I critiqued in Chapter One, illustrates what was at stake when the term of copyright was extended and why the public domain mattered in that case. Constitutional significance had also been ascribed to the United States public domain in the past. Yet no such discussion had or has occurred in Australia, possibly illustrating why Australian public interest organisations and concerned publishers did not head straight to the High Court following the introduction of the ‘life-plus-70’ period of protection.
Thus, the primary question that I consider in this Chapter is the meaning of the term ‘copyrights’ in an Australian constitutional context and whether the public domain had or has any part within this definition and the meaning of section 51(xviii). Chapter Two proceeds as follows. I first discuss the history of section 51(xviii), the meaning of ‘copyrights’ at the framing of the Constitution and whether the public domain had a place in the definition of this term at that time. I then consider more modern analyses of section 51(xviii) and whether the standing of the public domain under this provision has changed over time.
II. SECTION 51(XVIII), THE UNION LABEL CASE, AND ‘COPYRIGHTS’ AND THE PUBLIC DOMAIN AT 1900
A. THE CREATION OF SECTION 51(XVIII) AND THE UNION LABEL CASE
Part V of the Australian Constitution is titled ‘Powers of the Parliament’ and it further states that:
(51) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to…
(xviii) copyrights, patents of inventions and designs, and trade marks.15
The Australian Constitution is notoriously brief in its wording and perhaps no provision illustrates this better than the intellectual property powers provision. During the Constitutional Convention Debates held throughout the 1890s, ‘[l]ittle controversy
15 Australian Constitution s 51 (xviii). 31 appears to have attended the drafting of s 51(xviii).’16 Speaking extra-judicially, French CJ has been more forthright: ‘A fundamental lack of interest in the whole area of intellectual property was demonstrated by the Founding Fathers of Australia, the drafters of our national Constitution.’17 There are only two references to the provision in the official records of the debates and the wording of this proposed provision did not undergo substantial revision prior to its inclusion in the finalised Australian Constitution.18 Indeed, the only change was to the place of the ‘and’, leading French CJ to also comment that ‘[s]ome would regard it as symbolic and prophetic of the whole field that a minuscule piece of parsing should be the only event to punctuate the progress of s 51(xviii) through a politically charged drafting process into the birthing document of a new nation.’19
In Grain Pool of Western Australia v Commonwealth20 (‘Grain Pool’), discussed in greater detail in Part III below, the joint judgment commented on the wording of this provision:
The collocation in s 51(xviii) represents a classification of the various species of intellectual or industrial property which had developed in the United Kingdom in the second-half of the nineteenth century. This development had been encouraged by the publication of what became standard treatises on copyright, trade marks and patents.21
Section 51(xviii) brought these types of property within the sphere of federal power, so that the Commonwealth Parliament could enact uniform laws for their regulation,22 just
16 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 492 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 17 Chief Justice Robert French, ‘Intellectual Property – Living in the Twilight Zone’ (Speech delivered at the Licensing Executives Society of Australia and New Zealand Annual Conference, Canberra, 4 April 2009)
While the subject matter of section 51(xviii) does not appear to have excited Australia’s constitutional framers, its passing soon led to the enactment of legislation for each of the areas specified within the provision. The Patents Act 1903 (Cth), Copyright Act 1905 (Cth), Trade Marks Act 1905 (Cth) and Designs Act 1906 (Cth) were all introduced in quick succession by the Federal Parliament.25 While the Copyright Act 1905 is most relevant here, the first case examining the scope and limitations of section 51(xviii) concerned the Trade Marks Act 1905: Attorney General for the State of New South Wales v Brewery Employees Union of New South Wales (‘Union Label’).26 Given that this decision set the standard of interpretation for this constitutional provision for the next 90 years, I will first examine this case before considering how it contributes to determining the nature and any significance of the public domain at this time.
In Union Label the Attorney General for New South Wales and other plaintiffs argued that Part VII of the Trade Marks Act 1905 was unconstitutional on the basis that the subject matter dealt with in that Part did not constitute a trade mark.27 Part VII regulated workers’ trade marks: marks that could be applied to any products produced under union labour as an identifier of the origin of the product. The union label provisions were controversial from their enactment28 and in an article published the same year as the Trade Marks Act was passed Meillon predicts that the union label provisions were
several States’: see W Harrison Moore, The Constitution of the Commonwealth of Australia (1910) 459. 23 See United States Constitution art I, s 8, cl 8; Constitution Act 1867 (Canada) s 91(23). 24 Sam Ricketson ‘The Future of Australian Intellectual Property Law Reform and Administration’ (1992) 3 Australian Intellectual Property Journal 3, 26. 25 See also Benedict Atkinson, The True History of Copyright: The Australian Experience 1905 – 2005 (2007) 15-16. 26 (1908) 6 CLR 469. 27 Union Label (1908) 6 CLR 469, 491. In addition to the intellectual property issues, the High Court also addressed a number of other points, including whether the NSW AG had standing to bring such a proceeding and the division of trade and commerce between the Commonwealth and State governments in the emerging Federation. These points will not be discussed in detail, but see W Harrison Moore, ‘Unconstitutional Legislation’ (1908) 6 Commonwealth Law Review 201, 201-202. 28 See generally Sam Ricketson, ‘The Union Label case – an early Australian IP story’ in Andrew T Kenyon, Megan Richardson and Sam Ricketson (eds), Landmarks in Australian Intellectual Property Law (2009) 15. 33 beyond the powers of the Federal Parliament.29 Indeed, in the same article, Meillon notes that ‘[t]he Constitution Act does not give any definitions or interpretations in respect of the matters it declares to be subjects of legislation (nor would one expect it to), so when it becomes necessary to define them we are thrown back to Common Law’.30 This comment provides one of the few extra-legislative or judicial statements on section 51(xviii) at this time.
In finding for the plaintiffs the High Court split, with Griffith CJ, Barton and O’Connor JJ finding that Part VII was unconstitutional and Isaacs and Higgins JJ both dissenting. The majority judgments argue that Part VII was unconstitutional under section 51(xviii) on the grounds that it did not fall within the category of ‘trade marks’ as conceptualised by the framers of the Constitution in 1900.31 Barton J provided a good summary of this argument, noting that:
If the ordinary or technical sense of the term in 1900 included them [the union label trade mark], or if it was used as a term which had acquired such an inclusive meaning in any legislation which we must take to have been in the minds of the makers of the Constitution at its making, then, but only then, the answer must be in the affirmative. In either case it is to the meaning in 1900 that we must look, for the plain reason that the Constitution previously framed in Australia became law that year, and the framers, cannot, of course, have had in their minds meanings which had not then come into existence.32
Each of the majority opinions carefully considered the state of the law and the meaning of the term ‘trade mark’ prior to 1900, both in pre-Federation and United Kingdom trade mark legislation.33 Further, each majority judgment also conceptualised what that Justice believes constituted the essential components of a ‘trade mark’, ultimately finding that the union label did not fit into this category at 1900.34 That each Justice was able to capture the essential elements of a trade mark at 1900 is particularly interesting given the difficulty that many members of the Parliament experienced when trying to determine what the term ‘copyrights’ meant, only a few years earlier.35
29 J Meillon, ‘The Union Label’ (1905) 3 Commonwealth Law Review 70, 74. 30 Ibid. 31 See Griffith CJ at 501; Barton J at 521; and O’Connor J at 538. See also Donald Kerr, The Law of the Australian Constitution (1925) 54-56; Moore (1910), above n 22, 371-373. 32 Union Label (1908) 6 CLR 469, 521. 33 Union Label (1908) 6 CLR 469, 504-508 (Griffith CJ); 526-530 (Barton J); 534-541 (O’Connor J). 34 Union Label (1908) 6 CLR 469, 513 (Griffith CJ); 525 (Barton J); 540 (O’Connor J). 35 See discussion in Section B below. 34 Further, it is also important to take note of the dissenting opinion of Higgins J. When the High Court addresses section 51(xviii) in Grain Pool it is the reasoning of Higgins J that it adopts, rather than the majority opinions in Union Label.36 Higgins J also deserves praise for his forward-thinking attitude and his astute reflections on the nature of intellectual property generally. Two points warrant consideration.
First, Higgins J was critical of the emphasis that the majority placed on what constituted a trade mark at 1900.37 In arguing against this focus, Higgins J did not limit his analysis to trade marks, but also used the example of copyright in his reasoning. In commenting on the argument of the plaintiffs that section 51(xviii) should be limited to a 1900 interpretation, His Honour noted, perhaps tellingly, that restricting interpretation of section 51(xviii) to the minds of the framers
cannot be confined to the subject of trade marks. It means that the Federal Parliament cannot give validity to any kinds of patents, or to any kinds of copyrights, which were not recognized in 1900….Nor, if the developments of industry should render a further extension of copyright expedient, is it possible for the Federal Parliament to meet the want – if the plaintiffs are right.38
Second, Higgins J instead argued that the primary question should be ‘what is the ambit, the circumference, of the power “to make laws with respect to trade marks”.’39 His Honour further stated that: ‘No doubt, we are to ascertain the meaning of “trade mark” as in 1900….The usage in 1900 gives us the central type ; it does not give us the circumference of the power.’40 It is this discussion that the High Court later relied on in Grain Pool. Higgins J also noted that:
Power to make laws as to any class of rights involves a power to alter those rights, to define those rights, to limit those rights, to extend those rights, and to extend the class of those who may enjoy those rights….The power to make laws “with respect to” these rights involves a power to declare what shall be the subject of such rights.41
This statement raises the issue of the ‘limits’ of section 51(xviii) and the particular types of intellectual property that this provision addresses. In Union Label Higgins J briefly discussed this issue, though prefixes this by noting that Union Label was not the case
36 Grain Pool (2000) 202 CLR 479, 493-494. 37 Union Label (1908) 6 CLR 469, 600. 38 Union Label (1908) 6 CLR 469, 601. 39 Union Label (1908) 6 CLR 469, 604. 40 Union Label (1908) 6 CLR 469, 610. 41 Union Label (1908) 6 CLR 469, 611. 35 ‘to decide precisely what is the outer limit, the ring fence, of this power’.42 This is perhaps understandable given that the majority judgment limitations as to interpreting the trade marks power based on its meaning at 1900. His Honour thus concluded that in his view, section 51(xviii) ‘confers on the Federal Parliament as wide a power, with regard to Australia, as the British Parliament could itself have exercised, provided that the laws would come under the description of “trade mark laws”.’43 Such a statement suggests a very broad power, but Higgins J stressed that section 51(xviii) is not ‘practically unlimited’,44 though did not go into the details of why this was the case. Further, Higgins J suggested that the powers granted to the Federal Parliament were broader than the equivalent United States constitutional provisions, although His Honour did not refer explicitly to section 51(xviii).45 However, such a view was later adopted with respect to section 51(xviii) by the High Court in Grain Pool.46 No other Justice in Union Label entered into a similar comparison.
For the purposes of this discussion, Union Label is significant given that, by virtue of the majority judgments, the powers conferred on the Federal Parliament were restricted to what was considered to be a ‘trade mark’ or ‘copyrights’ at 1900. This narrow reading remained good law for another 85 years and it is undeniable that it had an impact on the confidence of the Federal Parliament to legislate with respect to certain types of intellectual property.47 As Ricketson notes, the Union Label case undoubtedly had a ‘“chilling” effect…on the future development of Australian intellectual property law.’48 In subsequent judicial decisions and government and academic commentaries, section 51(xviii) is often referred to as a hurdle that needs to be overcome for a new type of IP right to be introduced.49 For example, in its 1959 report, the Spicer
42 Union Label (1908) 6 CLR 469, 613. 43 Union Label (1908) 6 CLR 469, 613-614. 44 Union Label (1908) 6 CLR 469, 614. 45 See Union Label (1908) 6 CLR 469, 614: ‘It will also be found, I believe, ultimately, that the phrase under which powers are granted to the Federal Parliament gives to that Parliament even wider scope for its action than is given to the United States Congress by the corresponding grants of power in the United States Constitution.’ 46 Grain Pool (2000) 202 CLR 479, 498. 47 Though of course the Copyright Act 1912 (Cth) was in force for a substantial amount of this period, which incorporated the Imperial Copyright Act 1911. The constitutionality of the operation of the Copyright Act 1911 in Australia was questioned in argument in The Gramophone Company Ltd v Leo Feist Incorporated (1928) 41 CLR 1, 28-29, though confirmed by Gavan Duffy and Starke JJ. 48 Ricketson (2009), above n 28, 34. 49 Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Chairman Sir John Spicer), Report of the Committee appointed by the Attorney-General to consider what alterations are desirable in the copyright law of the Commonwealth (1959) [234], [477], [489], 36 Committee questioned whether the Federal Parliament had the requisite constitutional power to make laws with respect to the makers of sound recordings;50 performer’s protection;51 maps;52 and droit moral.53 In the first instance, the Committee noted that ‘section 51 (xviii) of the Constitution is referring to copyrights of the kind in existence of the date of the enactment of the Constitution’.54 The ghost of Union Label clearly lurked on the sidelines to strike down ultra vires usage of section 51(xviii).
B. ‘COPYRIGHTS’ AT 1900 AND THE PUBLIC DOMAIN
In light of this law the issue that arises here is the relationship between section 51(xviii), the copyrights power, and the public domain at Federation at this time. For this purpose (and even aside from the requirements in Union Label) it is useful to consider what the term ‘copyrights’ meant in 1900. Therefore, in this section I will first consider the meaning of the term ‘copyrights’ at 1900 and then whether the public domain had any part in this definition. This requires a determination of what the framers of the Australian Constitution may have believed it meant and subsequently any role of the public domain in such a definition. It is also useful to start from this position to see whether the public domain has subsequently gained or perhaps lost any ground under section 51(xviii). However, as the comment by French CJ extracted above indicates, copyright and indeed intellectual property more broadly were arguably not matters foremost in the minds of Australia’s constitutional framers. This only serves to make the current task more difficult.
[495] (hereafter ‘The Spicer Committee’); National Archives of Australia, Constitution Review Committee, Series A432, Item 1958/3035 ‘Constitution Review Committee – Section 51(18) – copyright, patents and designs of trademarks’ 1956 – 1959; JC Lahore, ‘Video and Sound Communications – A Copyright Survey’ (1973) 1 Australian Business Law Review 32, 42, 44, 57; Advisory Committee on the Distribution of Powers, Report of the Advisory Committee to the Constitutional Commission (1987) 161; Advisory Committee on Trade and National Economic Management, Report of the Advisory Committee to the Constitutional Commission (1987) 43-46 and Appendix VII ‘Modern Developments in the Law of Copyright, Patents of Invention, Designs and Trade Marks’; Final Report of the Constitutional Commission (1988) vol 2, [10.140]-[10.153]; George Williams, ‘Are Service Marks Trade Marks? Commonwealth Power Over Intellectual Property’ (1995) 6 Australian Intellectual Property Journal 133, 138-140; see also Davis v Commonwealth (1988) 166 CLR 79, 96, where Mason CJ, Deane and Gaudron JJ rejected the validity of sections 22 and 23 of the Australian Bicentennial Authority Act 1980 (Cth) on the basis that section 51(xviii) would not allow the regulation of words including ‘Sydney’, ‘Melbourne’, ‘Australia’, ‘1788’ and ‘200 years’. 50 The Spicer Committee, above n 49, [234]. 51 Ibid [477]. 52 Ibid [495]. 53 Ibid [489]. 54 Ibid [234]. 37
In Union Label the majority judgments were able to envisage succinctly what constituted the essential characteristics of a trade mark at 1900. In contrast, it is apparent that there was a lack of agreement between opinions on the essential characteristics of the term ‘copyrights’ at 1900. While many of the annotated constitutional texts written at both the time of and shortly after the passing of the Australian Constitution provide an idea as to the meaning of the term ‘copyrights’, this was by no means a settled term.55 In fact, there was arguably no clear definition of everything that the term ‘copyrights’ encompassed, nor was there any definitive law with respect to ‘copyrights’ at the framing of the Australian Constitution.56
The use of the term ‘copyrights’ in a constitution, when there was no uniform agreement on the meaning of the term in that jurisdiction or elsewhere brings to mind a comment made by Lord Cranworth in Routledge v Low,57 on the 1842 Literary Copyright Act:
It is remarkable that the modern statute [the Literary Copyright Act], though it repeals all the former statutes, nowhere defines or declares what is to be understood by the word ‘copyright.’ It assumes copyright to be a well-known right, and legislates in respect to it accordingly.58
The framers of the Australian Constitution were not the first group of constitutional creators to use the simple term ‘copyright’: section 91(23) of the Canadian Constitution Act 1867 included this provision many years before an Australian constitution was even envisaged.59 Yet in spite of this precedent, there was still confusion regarding what could and could not be done under the copyrights power, even on issues that today lawmakers and scholars would agree are firmly a part of statutory copyright. Such
55 See, eg, Quick and Garran, above n 11, 593-596; W Anstey Wynes, Legislative and Executive Powers in Australia (1936) 148-149. 56 Kathy Bowrey, ‘When Humanities Does IP’ (Paper presented at the Australian and New Zealand Intellectual Property Academics Conference, Victoria University of Wellington, 25 January 2008). See also Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 500: ‘In 1900, the United Kingdom statutory regimes with respect to copyright, trade marks, patents and designs were of recent origin and, like the common law, they were plainly still in various stages of development. This was true also of the legislation in force in the Australian colonies’. 57 (1868) LR 3 (HL) 100. 58 Routledge v Low (1868) LR 3 (HL) 100, 112. See also Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (1999, 2008 reissue) 95-100. 59 In their annotated constitutional text, Quick and Garran provide quite an extensive commentary on the Canadian position and the passing of various Canadian copyright laws: see Quick and Garran, above n 11, 594-596. 38 confusion is particularly evident in the parliamentary debates accompanying the passing of the Copyright Act 1905.60 This is arguably (at least in part) due to the fact that, prior to the Copyright Act 1905, there were few singular copyright statutes that covered all areas that could be considered to in some way be ‘copyright’. Thus there was no definite conception of this term or definitive law with respect to ‘copyrights’.61
The treatment of one provision of the 1905 Act in particular illustrates the lack of clarity surrounding the term at this time. Section 7 of the 1905 Act read:
Subject to this and any other Acts of Parliament, the Common Law of England relating to proprietary rights in unpublished literary compositions shall, after the commencement of this Act, apply throughout the Commonwealth.
Under the colonial copyright laws, statutory copyright only subsisted once a literary work was published.62 This left the status of unpublished literary works unclear. Yet a lack of statutory recognition did not mean that such works were unprotected: it appears that the common law provided protection for such works until they were published, or even if they remained unpublished.63 The effect of section 7 of the 1905 Act was to utilise the common law of England in the protection of all unpublished literary works, given that, under the 1905 Act, copyright still only subsisted once a literary work had been published.64
Senator Symon, one of the most vocal critics of the provisions of the Copyright Bill, questioned in parliamentary debate whether section 7 was within the power of the Commonwealth under section 51(xviii):
Senator KEATING. – We can provide in this Bill, which deals with copyright, that the common law of England with regard to it in any particular shall remain in force, subject to this and any other Act of this parliament, throughout the whole of the Commonwealth ; and if we do so, we shall have taken from the States for all time the
60 The Copyright Act 1905 is discussed in greater detail in Chapter Five. 61 Bowrey (2008), above n 58. See also Commonwealth of Australia, Parliamentary Debates, Senate, 23 October 1912, 4510 (Senator JH Keating): I think I am not far wrong in saying that in 1905 Australia led the way so far as legislation on the subject of copyright is concerned. For the first time in English-speaking communities one Act recognised those rights which are ordinarily summed up in the term ‘copyright’. We practically codified the law on that subject. 62 See, eg, Copyright Act 1869, 33 Vict no 350 (Vic), s 14. 63 See Chapter Four Part II Section A(ii) below; see also Acland Giles, ‘Literary and Artistic Copyright in the Commonwealth – I’ (1905) 3 Commonwealth Law Review 107. 64 Copyright Act 1905 (Cth) s 13(2). 39 jurisdiction to deal with that particular subject of legislation. It must be remembered that in these matters the States have concurrent jurisdiction with the Commonwealth. Senator Sir JOSIAH SYMON. – The Commonwealth has no jurisdiction in regard to that subject at all. Senator KEATING. – I subject that it has. Senator Sir JOSIAH SYMON. – Where do we get it? Senator KEATING. – We have it as something incidental to the execution of our powers of jurisdiction in the matter of copyright. Senator Sir JOSIAH SYMON. – But it is not copyright. Senator KEATING. – I am certain that we have jurisdiction in regard to this matter. I again point out that, construing the term copyright in its strictest and most rigid sense, this is a matter which does not wholly and entirely come within copyright law, as it has been and always must be dealt with in connexion with copyright law. Senator Sir JOSIAH SYMON. – No, it has not. A reference to it in a copyright law does not prove that it can be dealt with under a power to enact copyright law. Senator KEATING. – I will ask my honorable and learned friend if he can refer me to any extended treatise on the law relating to unpublished literary manuscript which is not found in a text-book dealing with the law of copyright. This has always been considered as an adjunct of the law of copyright, just as have the questions of a performing right, and other rights which have grown up from time to time.65
The difficulty was that, in this case, the Federal Parliament was using a copyright statute to enact the common law of England. It was unclear as to whether this was a proper exercise of the ‘copyrights’ power, despite the fact that it technically affected Australian copyright.66 Today, there would be no question that perpetual protection for unpublished works would come under the umbrella of copyright or that the Federal Parliament has the power to provide such protection.67
This discussion suggests that when considering the standing of the public domain within the concept of ‘copyrights’ at Federation two factors need to be kept in mind: the limitations placed on the copyrights power due to Union Label and the confusion surrounding the meaning of the term ‘copyrights’. Thus, the question arises: where was the public domain amidst all this confusion? Despite these restrictions, however, there is evidence to suggest that the public domain was a feature of the law of copyright at this time. Two examples provide such evidence in an Australian context: first, the use of the
65 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2162. 66 See also Quick and Garran, above n 11, 593. This text states that ‘It [copyright] must be distinguished from the property which an author has in his unpublished works, which is sometimes loosely called “copyright.” At common law and independently of statute authors have property in their unpublished literary and artistic works.’ Thus even Quick and Garran were divided regarding the position on unpublished works under the copyrights power. 67 Today, unpublished works are protected pursuant to Copyright Act 1968 (Cth) s 32(1). I will discuss the repercussions of this for the public domain in greater detail in Part III below. 40 term ‘public domain’ to represent this space by this time; and second, the colonial pre- legislation position and subsequent colonial copyright statutes.
First, by 1900 the term ‘public domain’ was already in use, with its most prominent appearance being in the first Berne Convention for the Protection of Literary and Artistic Works in 1886. Several Articles refer to the term ‘public domain’, with the term first appearing in Article 6:
Lawful translations shall be protected as original works. They shall consequently enjoy the protection stipulated in Articles 2 and 3 as regards their unauthorized reproduction in the countries of the Union.
It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers.68
Article 14 also referred to the public domain:
Under the reserves and conditions to be determined by common agreement, the present Convention shall apply to all works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin.69
Given that Quick and Garran, in their 1901 annotated constitutional text, and the Federal Parliament during the enactment of the 1905 Act both refer to the Berne Convention,70 it can be presumed that by 1900 the Berne Convention already enjoyed a leading place in international and local, Australian-based, copyright issues.71 This provides some evidence that the term ‘public domain’ was a part of copyright discourse at this time, and therefore arguably part of the law of ‘copyrights’ at 1900. It does not, however, suggest that any special significance was ascribed to this term.72
68 Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9, 1886, Article 6. 69 Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9, 1886, Article 14. 70 See, eg, Commonwealth of Australia, Parliamentary Debates, Senate, 24 August 1905, 1427, 1428, 1430 (Senator JH Keating); Commonwealth of Australia, Parliamentary Debates, Senate, 30 August 1905, 1646 (Senator Staniforth Smith). 71 See Quick and Garran, above n 11, 594. In his Union Label judgment Griffith CJ places particular emphasis on an equivalent trade mark convention, the 1883 Paris Convention for the Protection of Industrial Property, illustrating the weight such a convention had when interpreting the term ‘trade mark’: see Union Label (1908) 6 CLR 469, 507-508. 72 Aside from explicit reference to the term ‘public domain’, the idea that copyright only subsisted for a limited period of time was explicitly referenced in the title of the Statute of Anne, and two of the colonial copyright statutes. See An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, During the Times therein mentioned, 1710, 8 Anne, c19; An Act to secure to Proprietors of Designs for Articles and Works of Manufacture 41
More guidance on what this term represented, and its significance at 1900, however, is evident in the second example. An oft-cited maxim in public domain literature is a comment by Rose that ‘[c]opyright and the public domain were born together.’73 However, as I illustrated in Chapter One, using Clarke’s His Natural Life as my primary example, the public domain – at least with respect to published works – technically predated statutory copyright law in the colonies.74 While unpublished works that remained unpublished may have continued to enjoy protection under common law copyright, the majority of published works, prior to the enactment of the individual colonial copyright statutes and the Imperial International Copyright Act 1886,75 entered the public domain upon publication.
Nevertheless, despite the introduction of statutory copyright law, the public domain still existed. Indeed, when one considers the colonial copyright statutes, it appears that these laws actually created a simple dichotomy: there were works that were protected by copyright law and works that were not protected by copyright law. Copyright law was quite simple at this time: it provided that the proprietor of the copyright was entitled to the ‘sole and exclusive right’ to make, print or copy the work was a part of copyright,76 for a limited period of time. Any act that was not specified in these rights – for example, the right of translation, or the right of dramatisation – was a public domain act that anyone could technically undertake, as highlighted in the Weekes v Williamson case discussed in Chapter One. Similarly, once the limited term of copyright expired (life of the author plus seven years, or 42 years, whichever was longer),77 then that work entered the public domain. Further, certain provisions of these colonial statutes reflected the fact that copyright subsisted in a work, or a work was unprotected by copyright: for
and Art, and to Proprietors of Works of Literature and Fine Art, the Copyright of such Designs and Works for a limited period, 33 Vict no 350 (Vic); An Act to secure to Proprietors of Works of Literature and Fine Art and to Proprietors of Designs for Articles and Works of Manufacture and Art the Copyright of such Works and Designs for a limited period, 22 Vict no 20 (NSW). 73 Mark Rose, ‘Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain’ (2003) 66 Law and Contemporary Problems 75, 76. But see Ronan Deazley, Rethinking Copyright: History, Theory, Language (2006) 108-109. 74 See Chapter One Part I above. 75 49 & 50 Vict, c 33. 76 See, eg, Copyright Act 1869 (Vic) 33 Vict no 350, s 2. 77 See, eg, Copyright Act 1869 (Vic) 33 Vict no 350, s 14. 42 example, section 37 of the Victorian Copyright Act 1869 made explicit reference to artistic works ‘in which there is no copyright’.78
C. CONCLUSION
Several points can be distilled from the preceding analysis, providing a greater understanding of the public domain at this time.
First, there is evidence to suggest that, at Federation, the concept of the public domain was a part of the law of copyright at this time. The term itself had already been used, for nearly 15 years, in international treaties that were being noted and debated in Australia.
Second, what this term represented, at least in the narrow sense as a space where copyright protection no longer applied, was also reflected in these international treaties and Australia’s own copyright law.
Third, in light of this analysis, it is arguable that the public domain constituted part of what the constitutional framers considered the term ‘copyrights’ to mean prior to Federation. This appears to be the case despite the narrow reading of section 51(xviii) from the Union Label decision and the confusion surrounding what the term ‘copyrights’ meant – and, indeed, the lack of interest in intellectual property that the silence of the framers arguably illustrates. However, it is also clear that the scope of meaning of the public domain was anything but certain.
I will now turn to the role of the public domain in modern interpretations of the ‘copyrights’ power.
78 Copyright Act 1869 (Vic) 33 Vict no 350, s 37. See Chapter Four Part II Section E(i) below. 43 III. MODERN INTERPRETATIONS OF SECTION 51(XVIII) AND THE PUBLIC DOMAIN
A. THE AUSTRALIAN TAPE MANUFACTURERS, NINTENDO AND GRAIN POOL DECISIONS AND BEYOND
Following the Union Label case, section 51(xviii) received sporadic judicial attention and it was not until the mid-1990s that the High Court began to waiver from the precedent established by that decision.
In Australian Tape Manufacturers Association Ltd v Commonwealth79 (‘Australian Tape Manufacturers’), the High Court considered the constitutionality of a levy imposed on the sale of blank tapes, introduced as part of the Copyright Amendment Act 1989 (Cth). The plaintiff contended, among other arguments, that the levy was outside the scope of section 51 (xviii).80 This proposition failed and the legislation was found to be unconstitutional on the basis that the levy was a tax.81 Several of the judgments of the Court refer to the section 51 (xviii) argument in obiter but do not engage in any substantial discussion on either the provision or its application to the levy.82 However, the Court did find that these amendments were within the power of section 51(xviii).83
The following year the High Court considered section 51(xviii) in slightly greater detail in Nintendo Co Ltd v Centronics Systems Pty Ltd84 (‘Nintendo’). The plaintiff, Nintendo, alleged that Centronics Systems had infringed a number of its intellectual property rights. When the case reached the High Court, the copyright and trade mark claims had already been resolved and the issue in contention was Nintendo’s claim
79 (1993) 176 CLR 480. 80 Australian Tape Manufacturers (1993) 176 CLR 480, 514 (Dawson and Toohey JJ); Australian Tape Manufacturers (1993) 176 CLR 480, 532 (McHugh J). Another constitutional provision that may arguably affect copyright, section 51(xxxi), which provides for the acquisition of property on just terms, was also raised in argument. However, in this Chapter I will not address any arguments relating to section 51(xxxi). See Appendix A for a greater discussion on these issues. 81 Australian Tape Manufacturers (1993) 176 CLR 480, 500-508. 82 Australian Tape Manufacturers (1993) 176 CLR 480, 495 (Mason CJ, Brennan, Deane and Gaudron JJ); Australian Tape Manufacturers (1993) 176 CLR 480, 514 (Dawson and Toohey JJ); see also Darren Challis, ‘Ejecting the Blank Tape Levy: Australian Tape Manufacturers Association Ltd v Commonwealth of Australia’ (1994) 16 Sydney Law Review 537, 538. 83 Australian Tape Manufacturers (1993) 176 CLR 480, 495, 520, 532-533. 84 (1994) 181 CLR 134. 44 under the Circuit Layouts Act 1989 (Cth).85 After analysing the sections of the Act in question, the joint judgment86 reflected on the role of section 51 (xviii):
The grant of Commonwealth legislative power which sustains the Act is that contained in s. 51(xviii) of the Constitution with respect to “Copyrights, patents of inventions and designs, and trade marks”. It is of the essence of that grant of legislative power that it authorizes the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks and other products of intellectual effort. It is of the nature of such laws that they confer such rights on authors, inventors and designers, other originators and assignees and that they conversely limit and detract from the proprietary rights which would otherwise be enjoyed by the owners of affected property.87
This statement is cited in Grain Pool88 and its effect is significant: by extending the application of section 51(xviii) to ‘other products of intellectual effort’, the majority in Nintendo arguably ‘establishe[s] an almost limitless scope for this power.’89 This is true in one respect: given this statement, it is unlikely that the High Court will find that the creation of rights and specific legislation for a new form of intellectual property is unconstitutional. This is supported by the fact that neither the circuit layout legislation considered by the Court in Nintendo, nor the plant breeder’s rights legislation in Grain Pool were found to be unconstitutional. However, as I discuss below, the ‘limits’ of section 51(xviii) may lie in how far these intellectual property rights can be extended. Throughout the history of the concept of intellectual property, newer forms of IP and rights have emerged. Nevertheless such rights have always been limited in both time and application.90 I will explore the role of the public domain in this discussion in greater detail below.
The next, and arguably the major, interpretation of section 51(xviii) by an Australian court occurred six years later in Grain Pool. Similar to Nintendo, the case concerned a newer form of intellectual property – plant breeder’s rights – which are not explicitly referenced in the Constitution. The plaintiff claimed that two Commonwealth laws, the Plant Variety Rights Act 1987 (Cth) and the subsequent Plant Breeder’s Rights Act
85 Nintendo (1994) 181 CLR 134, 141. 86 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Dawson J delivered a separate judgment but agreed with the joint judgment. 87 Nintendo (1994) 181 CLR 134, 160 (citations omitted). 88 Grain Pool (2000) 202 CLR 479, 493. 89 Charles Lawson, ‘Revisiting the Commonwealth Parliament’s Legislative Authority for Patent and Patent-Like Scheme Under the Constitution’ (2006) 17 Australian Intellectual Property Journal 243, 243. 45 1994 (Cth), were not covered under section 51 (xviii) and were therefore invalid.91 In finding that the Plant Breeder’s Rights Act was valid under the patents of inventions power, the Court made a number of significant statements regarding the position of section 51(xviii).92
First, the joint judgment stated that under principles of constitutional interpretation, section 51(xviii) is to be ‘construed “with all the generality which the words used admit.”’93 This statement is the first part of a broader constitutional test to be used in determining the validity of a piece of legislation and is most relevant to the discussion at hand.94 The joint judgment also agreed that Nintendo concept of ‘products of intellectual effort’ embraces a ‘variable rather than a fixed constitutional criterion’,95 indicating the broad nature of section 51(xviii). Further, the joint judgment also found that the boundaries of section 51(xviii) should not be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trade mark’.96 This statement reflects the belief of Higgins J that 1900 only gives the ‘central type’ of a trade mark, rather than the ‘circumference of the power.’97 Yet in Grain Pool the joint judgment still utilised 1900 and some pre-Federation position as a starting point in much of its discussion on the patents power, indicating that this date retains significance in constitutional interpretation.98
90 See Brian Fitzgerald, ‘Grain Pool of WA v. The Commonwealth’ [2001] 2 European Intellectual Property Review 104, 106. 91 Grain Pool (2000) 202 CLR 479, 489. For a more substantial analysis of the issues leading to this case see Matthew Rimmer, Intellectual Property and Biotechnology (2008), Chapter Two, ‘Franklin barley: patent law and plant breeders’ rights’. 92 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ delivered the joint judgment. Kirby J delivered a separate judgment but agreed with the majority on the validity of the laws. 93 (2000) 202 CLR 479, 492, citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207. 94 Grain Pool (2000) 202 CLR 479, 492. 95 Grain Pool (2000) 202 CLR 479, 493; see also Lawson, above n 89, 247. 96 Grain Pool (2000) 202 CLR 479, 495-496. 97 Grain Pool (2000) 202 CLR 479, 493-494. 98 See Grain Pool (2000) 202 CLR 479, 496-497. The joint judgment stated that ‘it is important to note that, within the terms used by Higgins J in the passages from the Union Label Case set out above, it would be wrong to regard the legislative grant of monopoly rights in new plant varieties as being, in 1900, outside the “central type” of the subject of patents of inventions.’ Comments made by Judge Rich in the US decision Imazio Nursery Inc v Dania Greenhouses 69 F 3d 1560 (1995) are cited as authority for this proposition. See also Adrienne Stone, ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 137, 149, footnote 72. 46 Kirby J, however, took a different approach, disagreeing with the emphasis that the joint judgment placed on 1900, ‘lest that consideration be thought to control, or even significantly to influence, the contemporary meaning of the constitutional words’.99 His Honour further argued that:
[t]he words used in the Constitution, and specifically those used in s 51(xviii) are not shackled to the legal understandings about the patents power in 1900. It is a mistake to adopt that year as an important, and a greater error to regard it as a critical or essential, reference point.’100
Kirby J also considered Union Label in detail, noting that ‘it is easy to understand’ why the High Court in 1908 would have adopted a 1900 interpretation of the clause,101 which in turn narrowed the provision considerably.102 However, by Grain Pool the methods of constitutional interpretation and the weight that should be given to the intentions of the Framers had substantially changed.103 Kirby J thus adopted what Rimmer describes as a ‘futuristic view’ where section 51(xviii) ‘should be read in such a way as to promote scientific innovation and technological development.’104
Second, the joint judgment also found section 51(xviii) to be broader than the equivalent United States provision, despite arguments by the plaintiff that the opposite was true. As I discussed above in Part I of this Chapter, the latter clause states that the US Congress has the power ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’.105 The joint judgment stated that although both constitutional intellectual property clauses ‘looked ahead’106 that was where the similarities end. The joint judgment further noted that the US provision ‘contains a limitation, an express purposive element…the objective of the promotion of the progress of science and the useful arts’.107 According to the joint judgment, section 51(xviii) contains no such restrictive element and it is ‘open to the Parliament to pursue its policies by legislation with respect to various subject matters, if one of them appears
99 Grain Pool (2000) 202 CLR 479, 515. 100 Grain Pool (2000) 202 CLR 479, 520. 101 Ibid. 102 Grain Pool (2000) 202 CLR 479, 521. 103 Grain Pool (2000) 202 CLR 479, 525. 104 Rimmer (2008), above n 91, 56. 105 United States Constitution art I, s 8, cl 8. 106 Grain Pool (2000) 202 CLR 479, 497. 107 Grain Pool (2000) 202 CLR 479, 498. 47 in s 51(xviii) on an adequate reading of the text.’108 Section 51 (xviii) should therefore be considered broader than the US intellectual property provision.
Third, Kirby J made an interesting comment regarding the potential limits of section 51(xviii). His Honour states that:
No absolute or unlimited rule may be stated. The protection of intellectual property rights must be afforded in a constitutional setting which upholds other values of public good in a representative democracy. In the United States, the relevant head of constitutional power has been viewed as containing in-built limitations many of which are derived from the competing constitutional object of public access to information: Graham v John Deere Co (1966) 383 US 1 at 6; Feist Publications Inc v Rural Telephone Service Co, Inc 499 (1991) US 340 at 348. In Australia, the constitutional setting is different but the existence of competing constitutional objectives, express and implied, is undoubted. See generally Lessig, Code and Other Laws of Cyberspace (1999), pp 131, 133 – 134.109
Unfortunately, neither Kirby J nor the joint judgment explores the possible limitations on the powers contained therein. However, Kirby J’s statement is noteworthy in that it suggests ‘competing constitutional objectives, express and implied’ provide some limitation on section 51(xviii). Given the relevance of this statement to the current discussion, I will consider this argument in more detail later in this Chapter, in light of other comments made by Kirby J on limitations of constitutional powers and subsequently the role of the public domain under modern interpretations of section 51(xviii).
It will have become apparent that in the few cases that consider section 51(xviii), little attention has been given to how the term ‘copyrights’ should be interpreted as part of this provision. There has been no equivalent to the Grain Pool ‘patents of inventions’ analysis for copyright law. While the reason for this is arguably the lack of an appropriate case, it may also be the case that today the term ‘copyrights’ is considered so broad that few would challenge the constitutionality of any particular legislation on this basis. For example, although the 1959 Spicer Committee report considered droit moral to possibly be beyond the copyrights power,110 by 2000 this was clearly not the dominant view, illustrated by the introduction of amending legislation providing
108 Ibid (citation omitted). 109 Grain Pool (2000) 202 CLR 479, 531, footnote 266. 110 The Spicer Committee, above n 49, 489. 48 comprehensive protection for this ‘neighbouring right’.111 Further, although two post- Grain Pool cases consider section 51(xviii) in a copyright context, neither sheds any additional light on the term ‘copyrights’ as it appears in the Constitution.
First, in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd112 (‘Desktop Marketing’) Sackville J considered section 51(xviii) on the basis of defendant Desktop Marketing’s argument that the Federal Court follow the US decision Feist Publications v Rural Telephone Service Co113 (‘Feist’), a case involving similar facts.114 Sackville J rejected this suggestion as there were constitutional aspects to the Feist decision – namely the ‘purposive element’ inherent in the US decision identified in Grain Pool and the fact that section 51(xviii) should be given a broad interpretation – that were not present in Desktop Marketing.115 The result in this case, as I discussed in Chapter One, was to lower the standard of originality for the subsistence of copyright in Australia, impacting on the size of one category of Australia’s public domain.116
Second, in Stevens v Kabushiki Kaisha Sony Computer Entertainment117 (‘Sony’), Kirby J also makes passing reference to a number of constitutional aspects that His Honour believes were raised by the issues in that case.118 In Sony the High Court considered the technological protection measure provisions introduced into Australian law as part of the Copyright Amendment (Digital Agenda) Act 2000 (Cth) (‘the Digital Agenda Act’). Sony alleged that Eddie Stevens, a computer technician, breached section 116A(1) of the Copyright Act (which had been introduced as part of the Digital Agenda Act), as Stevens sold ‘mod-chips’ that could be used as a circumvention device on Sony PlayStations.119 The High Court found that the Boot-ROM and the access code that
111 See Copyright Amendment (Moral Rights) Act 2000 (Cth). Of course, given that the Berne Convention requires signatories to provide adequate protection for moral rights it is arguable that the amending legislation would have been supported by the external affairs power (section 51 (xxix)). 112 Desktop Marketing (2002) 119 FCR 491. 113 499 US 340 (1991). 114 Desktop Marketing (2002) 119 FCR 491, 595. 115 Desktop Marketing (2002) 119 FCR 491, 596. When the issue came before the High Court recently in the hearing for IceTv Pty Ltd v Nine Network Australia Ltd, the decision in Feist was raised again, with Gummow J noting that Feist was influenced by Article I, Section 8, Clause 8 of the US Constitution: see Transcript of Proceedings, IceTv Pty Limited & Anor v Nine Network Australia Pty Ltd (High Court of Australia, Gummow J, 16 October 2008). 116 See Chapter One Part III above. 117 (2005) 224 CLR 193. 118 Sony (2005) 224 CLR 193, 256-257. 119 Sony (2005) 224 CLR 193, 204-206. 49 Sony argued was a technological protection measure did not constitute a TPM for the purposes of the Copyright Act 1968 (Cth).
Kirby J only briefly mentioned the interrelationship between the Australian Constitution and copyright law. However, his comments are particularly interesting when considered against the broader theme of this Chapter, determining any constitutional foundations of Australia’s public domain. Indeed, Kirby J’s comments in Sony actually provide a useful introduction to an analysis of modern interpretations of section 51(xviii) and the public domain:
To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.120
This statement is rare in constitutional jurisprudence as it suggests actual limits to section 51(xviii) and the copyrights power. As Lawson notes, although both the joint judgment and Kirby J’s judgment in Grain Pool suggest limits to this provision, ‘[b]oth were less clear about the outer limits.’121 Other commentators agree that there is confusion regarding the boundaries of section 51(xviii). For example, Fitzgerald argues, in relation to Grain Pool, that:
[T]he majority, in suggesting that Article 1 s. 8(8) of the U.S. Constitution is narrower than section 51(xviii) in that it requires a purpose of promoting the progress of science and the useful arts, appears to say that a variety of intellectual property rights (from high to low intellectual input) can be legislated under the section 51(xviii) head of power. It is not clear whether the majority are also suggesting that these rights once legislated have any constitutional limit in the name of the public domain.122
It is this final statement by Fitzgerald that I will now use to evaluate the modern position of Australia’s public domain.
B. ‘COPYRIGHTS’ TODAY AND AUSTRALIA’S PUBLIC DOMAIN
To date the majority of case law on section 51(xviii) considers the validity of newer forms of intellectual property rights. What these decisions do not consider in any great detail is the possible limitations on these new forms of IP. For the purposes of the
120 Sony (2005) 224 CLR 193, 257. 121 Lawson, above n 89, 248. 50 present discussion this lack of analysis make the task of determining whether there is a place for the public domain under the ‘copyrights’ power today more difficult. However, in this section I will endeavour to evaluate the place of the public domain under these modern interpretations of section 51(xviii) and subsequently whether the public domain acts as an inherent constitutional limitation on the laws that the Parliament can pass with respect to ‘copyrights’.
It is apparent from the above analysis that, over the last 100 years, there has been a major expansion of the interpretation of the section 51(xviii) powers in terms of new intellectual property rights. In a similar vein, there has also been an expansion as to what falls under the heading of ‘copyrights’; for example, in the past decade alone the Parliament passed a new ‘communication right’;123 new exceptions to infringement;124 moral rights provisions;125 and technological protection measure and digital rights management provisions.126 Only the first two would arguably come under a traditional conception of ‘copyrights’, but all four categories escaped the scrutiny of a constitutional challenge.
One important issue that arises is who would have the standing to bring such a challenge before the High Court. Section 51(xviii) issues have been raised in two types of cases: direct constitutional challenges (Union Label; Australian Tape Manufacturers; Grain Pool) and as part of the arguments raised by the defence in an infringement action (Nintendo; Desktop Marketing). Today, according to constitutional commentators Blackshield and Williams, in direct constitutional challenges the High Court has displayed flexibility as to who can establish standing in such cases.127 Most recently, in Pape v The Commissioner of Taxation of the Commonwealth of Australia,128 six members of the High Court agreed that Bryan Pape, a private individual, had standing
122 Fitzgerald, above n 90, 106 (citations omitted). 123 Copyright Act 1968 s 31(1)(iv), introduced as part of the Copyright Amendment (Digital Agenda) Act 2000 (Cth). 124 See, eg, Copyright Act 1968 ss 41A, 43C, 47J, 109A, all introduced as part of the Copyright Amendment Act 2006 (Cth). 125 See Copyright Amendment (Moral Rights) Act 2000. 126 See Copyright Amendment (Digital Agenda) Act 2000; Copyright Amendment Act 2006 (Cth). 127 Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 623. 128 [2009] HCA 23. 51 to challenge the constitutionality of the Tax Bonus for Working Australians Act 2009 (Cth) granting lump-sum bonuses to Australian taxpayers.129
As such, it may be that representative, not-for-profit bodies such as CHOICE (formerly the Australian Consumers Association’),130 Electronic Frontiers Australia131 and Australian Digital Alliance,132 all of whom have appeared as amicus curiae in recent copyright cases,133 could establish standing to challenge the validity of such amendments. Indeed, it is arguably a natural progression that eventually such organisations may be more pro-active in challenging copyright legislation passed by the Federal Parliament that is detrimental towards their constituents, particularly those concerning consumer-focused digital technologies. However, despite the possibility of such challenges, it is unlikely that today the High Court would find any new right – whether protecting a newer form of IP, or an expansion of an existing statute - beyond the power of the Parliament under section 51(xviii) in a direct constitutional challenge.
Yet aside from the expansion of the types of right that will fall under the section 51(xviii) powers, it is arguable that many of the fundamental aspects of the types of intellectual property covered remain the same. For example, Kirby J posited in his Grain Pool judgment that:
129 Pape v The Commissioner of Taxation of the Commonwealth of Australia [2009] HCA 23, [45]-[53] (per French CJ); [2009] HCA 23, [150]-[159] (per Gummow, Crennan and Bell JJ); and [271]-[274] (per Hayne and Kiefel JJ). 130 See CHOICE Online
Although the analysis by Kirby J differs from the joint judgment in Grain Pool – Kirby J would give a broader interpretation to section 51(xviii), though both judgments reached the same conclusion – His Honour’s conception of what constitutes a ‘patent of invention’ in a constitutional context is quite reasonable. It appears to capture the essence of what the Federal Parliament intends to do when it grants patent protection.135
Most important for the present discussion is that Kirby J’s statement explicitly recognises that the Federal Parliament grants the exclusive right to exploit the patented object or process ‘for a limited time’. Such a statement reveals what may be arguably one of, if not the major, limitations of the powers of the Federal Parliament under section 51(xviii).136 While newer forms of what fall under the ‘copyrights’ and ‘patents of invention’ powers emerge, a limited term of protection remains not only for copyright but all forms of intellectual property listed in section 51(xviii). Some of these are subject to registration requirements and in some cases the applicable period can be renewed where additional fees are paid.137 In theory, this could lead to perpetual protection, albeit in only a few cases, dependant on what individual or company continues to renew their registration. However, as an example, a trade mark would need to be renewed approximately eleven times to reach the current, complete term of copyright protection for a literary work, based on calculations undertaken in Chapter Seven below.138
134 Grain Pool (2000) 202 CLR 479, 532. 135 See generally Angus J Wells, ‘Patenting New Life Forms: An Ecological Perspective’ [1994] 3 European Intellectual Property Review 111 (discussing the changing nature of patents and what this type of intellectual property could be used to protect). 136 Fitzgerald makes a similar argument: see Fitzgerald, above n 90, 106. 137 See, eg, Patents Act 1990 (Cth) s 67 (term of standard patent), s 68 (term of innovation patent) and ch 6 pt 2 (Extension of term of standard patents relating to pharmaceutical substances); Trade Marks Act 1995 (Cth) s 72(3) (term of registration) and pt 7 div 2 (renewal of registration); Designs Act 2003 (Cth) s 46(1) (term of registration) and s 47 (renewal of registration). 138 See Chapter Seven Part III, Section A(iii) Table K below. This has actually occurred in the case of the first trade mark registered under the Trade Marks Act 1905. The mark, a pine tree image owned by Fisons in the UK, is still protected today and is due for renewal in 2014. At that time, the mark will have been protected for 107 years. 53 Thus, while the High Court in both Nintendo and Grain Pool found circuit layout and plant breeder statutes to be a legitimate exercise of power respectively, in both cases this newer form of intellectual property right had already been limited in length. Under the Circuit Layouts Act 1989, an eligible layout is protected for ten years from the end of the calendar year in which the layout is first commercially exploited or made.139 Pursuant to the Plant Breeder’s Rights Act 1994, a tree or vine is protected for 25 years from being made, while other varieties are protected for a period of 20 years from creation.140
Therefore, even under the more modern and expansive Nintendo and Grain Pool interpretations of section 51(xviii), it is open to suggestion that these rights need to be interpreted against the ‘bedrock’, to use Kirby J’s term, of the public domain. The various types of intellectual property rights granted under these powers remain limited in time, including those that would be considered part of ‘copyrights’. This has been the case since before Australian Federation, as illustrated earlier in this Chapter. Thus if the ‘constitutional text’ - the power of the Parliament under section 51(xviii) to legislate with respect to ‘copyrights’ - ‘is to be construed with all the generality which the words used admit’,141 then it is arguable that this ‘limited time’ aspect of the public domain must be recognised. It is an inherent feature, or part of the ‘central type’ of copyright. As a result, while Australia may not have an explicit statement in the Constitution recognising the public domain, there is evidence to suggest that, by implication, it is a theoretical limit on the power of the Parliament under section 51(xviii) to legislate with respect to ‘copyrights’.
The existence of this implication raises an important question: does this mean that the public domain could be used to limit, in practice, what the Federal Parliament can do pursuant to its ‘copyrights’ power and with respect to copyright law more generally? If the answer to this question is ‘yes’, then Australia’s public domain gains much greater constitutional significance as it could be positively invoked as a limitation on the power of Parliament.
139 Circuit Layouts Act 1989 ss 5 and 17. 140 Plant Breeder’s Rights Act 1994 s 22(2)(a) and (b). 141 Grain Pool (2000) 202 CLR 479, 493. 54 One issue in particular is worth addressing: whether the public domain, as an inherent limitation on section 51(xviii), could be used to strike down any law that introduces perpetual copyright for all manner of works and other subject matter. By perpetual I mean indefinite, as provided under law: it is of course arguable that given the length of life expectancies and the incremental increase of the existing term, copyright seems, in many senses, practically perpetual already.142 However, in terms of what the Copyright Act 1968 currently provides, perpetual copyright protection for a number of works does already exist under Australian copyright law. First, unpublished works that remain unpublished are protected indefinitely.143 Second, under section 5(2) of the Olympic Insignia Protection Act 1987 (Cth), the Olympic rings symbol is also granted perpetual protection.144 The ring symbol is considered an ‘original artistic work in which copyright subsists.’145
Nevertheless, despite the existence of these specific types of perpetual copyright, a grant of indefinite protection for all works and subject matter may be another issue. As I noted earlier in this Chapter, statutory copyright has always been a limited right and the public domain continues on the basis of this restricted right. The Berne Convention standard of ‘life of the author plus 50 years’ continues today and, even in jurisdictions where an extension of this minimum length has occurred this period has usually only been extended for approximately 20 years.146 Perpetual copyright for unpublished works still exists today under the Copyright Act 1968 without any constitutional difficulties: however, it is arguably constitutional as this doctrine developed prior to Federation and is subsequently ingrained in Australian copyright law. Currently, there is no standard for an indefinite period of protection for all copyright works in existence anywhere in the world.147
142 See Chapter Seven for a more detailed account of life expectancies and the copyright term today. 143 See, eg, Copyright Act 1968 s 33(3), 34, 180(1)(a). 144 Olympic Insignia Protection Act 1987 (Cth) s 5(2)(a). A few limited exceptions apply for where usage of this symbol will not constitute an infringement: Olympic Insignia Protection Act 1987 s 5(2)(b). 145 Olympic Insignia Protection Act 1987 s 5(1). 146 See, eg, Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/9 art 1(1). 147 As with Australia, a number of countries make provision for limited perpetual copyrights: see, eg, Copyright, Designs and Patents Act 1988 (UK) sch 6; Copyright Act 1987 (Sg) s 28(3). 55 There are some uncertainties with this argument. First, the High Court has made few references to the public domain148 and there has never been a reference to copyright’s public domain in the ‘limited time’ sense in either a constitutional or legislative deliberation. The most recent comments of the High Court on this doctrine, in IceTv Pty Ltd v Nine Network Australia Pty Ltd, occurred in a deliberation on another aspect of the public domain: the idea/expression dichotomy.149 Those comments do suggest, however, some recognition by the Court of the place of this doctrine in copyright law. For example, as the joint judgment of Gummow, Hayne and Heydon JJ noted:
A safer, if necessarily incomplete, guide when construing Pt III of the Act is the proposition that the purpose of a copyright law respecting original works is to balance the public interest in promoting the encouragement of “literary”, “dramatic”, “musical” and “artistic works”, as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced.150
This comment suggests that interpretation of Part III of the Copyright Act 1968 – the part that stipulates the nature of copyright for works and provides the relevant term of protection – needs to be read against the ‘public interest in maintaining a robust public domain in which further works are produced.’ Thus, if the High Court is willing to read this doctrine into a legislative discussion, it may also be willing to incorporate the public domain – and all its meanings, not only the ‘limited times’ aspect - into subsequent constitutional considerations on the ‘copyrights’ power.
Second, however, as the obiter in Nintendo and judgments in Grain Pool establish, judicial interpretation of section 51(xviii) has the capacity to change over time, to incorporate developments that may have not been conceivable 100 years ago. Such an argument suggests that, unless section 51(xviii) is amended to refer to the ‘limited times’ aspect of copyright or another mechanism is used to positively incorporate this doctrine, then in 100 years time Australia’s public domain (in this limited sense) may become obsolete. Indeed, in spite of the foregoing analysis, lacking any positive constitutional recognition of the public domain or term limitations under section
148 See, eg, Kirby J in Grain Pool, where it is stated that ‘[s]ome of the doctrine in the United States courts has been influenced by First Amendment jurisprudence which may occasionally be antithetical to the suggested removal of existing knowledge from the public domain’: Grain Pool (2000) 202 CLR 479, 532. The case in point was Graham v John Deere Co (1966) 383 US 1. 149 See IceTv [2009] HCA 14, [31], [71], [163]. 150 IceTv [2009] HCA 14, [71] (citation omitted). 56 51(xviii) it is quite difficult to predict with any certainty what the High Court may decide to do.151
C. CONCLUSION
The preceding analysis illustrates four points regarding Australia’s public domain under modern interpretations of section 51(xviii).
First, changes in the interpretation of the powers contained in section 51(xviii) have had an impact on the public domain. On the basis of this modern interpretation of section 51(xviii) Federal Parliament can today undertake certain actions that, even as recently as 40 years ago, it did not believe it could undertake constitutionally. Such amendments have had and have the potential to impact on Australia’s public domain.
Second, changes to the concept of copyright law have had an impact on Australia’s public domain. At Federation, copyright legislation in Australia was fairly limited in its application and, as such, there is evidence to suggest that there was substantial scope for the concept of the public domain within this law. Modern ideas of copyright law have changed this dichotomy – copyright legislation now encompassed broader ideas of technological protection measures and moral rights, for example - with the public domain now one in a list of many copyright law doctrines.
Third, however, the concept of the public domain (at least in one sense) appears to remain in these constitutional discussions because all statutory forms of intellectual property, all of which are established by the powers granted to the Federal Parliament pursuant to section 51(xviii), remain limited in time. This suggests that, by implication, the public domain could be invoked in constitutional litigation seeking to extend the length of protection for copyright-protected works and other subject matter. The existence of Australia’s public domain could, one day, be invoked to negate any perpetual extension of the term of copyright.
151 Given this finding I consider constitutional amendments to section 51(xviii) in Appendix A. 57 IV. CONSTITUTIONAL FOUNDATIONS: THE COPYRIGHTS POWER AND THE PUBLIC DOMAIN
At the beginning of this Chapter I discussed United States academic literature focusing on the relationship between the US constitutional copyright clause and the public domain. Such literature revealed a positive, significant relationship between these two doctrines. The purpose of this Chapter was to undertake the same type of analysis in an Australian context: the relationship between section 51(xviii) of the Australian Constitution, copyright and the public domain. The recurring theme that has emerged is the limits of section 51(xviii), broadly in relation to intellectual property but, more specifically, with regard to copyright law. Changes to the preferred methods of constitutional interpretation and the role of the law prior to ‘1900’ have coloured a large part of this discussion.
This Chapter has presented evidence that suggests that, as in the United States, there is similar capacity to entertain public domain arguments with a constitutional dimension in Australia. Of course, as the constitutional case law and analysis undertaken in this Chapter suggests, there are practical differences, not least the differences in terminology. Yet the fact that such arguments can be raised at least suggests that an Eldred-style constitutional challenge may, in the future, be undertaken in the High Court of Australia. However, to ground that possibility Australian scholars and commentators need to more fully appreciate our particular constitutional heritage, albeit accompanied by considerable difficulties and complexities.
The following Chapter therefore addresses the second area of challenge in the Eldred litigation: constitutional freedom of speech and its relationship with copyright’s public domain.
58 CHAPTER THREE
CONSTITUTIONAL FOUNDATIONS PART TWO: THE AUSTRALIAN CONSTITUTIONAL IMPLIED GUARANTEE OF FREEDOM OF POLITICAL COMMUNICATION AND THE PUBLIC DOMAIN
I. INTRODUCTION: COPYRIGHT, FREEDOM OF EXPRESSION, AND PUBLIC DOMAIN CONSIDERATIONS
Copyright has always conflicted with freedom of expression to varying degrees, though the recent rise in digital technologies has brought this issue to the foreground.1 Information can now be rapidly and easily copied and distributed, which is beneficial for freedom of expression, but copyright owners may not be impressed with the uses to which their works are now being put in the name of ‘expressive freedom’.2 However, given that copyright owners are granted a number of exclusive rights, including in an Australian context rights of reproduction and adaptation and the right to communicate the work to the public,3 a copyright owner is significantly ‘empowered’ with respect to what can and cannot be done with their particular work.4
A copyright owner can give permission for a work to be used or choose to ignore an infringement if he or she agrees with the use to which the work will be or has been put. Yet if the copyright owner disagrees with such use, the owner has the power to refuse permission or sue for infringement. Both government and private copyright owners can, and in some instances do, use their exclusive copyrights to stifle freedom of expression.5 As a result, much has been written in both legal scholarship and case law
1 For a discussion of this in a non-copyright context see Jack M Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’ (2004) 79 New York University Law Review 1; see also Niva Elkin Koren, ‘Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace’ (1996) 14 Cardozo Arts & Entertainment Law Journal 215. In this Chapter I use the terms ‘freedom of expression’ and ‘freedom of communication’, rather than ‘free speech’, as the former phrases lend themselves to a broader variety of conduct than ‘speech’. 2 Jack M Balkin, ‘How Rights Change: Freedom of Speech in the Digital Era’ (2004) 26 Sydney Law Review 5, 7. 3 Copyright Act 1968 (Cth) s 31. 4 Thomas Dreier, ‘Contracting Out of Copyright in the Information Society: The Impact on Freedom of Expression’ in Jonathan Griffiths and Uma Suthersanen (eds) Copyright and Free Speech: Comparative and International Analyses (2005) 385, 392. 5 Neil Weinstock Netanel, Copyright’s Paradox (2008) 111. For an example of the government aspects see Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 (discussed in greater detail below). There are a number of examples of private copyright owners stifling freedom of expression. Most recently, Stephen Joyce, grandson of James Joyce, sought to rely on copyright law to restrict the use of a number of unpublished works, including letters, written by James Joyce. However, in 2006, 59 on the often conflicting relationship between copyright law and freedom of expression, with discussions on this issue originating in the United States6 and spreading to other jurisdictions, including Australia.7
Many scholars subsequently consider the public domain as significant for free speech although, not surprisingly, this discussion has occurred mostly in relation to the First Amendment of the US Bill of Rights. That provision provides in part that ‘Congress shall make no law…abridging the freedom of speech, or of the press.’ In literature on
author Carol Shloss sued the Estate of James Joyce for copyright misuse and, with the aid of the Stanford Fair Use Project, was able to negotiate an agreement to use portions of these unpublished works. See ‘Shloss v. Estate of Joyce’
In turn, many consider the First Amendment to be a potential source of protection for the public domain. In an article penned prior to the Eldred v Ashcroft10 (‘Eldred’) decision, Benkler identifies the First Amendment as being intrinsic in the protection of the public domain against enclosure, noting that:
The position that information released into the body of human knowledge is “free as the air to common use” is not an empty aphorism or a transient policy reference. It is a commitment expressed in the First Amendment speech and press clauses. Its institutional implementation is the public domain.11
Zimmerman also notes the significance of the public domain and the First Amendment. She argues that such a relationship is not simply based on theoretical considerations, but is also evidenced in relevant ‘copyright case law that suggests a protected commons does exist, and that it is rooted heavily, although not necessarily exclusively, in the First Amendment.’12 Therefore, when viewed in this light, the public domain becomes less of a ‘graveyard’ for works, ‘but a playground for speech-experiments.’13 However, as I
8 International New Service v Associated Press 248 US 215 (1918) 250. 9 See Netanel (1996), above n 6, 369-371; Yochai Benkler, ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain’ (1999) 74 New York University Law Review; Lawrence Lessig, ‘Copyright’s First Amendment’ (2001) 48 UCLA Law Review 1057; Yochai Benkler, ‘Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain’ (2003) 66 Law and Contemporary Problems 173; Lawrence Lessig, Free Culture (2004); Diane Leenheer Zimmerman, ‘Is There A Right to Have Something to Say? One View of the Public Domain’ (2004) 73 Fordham Law Review 297, 323-375; Malla Pollack, ‘The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (A.K.A Copyright and Patent Clause)’ (2004/2005) 45 Jurimetrics 23; Michael D Birnhack, ‘More or Better? Shaping the Public Domain’ in P Bernt Hugenholtz and Lucie Guibault (eds), The Future of the Public Domain: Identifying the Commons in Information Law (2006) 59; Rebecca Tushnet, ‘Domain and Forum: Public Space, Public Freedom’ (2007) 30 Columbia Journal of Law & the Arts 597; see also Kathy Bowrey, ‘Can A Public-Minded Copyright Deliver A More Democratic Internet?’ (2007) 56 University of New Brunswick Law Journal 26. 10 537 US 186 (2003). 11 Benkler (1999), above n 9, 445. 12 Zimmerman, above n 9, 329. 13 Birnhack (2006), above n 9, 60. 61 noted in Chapter Two, the plaintiff in Eldred also sought to rely on a First Amendment, copyright and public domain argument, and subsequently failed.14
Yet such public domain arguments also rely on a concept of freedom of expression where individuals have the constitutional or other legislatively based right to enter to the ‘playground’ and engage in such ‘speech-experiments’. Such a right does not exist in Australia: the Constitution contains no provision expressly guaranteeing freedom of expression.15 This is in direct contrast to the US, the European Union (including the United Kingdom),16 New Zealand17 and Canada18 (among others), where freedom of expression is either constitutionally enshrined or permitted through another document ensuring particular human rights. In the last decade of the 20th century, however, the High Court of Australia did find that there is an implied guarantee of freedom of expression in the Australian Constitution, although there are stringent limitations on how far this freedom extends. Case law has also treated the doctrine inconsistently.19
On this basis, given the limitations of this public domain literature, what is not clear is the relationship between freedom of expression, copyright, and the public domain in Australia. In order to evaluate any potential relationship, this Chapter considers the Australian implied guarantee of freedom of political communication and whether the same significance can be established for the public domain under Australian constitutional law as in other jurisdictions. It will begin by discussing the development of Australia’s constitutional freedom of expression.20 As will soon become apparent,
14 The majority opinion in Eldred in fact found the opposite, stating that ‘[t]he CTEA itself supplements these traditional First Amendment safeguards’: see Eldred 537 US 186 (2003) 220. 15 Given the aims of this Chapter I will not undertake any significant analysis of the justifications either for or against freedom of expression. Many benefits emerge from communication that is ‘free’ and any such benefits will not be challenged in this Thesis. 16 Charter of Fundamental Rights of the European Union [2000] OJ C 364/3 art 11. 17 New Zealand Bill of Rights Act 1990 (NZ) s 14. 18 Canadian Charter of Rights and Freedoms (1982) art 2(b). 19 See, eg, Elisa Arcioni, ‘Developments in Free Speech Law in Australia: Coleman and Mulholland’ (2005) 33 Federal Law Review 333; Adrienne Stone, ‘Rights, Personal Rights and Fundamental Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374, 379-380. 20 It is important to note that I am solely concerned with any constitutional relationship existing between freedom of expression and the public domain in Australia, rather than any other guarantees or broader notions of freedom of expression. For example, there is a growing trend in Australia towards the introduction of state and territory statutes that guarantee a number of fundamental human rights. At the time of writing, two of these Acts had been introduced: the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Both Acts include provisions that protect freedom of communication: Human Rights Act 2004 (ACT) s 16 and Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15. It is arguable that the public domain gains significance under 62 the jurisprudence on the implied freedom is large and complex, but a full analysis is required in order to apply this doctrine to the current circumstances. This Chapter will then consider the relationship between the implied freedom and the public domain, focusing on three distinct courses of analysis:
A. Whether, under the implied freedom, the individual gains any freedoms or benefits from the public domain; B. The relationship between the implied freedom and the current Copyright Act 1968 (Cth), and whether the public domain plays any role or has any role to play within this relationship; C. Future amendments to Australian copyright law and the implied freedom as a possible ‘protector’ of Australia’s public domain.
II. THE IMPLIED GUARANTEE OF FREEDOM OF POLITICAL COMMUNICATION
Scholars familiar with United States celebrations - and perhaps to a lesser extent, United Kingdom discourse – on the importance of freedom of speech within a liberal democracy may be surprised by the pragmatic approach taken by the High Court of Australia with respect to constitutional freedom of communication within the Commonwealth. Indeed, it is arguable that the black-letter jurisprudence considered in the proceeding section reveals why discussions similar in nature to those in Eldred have not occurred in an Australian context.
The beginnings of the implied freedom can be traced back to two High Court decisions in 1992, Nationwide News Pty Ltd v Wills21 (‘Nationwide News’) and Australian Capital Television Pty Ltd v Commonwealth22 (‘ACTV’). In both cases, although the majority of the Court found that an implied guarantee of freedom of political communication (the ‘implied freedom’) existed in the Constitution, there was debate as to where this implication was specifically to be found and how to determine its effect.
these express freedoms, where individuals could use public domain materials, including print and artworks, to satisfy this freedom of expression. However, these provisions have not been tested in this context in a court, so their effect is unclear. 21 (1992) 177 CLR 1. 22 (1992) 177 CLR 106. 63 Nationwide News concerned the prosecution of the owner of The Australian newspaper for an article that was alleged to be an attack on members of the Arbitration Commission. Prosecution was launched under section 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) that permitted the granting of a fine and/or imprisonment for the use of words ‘calculated to bring…into disrepute’ either the Commission or its members.23 The defendant publisher challenged the validity of this provision on the basis it was unconstitutional. The High Court unanimously held section 299(1)(d)(ii) invalid, with Deane and Toohey (in a joint judgment), Brennan and Gaudron JJ all finding that the provision infringed an implied constitutional freedom of communication relating to government matters. Gaudron J summarised the main aspects of the implied freedom well:
the powers conferred by s. 51 of the Constitution, because they are conferred “subject to [the] Constitution”, do not authorize laws which are inconsistent with a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy and, thus, do not authorize laws which impair or curtail freedom of political discourse, albeit that that freedom is not absolute.24
Although Brennan, Deane and Toohey JJ differed in their construction of the implied freedom and the basis for its recognition,25 this summary by Justice Gaudron captures the major points of the implied freedom under Nationwide News. First, the communication must concern political issues. Second, the powers of the Parliament, specifically under section 51, were subject to its operation.26 Third, the freedom was not absolute: although laws that came into conflict with the implied freedom would have to be evaluated to determine whether the burden was permissible, a law that impinged upon the freedom could still be valid.27
The tests to be applied to determine the invalidity of the law in question also differed. Brennan J argued that no law could restrict this freedom unless it fulfilled a legitimate
23 Nationwide News (1992) 177 CLR 1, 35-36. 24 Nationwide News (1992) 177 CLR 1, 94. 25 Brennan J, for example, argues that the ‘freedom of the Australian people to discuss governments and political matters’ is a consequence of the system of ‘representative democracy’ created by the Australian Constitution: Nationwide News (1992) 177 CLR 1, 50. Deane and Toohey JJ believe that the implied ‘freedom of communication of information and opinions about matters relating to the government’ is to be discerned in the doctrine of ‘representative government’: Nationwide News (1992) 177 CLR 1, 73 (Nationwide News). See also Nicholas Aroney, ‘A Seductive Plausibility: Freedom of Speech in the Constitution’ (1994/1995) 18 University of Queensland Law Journal 249. 26 Nationwide News (1992) 177 CLR 1, 76. 27 Ibid. 64 purpose and the restriction was ‘appropriate and adapted to the fulfilment of that purpose.’28 In a similar vein, Gaudron J stated that legislation imposing a restriction on political communication should be ‘reasonably and appropriately adapted’,29 reiterating the statement of the High Court in an earlier decision considering freedom of expression, Davis v Commonwealth.30 Deane and Toohey JJ employed a test that first considers the character of the law,31 an approach that has subsequently been dubbed the ‘two-tiered’ approach.32
In the next decision, ACTV (heard at the same time as Nationwide News), the implied freedom was considered in the context of Part IIID of the Broadcasting Act 1942 (Cth). This Part had recently been introduced pursuant to the Political Broadcasts and Political Disclosures Act 1991 (Cth) and its provisions placed new limitations on political advertising through radio and television media during election periods. The majority, with Dawson J in dissent, found that a guarantee of freedom of political communication should be implied into the Australian Constitution and, consequently, Part IIID was in breach of that freedom. Again, the origins of this doctrine varied according to the individual judgment.
Although he did not recognise the implied freedom in Nationwide News, Mason CJ argued in ACTV that Part IIID contravened ‘an implied guarantee of freedom of political communication’ that was inherent in the Australian constitutional system of representative and responsible government.33 Gaudron J stated that a representative parliamentary democracy as prescribed in the Constitution ‘necessarily entails, at the very least, freedom of political discourse.’34 Further, McHugh J commented that an implied freedom was grounded in the provisions of the Constitution dealing with elections, namely, sections 7 and 24.35
28 Nationwide News (1992) 177 CLR 1, 50. 29 Nationwide News (1992) 177 CLR 1, 95. 30 (1988) 166 CLR 79. 31 Nationwide News (1992) 177 CLR 1, 76-77. 32 See, eg, Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 678-679. 33 ACTV (1992) 177 CLR 106, 135-136, 140. 34 ACTV (1992) 177 CLR 106, 212. 35 ACTV (1992) 177 CLR 106, 227. 65 In terms of the test for determining validity, Brennan J adopted a test of proportionality, finding that the law in question did not satisfy this test.36 Gaudron J again noted that, given the powers conferred on the Parliament under section 51 were subject to the Constitution and therefore the implied freedom, this power could ‘only be used to regulate political discourse to the extent that that regulation is…“reasonably and appropriately adapted” to achieve some end within the limits of that power.’37 Finally, Mason CJ, Deane and Toohey and McHugh JJ all adopted a ‘two-tiered’ approach to determining the validity of the law, with consideration first turning upon the character of the law and what it sought to regulate.38
In Theophanous v Herald & Weekly Times (‘Theophanous’)39, however, the next High Court decision to consider the implied freedom, the majority of the Court extended the implied freedom, with the effect that not only was it a freedom from specific legislative restriction, but in some cases it could operate as a defence to a common law action. Theophanous concerned defamation proceedings actioned by Andrew Theophanous, a member of the House of Representatives, against the Herald & Weekly Times and Bruce Ruxton for an allegedly defamatory letter penned by Ruxton.40 The Herald & Weekly Times argued that, on the basis of Nationwide News and ACTV, the law of defamation should be modified to include a ‘public figure defence’ similar to the defence existing in the United States following New York Times Co v Sullivan.41
The Court split 4:3. In the majority joint judgment, Mason CJ, Toohey and Gaudron JJ gave arguably the widest interpretation of what constitutes ‘political communication’ to date, including discussion of government, political parties, public bodies and public officers, in addition to discussion concerning ‘trade union leaders, Aboriginal political leaders, political and economic commentators.’42 The joint judgment subsequently formulated a three-pronged defence based on the implied freedom that could be invoked
36 ACTV (1992) 177 CLR 106, 157. 37 ACTV (1992) 177 CLR 106, 217-218. 38 Per Mason CJ at (1992) 177 CLR 106, 143; Deane and Toohey JJ at 169; McHugh J at 234-235. 39 (1994) 182 CLR 104; see also Stephens v Western Australia (1994) 182 CLR 211; Cunliffe v Commonwealth (1994) 182 CLR 272. 40 Theophanous (1994) 182 CLR 104, 117-118. 41 376 US 253 (1964); George Williams, Human Rights Under the Constitution (2nd ed, 2002) 173. 42 Theophanous (1994) 182 CLR 104, 124. 66 in defamation actions concerning communications about political matters.43 Given this application, the implied freedom operated to limit state laws.
Thus, four questions emanate from these early decisions: what democratic aspects of the Constitution laid the foundations for the implied freedom; what constituted communication on government or political matters; what impact the implied freedom had on both statutory and common law; and what test should be used to determine whether a law, or individual provisions of a law, impermissibly burdens privileged communications.44 The High Court sought to settle these questions in Lange v Australian Broadcasting Corporation45 (‘Lange’), a defamation action commenced by David Lange, a former Prime Minister of New Zealand. The ABC sought to rely on the defence developed in Theophanous. In turn, Lange argued that the findings in these decisions were not applicable to discussion of New Zealand political issues.46
The joint judgment of the Full Bench examines the implied freedom and clarified its nature and scope. The Court states that sections 7 and 24 of the Constitution ‘protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.’47 These sections provide for the election of members ‘directly chosen by the people’ for the Senate and House of Representatives respectively.48 On this basis, privileged communications are those
with respect to matters that could affect [the people’s] choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government[.]49
43 Given that the specifics of this defence are not relevant to the issues under consideration here it will not be extracted. See Theophanous (1994) 182 CLR 104, 140-1. However, in a 1995 essay Bannister questions whether the implied freedom might operate as a defence to copyright infringement. This argument pre-dated the finding of the High Court in Lange and today it is arguably settled that it could not be invoked. See Bannister, above n 7. 44 Michael Chesterman, Freedom of Speech in Australian Law: A delicate plant (2000) 27. It is important to note that the case law establishes that where only a provision was found to be invalid under the implied freedom, the individual provision can be severed from the statute, rather than invalidate the whole statute: see, eg, Coleman v Power (2004) 220 CLR 1, 54-56. 45 Lange (1997) 189 CLR 520. 46 Lange (1997) 189 CLR 520, 551. 47 Lange (1997) 189 CLR 520, 560. Indeed, the Court went so far as to state the implied guarantee is a ‘requirement and not a right of communication’: (1997) 189 CLR 520, 567. 48 Australian Constitution ss 7 and 24; Lange (1997) 189 CLR 520, 559. 49 Lange (1997) 189 CLR 520, 571. 67 Thus, as Chesterman notes, there must be ‘some nexus…between any communication allegedly protected by the implied freedom and the making of “free and informed” choices by voters in the exercise of their voting rights’.50 However, although the implied freedom is grounded in the electoral provisions of the Constitution, the operation of the implied freedom is not limited to election periods.51 Therefore, there is no temporal limit on the communication in question.52
The joint judgment was also adamant that the implied freedom must not be construed as a ‘personal right’ granted to individuals.53 Its effect must therefore be distinguished from the application of the United States First Amendment.54 As Stone notes, the implied freedom ‘provides freedom from interference, rather than [grants] the right to engage in certain activities or to be provided with certain benefits.’55 Further, the Court also reconfirmed in Lange that the implied freedom is ‘not absolute’.56
In order to determine whether a law infringed the freedom, the Court in Lange laid down a two-stage test:
When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government…If the first question is answered “yes”, and the second is answered “no”, the law is invalid.57
When applied to the law under consideration in Lange – the Defamation Act 1974 (NSW) – the Court found that while the first prong was satisfied, defamation law is in fact ‘reasonably appropriate and adapted’ to serve a legitimate end that is reconcilable
50 Chesterman, above n 44, 50-51. 51 Lange (1997) 189 CLR 520, 561. 52 Whether there is any ‘geographical’ limitation on the communication in question arguably depends on the High Court’s current construction of the term ‘political communication’. As discussed in greater detail in note 58 below, there is still debate as to the definition of this term. 53 Lange (1997) 189 CLR 520, 560. 54 Lange (1997) 189 CLR 520, 567. 55 Stone (2001), above n 19, 376 (emphasis in original). 56 Lange (1997) 189 CLR 520, 561. 57 Lange (1997) 189 CLR 520, 567-568 (citations omitted). For criticism of the ‘reasonably appropriate and adapted’ test, see Kirby J in Levy v Victoria (1997) 189 CLR 579, 646-647; Mulholland (2004) 220 CLR 181, 251-252. 68 with the system of government prescribed by the Constitution. Nevertheless, despite the unanimous decision in Lange, post-Lange case law has unfortunately only created further questions about what constitutes ‘political communication’58 and the applicable test for determining the invalidity of legislation.59
In addition to these considerations, the Lange test was also slightly modified in Coleman v Power60 (‘Coleman’). In that case, the appellant, Patrick Coleman, had been distributing pamphlets in a Townsville mall alleging the corruption of several police officers. Coleman was arrested pursuant to two provisions of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The issue under consideration by the High Court was the validity of section 7(1)(d) of this Act, which provided that any person who, in a public place used any threatening, abusive or insulting words to any person was liable for a fine or imprisonment.61
Coleman argued that the provision was unconstitutional on the basis of the implied freedom. In a narrow 4:3 split in favour of Coleman,62 McHugh J was the only member of the Bench to find that section 7(1)(d) was invalid under the implied freedom.63 In the course of his analysis, McHugh J proposed a modification to the Lange test, which
58 Despite the statement of the Court in Lange there has been debate as to what communications will constitute ‘political communication’ for the purposes of the implied freedom. However, given the fact that what constitutes a ‘political communication’ does not bear directly on the issues of the relationship between the implied freedom, copyright law and the public domain, this issue will not be considered in any significant detail. 59 Concurrent to the development of the Lange test, members of the Court have also adopted another approach to determining the validity of impugned legislation - the ‘two-tiered’ approach. This approach requires a determination of the character of the law, with a lesser standard applied where the law does not target political communication per se. See, eg, Nationwide News (1992) 177 CLR 1, 76- 77 per Deane and Toohey JJ (differentiating between laws concerning ‘prohibition or control of some or all communications relating to government’ and those ‘with respect to some other subject and whose effect on such communications is unrelated to their nature as communications of the relevant kind’); ACTV (1992) 177 CLR 106, 143 (per Mason CJ); 234- 235 (per McHugh J: ‘freedom of electoral communications by prohibiting or regulating their contents and laws which incidentally limit that freedom by regulating the time, place or manner of communication.’). Despite the adoption of the single Lange test, the ‘two-tiered’ approach remains in vogue with members of the Court: see Levy v Victoria (1997) 189 CLR 579, 614 (per Toohey and Gummow JJ); 647 (per Kirby J); Coleman v Power (2004) 220 CLR 1, 123 (per Heydon J); Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 200. 60 (2004) 220 CLR 1. 61 Coleman (2004) 220 CLR 1, 21. 62 McHugh J, Gummow and Hayne JJ (in a joint judgment) and Kirby J constituted the majority; Gleeson CJ, Callinan and Heydon JJ dissented. 63 Coleman (2004) CLR 220 1, 53-54. 69 Kirby, Gummow and Hayne JJ all subsequently affirm.64 His Honour first found that, while it is not expressly stated in the Lange test, it is
clear that the Court did intend the second limb to be read in a way that requires that both the end [of the law in question] and the manner of its achievement be compatible with the system of representative and responsible government.65
In the opinion of McHugh J, Kirby J correctly articulated the Lange test when, in the subsequent decision Levy v Victoria66 (‘Levy’), he incorporated consideration of the ‘manner’ of the law.67 To take account of this issue, McHugh J proposed that the words ‘in the manner’ should be substituted in place of the phrase ‘the fulfilment of’ in the second limb of the Lange test. Therefore, taking account of this modification, the Lange test must be applied as follows:
First, the law must be evaluated to determine whether it effectively burdens ‘freedom of communication about government or political matters either in its terms, operation or effect.’
Second, if that question is answered ‘yes’, then the law must be further examined to determine whether it is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.68 If this question is answered ‘no’, the law is invalid.
This is the test that must be applied when determining whether, for example, the Copyright Act 1968 is valid under the implied freedom. This will be discussed in greater detail in Part III below.
There is, however, an important qualification to the application of the implied freedom that must be noted. In Mulholland v Australian Electoral Commission69 (‘Mulholland’), a majority of the Court found that the plaintiff, John Mulholland, failed on the first limb of the Lange test because he did not have any pre-existing right to communication that
64 Gummow and Hayne JJ at (2004) 220 CLR 1, 78; Kirby J at (2004) 220 CLR 1, 82. 65 Coleman (2004) 220 CLR 1, 50. 66 (1997) 189 CLR 579. 67 Coleman (2004) 220 CLR 1, 51. 68 Coleman (2004) 220 CLR 1, 89-90; see also Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary & Materials (4th ed, 2006) 1372. 69 (2004) 220 CLR 181. 70 was burdened by the legislation in question, Part IX of the Commonwealth Electoral Act 1918 (Cth). The only ‘right’ to communicate through the medium in question, the use of ballot-papers, was dictated by the provisions of that Act.70
As McHugh J further noted, the plaintiff in Levy had failed in part on the Lange test for similar reasons. In Levy, the plaintiff, Laurence Levy, challenged the validity of the Wildlife (Game)(Hunting Season) Regulations 1994 (Vic), which limited entry to certain hunting areas on the first weekend of the duck hunting season.71 Levy argued that the regulations restricted his ability to draw public attention to duck hunting and debate and criticise Victorian Government policies about the practice.72 Subsequently, according to Levy, the regulations were invalid pursuant to the implied freedom. Yet in Mulholland McHugh J argued it was actually due to the fact that protesters had no ‘pre- existing right’ to enter the hunting area in question that denied the plaintiff success under the implied freedom. The implied freedom does not create such rights and without the common law or statute granting such a right to enter the hunting area, ‘it was the lack of that right, and not the Regulations, that destroyed their opportunity to make their political protest.’73 The situation in Levy and Mulholland differed from ACTV, where the plaintiff did have a pre-existing statutory right, granted under the Broadcasting Act 1942 (Cth), to ‘transmit broadcasting and television programs, including programs on political and government matters.’74 The provisions in question in ACTV, contained in the Political Broadcasts and Political Discourses Act, ‘operated to burden long-existing rights that existed independently of that Act.’75
Kirby J criticised this argument in Mulholland, stating that ‘[t]his approach, pushed to extremes, could effectively neuter the implied freedom of communication.’76 However, McHugh J’s approach and the concurring opinions in Mulholland confirm the statement
70 Mulholland (2004) 220 CLR 181, 223. 71 Levy (1997) 189 CLR 579, 591-592. 72 Levy (1997) 189 CLR 579, 605. 73 Mulholland (2004) 220 CLR 181, 224, citing Levy (1997) 189 CLR 579, 625-626. Gummow and Hayne JJ also cited this extract with approval in their joint judgment in Mulholland: see (2004) 220 CLR 181, 246. 74 Mulholland (2004) 220 CLR 181, 224. 75 Mulholland (2004) 220 CLR 181, 225. 76 Mulholland (2004) 220 CLR 181, 276. 71 in Lange that the implied freedom does not confer personal rights on individuals.77 Thus, in conclusion, there is a limit to what an individual living in Australia today gains from the existence of the implied freedom: the effect of the implied freedom being a freedom from laws, rather than a freedom to communicate. This will be particularly important in the discussion in the next part regarding the individual, the public domain, and the implied freedom.
More positively, however, it is also important to note that the implied freedom applies to both verbal and non-verbal communication. As McHugh J noted in Levy, ‘[f]or the purpose of the Constitution, freedom of communication is not limited to verbal utterances. Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions.’78 Scholars agree that this is the appropriate scope of the implied freedom.79 Therefore laws that deal with these types of non-verbal communication can be held invalid under the implied freedom.
In light of these issues, it appears that there are only two statements that can be made with any certainty when applying the implied freedom to a new situation. First, what constitutes communication about government and political matters and the application of the Lange test must be determined on a case-by-case basis.80 Second, any application of the implied freedom also hinges on the composition of the sitting High Court, while still in its formative stages.
Therefore, as noted above, Australian constitutional discourse has had to grapple with the foundations and construction of an implied doctrine, rather than simply incorporate a positive right incorporated into a constitution, bill of rights or similar document. On that basis there have been fewer opportunities to evaluate the application of that doctrine, beyond the case law focussing upon that freedom within a broader legal sphere – for example, to a copyright context. With these issues in mind, I will now turn to the relationship between the implied freedom, copyright and the public domain in Australia.
77 For a greater discussion of the ‘rights’ issue, see Arcioni, above n 19, 352-354 and HP Lee, ‘The “Reasonably Appropriate and Adapted” Test and the Implied Freedom of Political Communication’ in Matthew Groves (ed) Law and Government in Australia (2005) 59, 78-80. 78 Levy (1997) 189 CLR 579, 622-623; Gleeson CJ, Toohey and Gummow JJ and Kirby J also made statements to similar effect. See also See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 279-283. 79 Williams (2002), above n 41, 193; Burrell and Stellios (2005), above n 7, 265. 72
III. THE RELATIONSHIP BETWEEN THE IMPLIED FREEDOM AND THE PUBLIC DOMAIN
In evaluating the constitutional relationship between the implied freedom, Australian copyright law and the public domain, three questions arise.
In this section, I will first consider whether the individual benefits from the implied freedom and the public domain and thus whether the public domain gains any significance in that respect. I use the term ‘individual’ here to mean Australian citizens, for two reasons. First, in Chapter One, I noted that collectively Australian citizens constitute the ‘public’ in Australia’s public domain.81 Second, Australian citizenship, and the ability to vote in Federal elections pursuant to sections 7 and 24 of the Australian Constitution, is particularly important here, as the implied freedom is the requirement of these provisions.82
Second, I will then evaluate the impact of the Lange test on existing Australian copyright law and consider whether the public domain has any significance in such a discussion.
Third, I will explore the possibility of use of the implied freedom as protection for the public domain against future legislative changes to Australian copyright law.
A. THE INDIVIDUAL, THE IMPLIED FREEDOM, AND THE PUBLIC DOMAIN
The first question is whether the same constitutional significance can be ascribed to the public domain in Australia as it has been given in US discussions. As I noted earlier, scholars argue that the First Amendment freedom of speech guarantee encompasses a type of ‘mandatory public domain.’83 According to this literature, the public domain warrants greater protection on this basis, given that, in order for expression to be ‘free’, there must be a public domain from which individuals can draw content that will foster freedom of expression on a variety of topics.
80 See Blackshield and Williams, above n 68, 1372. 81 See Chapter One Part III Section A. 82 See discussion in Part II above, particularly in relation to Lange. 83 Zimmerman, above n 9, 374. 73
In Australia, however, it appears that the public domain does not gain this constitutional significance because the implied freedom does not confer rights on individuals.84 The operation of the implied freedom only ensures that Australian citizens are protected from the operation of laws that may prohibit or impinge upon communication concerning government and political matters. It does not confer upon Australians any right to speak. Therefore, the existence of the public domain, despite the fact that its content is free of copyright and can be used and reused by all, does not appear to gain any constitutional significance under the implied guarantee of the freedom of political communication. The Australian public does not gain any individual benefit from the existence of the public domain, nor does the public domain gain any significance, in this particular context.
B. THE IMPLIED FREEDOM, THE CURRENT COPYRIGHT ACT, AND THE PUBLIC DOMAIN
It is clear from the Introduction to this Chapter that there is a general ‘collision’ between freedom of expression and copyright law.85 In Australia, given that the Copyright Act limits the way that certain works can be used and therefore how political communication can occur, copyright law conflicts with the operation of the implied freedom.86 This is further evidenced by the fact that copyright law protects both works produced by government pursuant to the Crown copyright provisions contained in Part VII of the Copyright Act and broader works concerning government and political matters, for example, newspapers and news broadcasts.
Crown copyright raises a number of questions about the government as author: this concept goes against one of the fundamental aspects of copyright law, namely that a work must originate with a (usually human) author. Yet pursuant to the Crown copyright provisions of the Copyright Act 1968, discussed in greater detail below, copyright subsists in works ‘made by, or under the direction or control’ of the Crown, as
84 Lange (1997) 189 CLR 520, 567; see discussion above. Further, as Chesterman notes, the High Court has repeatedly ‘stressed…that the implied freedom and the First Amendment are in no way to be equated with each other.’ See Chesterman, above n 44, 19-20 (citation omitted). 85 See also Burrell and Stellios (2005), above n 7, 276. 86 Ibid 271. 74 opposed to the subsistence of copyright in a work created by an individual author.87 There is also the growing issue of works produced under government funding (particularly in the higher education research sector), the need for openness with respect to such research findings and the relationship with copyright.88 Freedom of expression also has a role to play in such situations.
Some scholars argue that the implied freedom may be the only constitutional limitation on Australian copyright law,89 although other commentators suggest that the High Court may find copyright should not be subject to this doctrine.90 However, given that the High Court has often stated that the legislative powers of the Commonwealth under section 51 are subject to the implied freedom, and the power of the Parliament to legislate with respect to copyright is found in section 51(xviii), this is unlikely to occur.91 Therefore, on the basis of this broader limiting effect, this section considers whether the Australian Copyright Act is reconcilable with the modified Lange test and whether the public domain plays a role in this evaluation and as a result, gains any significance here.
As discussed above, there are two steps to this test. The first question is whether the law ‘effectively burdens’ freedom of communication regarding government or political matters in its ‘terms, operation or effect’.92 McHugh J noted in Coleman that a law will
87 Compare section 32(1) (‘copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author: (a) was a qualified person at the time when the work was made; or (b) if the making of the work extended over a period--was a qualified person for a substantial part of that period’) with, eg, section 176 (‘Where, apart from this section, copyright would not subsist in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Commonwealth or a State, copyright subsists in the work by virtue of this subsection.’ (emphasis added)) 88 See Samuel E Trosow, ‘Copyright Protection for Federally-Funded Research: Necessary Incentive or Double Subsidy?’ (2004) 22 Cardozo Arts and Entertainment Law Journal 613 (discussing the 2003 US Public Access to Science Act and arguing that research created through government funding should enter the public domain, free from copyright restrictions.) 89 Brian Fitzgerald et al, Internet and E-Commerce Law: Technology, Law and Policy (2007) 282. 90 Burrell and Stellios (2005), above n 7, 286. 91 For example in Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 Kirby J recognises the ‘existence of competing constitutional objectives, express and implied’ that would operate on section 51(xviii): see (2000) 202 CLR 479, 531, footnote 266. I discussed such possible limitations in Chapter Two, above. 92 Of course, this raises interesting questions if the Court adopted a ‘two-tiered’ method of interpretation. As discussed above, the Court would need to determine which of the two categories the Copyright Act fell into, a law that sought to directly prohibit or regulate the contents of a communication, or a law that incidentally limited the nature of the communication. It is arguable that the Copyright Act would fall into the latter category, given that the primary aim of the law is the protection of intangible property. 75 not fall foul of this limb unless the legislation ‘by its operation or practical effect…directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence.’93 When this limb is applied to the Copyright Act, the answer is plainly ‘yes’, in two senses.94 First, the Copyright Act burdens the manner of the communication: the ‘speaker’ cannot use a particular copyright work for the purposes of political communication without permission. Second, it is also arguable that the Copyright Act limits the time of the political communication. If the ‘speaker’ is refused permission, then the ‘speaker’ must wait until that work enters the public domain to use it for the purposes of political communication (subject, of course, to the fair dealing and other statutory exceptions). An oft-cited example of the Copyright Act limiting political communication is Commonwealth v John Fairfax & Sons Ltd95 (‘Fairfax’), where the Federal Government was able to restrict publication of a book concerning its various defence policies between 1968 and 1975 on the basis of copyright infringement of its unpublished works.96 Fairfax was decided over a decade prior to Lange and thus the operation of the implied freedom had not yet been raised before the courts. However, this example illustrates that copyright subsisting in works produced by government departments and public servants burdens political communication.
Therefore, to proceed with the second limb, the law in question will be reconcilable with the implied freedom if it is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. In determining this issue, both the end and the manner used to achieve the end must be considered, as both must be compatible with the Australian system of government.97 If the law in question does not satisfy this limb, then it is invalid.
Prima facie, the Australian Copyright Act does exist to serve a ‘legitimate end’, namely, the protection of the exclusive rights of copyright owners and creators of works. This
93 Coleman (2004) 220 CLR 1, 49. 94 For the purposes of this discussion I am not considering the issue of whether there is a pre-existing right that is burdened, as McHugh J proposes in Coleman. A number of situations can be envisaged where such a right would exist and therefore would be burdened by the existence of copyright, for example, in broadcasting. The rights issue has greater application in Section C below. 95 (1980) 147 CLR 39. 96 Fairfax (1980) 147 CLR 39, 44, 48; see also Burrell and Stellios (2005), above n 7, 277-278. 76 includes protection for both government and private copyright owners. Further, works concerning government or political matters (for example, in a newspaper or periodical) are arguably more likely to be created because of the ‘copyright incentive’ and therefore add to discussion concerning the Australian system of representative and responsible government. However, the Copyright Act, and indeed copyright law more broadly, also encompasses a ‘balancing of rights’ between owners and users.98 Indeed, three reasons, with the first two often appearing in copyright and free speech literature, also contribute to such a balance:
A. The proposition that copyright legislation includes a number of freedom of expression safeguards; B. The existence of the idea/expression dichotomy promotes freedom of expression; and C. The limited length of protection also enhances freedom of expression as eventually the whole work will be able for reuse.
Each of these reasons will now be assessed in greater detail.
First, commentators suggest that copyright law already contains a number of inherent safeguards for freedom of expression, through the inclusion of exceptions to infringement, namely ‘public rights’ safeguards. In the US, ‘fair use’ constitutes such a safeguard;99 in Australia, the ‘fair dealing’ exceptions are often considered to protect freedom of expression. In their analysis of the Lange test and copyright, Burrell and Stellios highlight the importance of the fair dealing provisions here, though also argue that a High Court re-examination of the boundaries of these exceptions may also render the Copyright Act more acceptable under Lange.100 Arguably the most important fair dealing exceptions in this context are the exceptions for criticism or review101 and the reporting of news.102 Today the majority of what major news corporations would be
97 Coleman (2004) 220 CLR 1, 50. 98 Sir Anthony Mason, ‘Public-Interest Objectives and the Law of Copyright’ (1998) 9 Journal of Law and Information Science 7; see also Gerald Dworkin, ‘Copyright, The Public Interest and Freedom of Speech: A UK Copyright Lawyer’s Perspective’ in Jonathan Griffiths and Uma Suthersanen (eds) Copyright and Free Speech: Comparative and International Analyses (2005) 154, 154. 99 See Eldred 537 US 186 (2003) 219; de Zwart, above n 7, 107. 100 Burrell and Stellios, above n 7, 281-286. 101 Copyright Act 1968 s 41 and 103A; see also Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459, 466-468. 102 Copyright Act 1968 s 42 and 103B. 77 interested in reporting is covered by these fair dealing provisions.103 Further, as I consider in later Chapters, greater care must be taken when evaluating the relationship between Australian copyright law, the fair dealing provisions, and the public domain.104
Second, commentators also argue that the operation of the idea/expression dichotomy promotes freedom of expression in copyright law, as copyright only protects the expression of ideas and not the ideas themselves.105 Therefore, ideas as a part of the public domain, are free for use and reuse, for the purposes of free expression.106 This argument, however, is open to criticism, particularly in light of the Fairfax decision. As Netanel notes, ‘effective speech sometimes requires the verbatim copying of substantial portions of existing literary expression.’107 There will be occasions when the expression employed, rather than the ideas presented, will be of paramount importance to the communicated message and convincing the audience of the authenticity and completeness of what was said. Nevertheless, under Fairfax this was explicitly denied.108 In a similar vein, the idea/expression dichotomy only applies to literary, dramatic, and musical works, rather than artistic works, sound recordings, or cinematograph films. There will be times when this specific visual material may need to be used.109
Third, the existence of a limited length of copyright protection – and thus the existence of the public domain – is another factor that ensures that the Copyright Act satisfies the Lange test. Eventually copyright will expire and these ‘whole works’ can be used. The existence of the public domain in this respect is part of the broader balancing act that the
103 Kathy Bowrey, ‘Copyright and the Fourth Estate’ (Paper presented at the ‘Media, Communications and Public Speech’ Conference, Centre for Media and Communications Law, University of Melbourne, 19 November 2008). 104 See Chapter Eight Part II Section C below. 105 Nimmer, above n 6, 1192. 106 See, eg, Skybase Nominees v Fortuity Pty Ltd (1996) 36 IPR 529, 531. 107 Netanel (2001), above n 6, 15. 108 In Fairfax Mason J stated that ‘Copyright is infringed by copying or reproducing the document ; it is not infringed by publishing information or ideas contained in the document so long as the publication does not reproduce the form of the literary work’: see (1980) 147 CLR 39, 58. 109 Nimmer uses the example of a photograph of the Vietnamese My Lai massacre as supporting such a proposition and states that, in that instance, ‘[t]he photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode’: Nimmer, above n 6, 1197. Today, a more relevant example may be a photograph of the implosion of the twin towers of the World Trade Centre on September 11 2001, which in the current socio-political climate could arguably be used as an illustration in many examples where freedom of expression could be encouraged. Similar sentiments are echoed by Kirby J in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; see discussion below p 88. 78 Copyright Act undertakes. The fact that copyright-protected creations eventually enter the public domain reinforces this dichotomy and thus the public domain partly ensures that the Copyright Act is ‘reasonably appropriate and adapted’.
There is, however, the issue of unpublished works: as I discussed in Chapter Two, such works will never enter the Australian public domain as copyright continues to subsist where these remain unpublished.110 Given the operation of these provisions, unpublished government documents will never enter the public domain. The Fairfax decision highlights the implications of this issue: Mason J mentioned briefly, in the course of considering the application of the fair dealing provisions, that the government documents in question were unpublished.111 Although he did not specify the sections that conferred copyright protection on the documents, it is likely that the works were protected under either section 33(3) or 180(1)(a) of the Copyright Act. Therefore, the documents in Fairfax would arguably never have entered the public domain. The issue that remains is the impact that these provisions have on the Copyright Act passing the Lange test. On this basis, I will consider the impact of perpetual copyright provisions in greater detail below. However, in this context, it is arguable that given these provisions are limited in effect and only deal with a restricted amount of works, neither section 33(3), 180(1)(a) or the overall Copyright Act would be held invalid on the basis of the implied freedom.
Thus the combination of these aspects of the Copyright Act – some public rights, though the majority being public domain - suggest that this law is reconcilable with the second limb of the Lange test.
C. FUTURE AMENDMENTS AND THE IMPLIED FREEDOM AS THE ‘PROTECTOR’ OF THE PUBLIC DOMAIN
The third issue that arises here is whether the implied freedom could be used to strike down any future legislative changes that impact detrimentally on the public domain should the situation arise, and consequently whether the public domain gains any significance in this respect.
110 See Chapter Two Part III Section B above. 111 Fairfax (1980) 147 CLR 39, 54. 79 Although Bannister states that ‘it would be difficult to argue that all Crown copyright would be invalidated by the implied freedom of political expression’,112 the case may be different if future amendments burden the implied freedom of communication of government and political matters to an impermissible degree.113 Would the public domain play any role in this situation? To determine the answer, I will use a hypothetical test case to evaluate these broader issues.
In Chapter Two I considered whether a grant of perpetual copyright would be constitutionally permissible under section 51(xviii).114 For the remainder of this Chapter I will consider whether the implied freedom could be used to strike down any amending legislation that granted perpetual copyright protection to works where Federal, State, or Territory governments owned copyright. I will assume, for the purposes of this discussion that the government would extend the length of protection under both the general copyright provisions, for example, where copyright is owned under section 35(6),115 and the broader Crown copyright provisions contained in Part VII of the Copyright Act.116
In order for action to be taken against the introduction of perpetual copyright for governments, the plaintiff (or defendant, if being sued for infringement and using this to
112 Bannister, above n 7, 26. 113 The proceeding discussion does not consider the position with respect to legislation, judicial determinations or executive opinions. As it currently stands the existence of the Crown prerogative means that the Commonwealth, States and Territories have exclusive property rights in the legislation created in that jurisdiction, and this is not affected by the Copyright Act 1968: see Copyright Law Review Committee, Crown Copyright (2005) [6.34]-[6.36]; Copyright Act 1968 s 8A(1); Attorney General for New South Wales v Butterworth & Co (Australia) (1938) 38 NSWSR 195; Copyright Act 1968 s 8A(1).The position with respect to copyright in judicial decisions and executive opinions is less clear, although the Copyright Law Review Committee believed that the Crown prerogative extended to judgments; see Copyright Law Review Committee, Crown Copyright (2005) [5.21]- [5.25]. Although there are clear repercussions for democracy flowing from copyright protection for laws and judgments, this discussion focuses on policy and other government documents produced by governments at all levels in a day-to-day context and the impact on the public domain. 114 See Chapter Two Part III Section B. 115 This provision states that employers own the copyright in works produced by employees. Governments therefore also own copyright in employee works under this section: see Copyright Act s 35(6). 116 For the purposes of this discussion, it is sufficient to note that: first, pursuant to section 176(2) of the Copyright Act the Commonwealth or a State owns copyright in a work ‘made by, or under [its] direction or control’. Second, under section 177(2), the Crown owns copyright in any work that it first publishes where that publication is ‘by, or under the direction or control of, the Commonwealth or the State’. Third, section 178 similarly provides for ownership where the material in question is a sound recording or film. Finally, sections 180 and 181 provide that the duration of copyright in Crown works is 50 years from first publication for literary, dramatic and artistic works, photographs, sound 80 attempt to strike down the infringement) would need first to establish that a communication regarding government or political matters had occurred that enjoyed a sufficient nexus to electors making a free and informed choice. As noted earlier, the High Court has not laid down a definitive test for determining a ‘political communication’, although it is likely that this would not be a significant hurdle for a potential plaintiff or defendant. Therefore, the Lange test would be applied.
Turning to the first limb, this requires a determination as to whether the challenged provisions burden the plaintiff’s freedom of communication about government or political matters. It is not difficult to conceive of circumstances where perpetual copyright may burden freedom of political communication: for example, the verbatim reproduction of a published government document that was about to enter the public domain, but will never do so due to the introduction of perpetual copyright. Further, a grant of perpetual copyright also burdens the ‘time, place, manner [and] conditions’ of the communication in question.117 However, a number of arguments are available to rebut such a claim. By introducing an unlimited length of protection, the Federal Parliament would not be extending the existing ‘rights’ of the copyright owner and an individual may still be free to use the ideas contained in the document. This point was noted by both Hill J in Skybase Nominees v Fortuity Pty Ltd118 and Mason J in Fairfax.119
There is one further issue, however, that may legitimately preclude the plaintiff succeeding under the first limb of this test. Earlier in this Chapter, I noted the argument of the majority in Mulholland that in order to invoke the implied freedom, a right or privilege must already be in existence that is burdened by the allegedly infringing legislation.120 McHugh J expressed this argument succinctly in Levy when he found that
recordings and cinematograph films. However, as noted above, if that work remains unpublished, copyright continues to subsist indefinitely. 117 Coleman (2004) 220 CLR 1, 49. 118 (1996) 36 IPR 529. 119 Fairfax (1980) 147 CLR 39, 58. There are, of course, confidential information implications that arise in such situations. In his noted text Chesterman argues that Fairfax implements principles of freedom of speech because Mason J rejected the confidential information claims of the government, believing that ‘information about government matters should be able to be disclosed to the community, in order that government action would be discussed, reviewed and criticised.’ See Chesterman, above n 44, 7- 8. Thus perpetual copyright for government works could be introducing protection where confidential information principles may even be denied. 120 See Part II above. 81 the implied freedom ‘gives immunity from the operation of laws that inhibit a right or privilege to communicate political or government matters…[but] that right or privilege must exist under the general law.’121
In the current case, prima facie the situation appears similar to that in Mulholland, where political parties only had rights to the extent the Commonwealth Electoral Act conferred those rights on them. Therefore, in this instance, any action based on the invalidity of perpetual copyright provisions may fail on the first limb of the Lange test as the Australian public arguably has no ‘pre-existing’ common law or statutory right or privilege to the its public domain, just as in Mulholland there was no right to use the ballot-paper for the purposes of communication. It is arguable that the public domain is a privilege the Australian public is entitled to, or part of the general law. However, even that proposition may be difficult to have more broadly accepted because only a few members have referred to this concept of the ‘general law’ and its role in implied freedom jurisprudence. For example, in ACTV, Gaudron J made reference to freedom of speech as it exists in the ‘general law’,122 and in Levy McHugh J stated that a right to free communication for the purposes of the implied freedom could exist as part of the general law.123 On the basis of these findings, the existence of the public domain could be recognised as part of the ‘general law’.
Of course, it could be argued alternatively that a pre-existing right does exist given that, as discussed in Chapters One124 and Two125 above, the public domain actually predates statutory copyright in Australia.126 Without a copyright statute, all published creations would be in the public domain. However, despite the existence of a few, limited provisions that refer to the use of a copyright-free works as a ‘right’,127 it is difficult to argue that this amounts to a ‘pre-existing right’ or ‘privilege’ for the purposes of the implied freedom. Therefore, this constitutional analysis actually reveals an interesting
121 Levy (1997) 189 CLR 579, 622. 122 ACTV (1992) 177 CLR 106, 211. 123 Levy (1997) 189 CLR 579, 622. 124 See Chapter One Part I. 125 See Chapter Two Part II Section B. 126 See also Sir Gerard Brennan, Foreword, in Chesterman, above n 44, vii (noting, and citing Lange, that ‘[t]here is no common law right to free speech which trumps other legal rights but there is a general freedom of speech because of the common law principle that “everybody is free to do anything, subject only to the provisions of the law”.’) 127 See Chapter Four Part III Section A(i). 82 conclusion regarding the current existence of the public domain: Australia’s public domain is a negative concept under both Australian section 51(xviii) and implied freedom of political speech constitutional jurisprudence. The Australian public lacks any positive rights to its public domain.128
Moving to the second limb of the Lange test, this requires consideration of whether perpetual protection for all Crown-copyright materials is ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of representative and responsible government’ in the Australian Constitution. As I noted earlier, when evaluating this limb, the end and the manner in which this end is achieved must be considered to determine whether both are compatible with the Australian constitutional system of government.129
In this case, the court would have to determine the ‘end’ being pursued by the granting of perpetual copyright. Although this is open to debate, it is arguable that, if the Federal Parliament did ever introduce perpetual copyright protection, it would be with a view to further protecting the interests of copyright owners and thus this broad approach will be adopted here. Given that the protection of owner interests is justifiable as a ‘legitimate end’, the broader issue would be whether the manner in which this end is achieved – the granting of perpetual copyright – is reasonably appropriate and adapted and compatible with the Australian system of representative and responsible government.
In determining this issue, two related questions require examination: is the fact that no government works will ever enter the public domain reconcilable with the Australian system of government and, more broadly, how important is the Australian public domain to our system of democracy? Again, this also raises issues with the phrase ‘government works’: while the analysis below focuses solely on works produced by government employees, there is also the issue of works that are funded by government but where an individual owns the copyright.130 As noted above, the most prominent example of this is with respect to copyright works produced where the author received government research funding. Given that there are already moves to have such works
128 This conclusion highlights the need for greater constitutional and legislative consideration, as discussed in greater detail in Appendix A. 129 Coleman (2004) 220 CLR 1, 50. 83 automatically enter the public domain, at least in the United States context, perpetual copyright in these works would also cause substantial political and, perhaps, constitutional problems.131
These are difficult questions to answer and the manner in which this question is approached depends on the views on construction of the sitting High Court. Given that this Thesis considers a number of issues regarding the public domain in Australia, a full examination of these issues is beyond this Chapter. However, I believe that there are two possible methods for considering these issues:
A. The public benefit that flows from creations being in the public domain is important to Australia’s system of democracy; and B. The public domain is worthy of additional protection given the historical trend of the use of copyright for censorship purposes.
I will briefly consider each in turn.
First, the Court could give these questions a relatively simple answer: the public domain is important to the Australian system of government because there is a public benefit that emerges from the free flow of information. While copyright does not burden the free communication of ideas concerning government or political matters, it does burden communication on government or political matters where such communication needs content that is fixed in a work, whether it be a book, film, or photograph. The broader public domain arguably acts as a balance in this dichotomy. When that work enters the public domain, a communication can use that specific work without copyright restriction. A grant of perpetual copyright therefore unduly restricts this, particularly in the case of published works.
There is evidence to suggest that some members of the High Court, at least in the past, may have taken such an approach. In the pre-Nationwide News decision of Davis v
130 See Chapter Three Part III Section B above. 131 See the Public Access to Science Act, HR 2613, 108th Congress (‘To amend title 17, United States Code, to exclude from copyright protection works resulting from scientific research substantially funded by the Federal Government.’) See also Venturous Australia – building strength in innovation (Report on the Review of the National Innovation System) (2008) 95-98. 84 Commonwealth132 (‘Davis’), Mason, CJ, Deane and Gaudron JJ (in a joint judgment) and Brennan J note the ‘extraordinary intrusion into freedom of expression’133 that resulted from controlling uses of words related to the Australian Bicentenary.134 These words included a combination of the terms ‘Melbourne’ and Sydney’ and ‘1988’, rendering, for example, the simple phrase ‘Family Law Conference Melbourne 1988’ an infringement of the Act in question.135 Mason CJ, Deane and Gaudron JJ held that the law was ‘not reasonably and appropriately adapted’ to achieve its end.136 However, it should be noted that, in Davis, the use of specific words was in question, rather than complete works.
Further, in Levy, McHugh J stated, in the context of television, that:
No one could fail to understand the impact of the war in Vietnam on the civilian population after seeing the picture of a terror-stricken, naked child running away from her burning village. Such an image probably had more to do with influencing United States public opinion against the war in Vietnam than any editorial of The New York Times or Washington Post.137
Kirby J made a similar point in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd138 (‘The Panel’), a copyright decision of the High Court:
Those who conceive the Parliament as confining the scope of the new copyright protection for television broadcasts to entire programmes (or defined and undefined sections and segments of a continuous day's broadcasting) must not watch much television. It is the very power of particular, and often quite limited (even fragmentary) portions of "visual images" on television that makes it such a potent and commercially valuable means of expressing thoughts and ideas: noble and banal, serious and humorous, uplifting and discouraging.139
These statements echo implicitly the argument made by Nimmer, discussed earlier: a picture really is worth a thousand words and copyright law restricts when, where and by whom that image can be reproduced (subject, of course, to the limited fair dealing
132 (1988) 166 CLR 79. 133 Davis (1988) 166 CLR 79, 100. 134 Per Mason CJ, Deane and Gaudron JJ at (1988) 166 CLR 79, 99-100; Brennan J at 116. According to Chesterman, Davis is the most significant High Court decision on freedom of expression prior to Nationwide News and ACTV: see Chesterman, above n 44, 15-16. 135 Per Mason CJ, Deane and Gaudron JJ at (1988) 166 CLR 79, 99. 136 Davis (1988) 166 CLR 79, 100. 137 Levy (1997) 189 CLR 579, 624. 138 (2004) 218 CLR 273. 139 The Panel (2004) 218 CLR 273, 308. 85 exceptions).140 Facts are ‘free’ and constitute a part of copyright’s public domain: any individual is free to describe the situation encapsulated in that photograph, as McHugh J did. However, there will be times when public domain words and the limited exceptions that the Copyright Act provides may not be enough, especially concerning images..141
It is also arguable that the Court could find the public domain was significant in a discussion involving the implied freedom based on the theoretical importance of this space to Australian democracy. A full analysis of democratic theory is beyond the boundaries of this Thesis, although US public domain scholarship, while grounded in part in a First Amendment-guaranteed nature of democracy, is informative in this sense. Although there are different formulations of the concept of democracy, Birnhack states:
Instead of a majoritarian view that focuses on the once-in-every-few-years elections, we can view democracy to be interested also in what happens between elections: this view holds that citizens form their political views not only immediately before voting, but in any daily social practice. Accordingly, the weight of the self-government principle shifts from the singular act of voting to the on-going collective deliberation….A robust public domain provides both the resources of such a debate and its forum.142
Some aspects of this public domain-supporting conception of democracy are reconcilable with the Australian system of government. The Court in Lange held that the operation of the implied freedom should not be confined to election periods on the basis that any temporal limitation deprives electors ‘of the greater part of the information necessary to make an effective choice at the election.’143 Related to such a point are broader freedom of information arguments, and whether the public has the right to all forms of information that are relevant to making an informed choice as electors.144 Nevertheless, it is questionable whether the Court would accept such an argument given how the implied freedom and the notions of government that it stems
140 See discussion in Section B above. 141 It is equally arguable that literary works produced by government should also eventually enter the public domain on the basis of the free flow of information: see, eg, Fairfax (1980) 147 CLR 39; Ashdown v Telegraph Group [2001] EWCA Civ 1142. 142 Birnhack (2006), above n 9, 81 (citations omitted). 143 Lange (1997) 189 CLR 520, 561. 144 These arguments are also considered in current pushes for a Bill of Rights. At the time of writing the report by the National Human Rights Consultation, led by Father Frank Brennan, had just been released, recommending the enactment of a Human Rights Act at the Federal level (Recommendation 18), with the inclusion of a right of freedom of expression (Recommendation 25). This additional protection may have a future impact on the present discussion. See National Human Rights Consultation, Report (2009). 86 from have been read down in later decisions concerning its scope. As Chesterman notes, the implied freedom cases indicate a shift from a model of an active, participatory democracy, where individuals have ‘autonomous rights of participation in public debate’145 in the first few High Court cases to one of an institutional democracy in more recent decisions.146 Nevertheless, this is a possible argument.
Second, it is also arguable that the Court could strike down a grant of perpetual copyright given the historical trend of governments using copyright as a tool for censorship. Although greater control over its works may only be a by-product of granting perpetual copyright, the symbolism of this increased control cannot be denied. As Prescott notes, ‘[f]rom about the time printing was introduced into England until the last Licensing Act was repealed in 1694 the authorities had the right to prohibit the printing of anything.’147 Patterson and Lindberg opine that this pre-Statute of Anne period has been relegated to a ‘mere footnote in copyright history’148 but is undeniable that the creation of the Stationers’ Company was in part as a tool for censorship. The Stationers’ Company benefited from this early ‘copyright’ as protection of property interests; government benefited from the use of copyright as censorship.149
In response to these suggestions, it is arguable that if this is the case, the problem is not the grant of perpetual copyright but permitting copyright for government works in the first place. Indeed, the issue of using copyright as censorship was implicitly addressed in Fairfax, where Mason J held that the concern of the Commonwealth ‘to stop publication of the information in the documents is not a reason for refusing it the protection to which its copyright entitles it.’150 However, Fairfax was decided in the context of an application for an interlocutory injunction: had the case proceeded, Mason J may have given greater consideration to the issue of freedom of expression, as his
145 Chesterman, above n 44, 28. 146 Ibid 27-37. 147 Peter Prescott, ‘The Origins of Copyright: A Debunking View’ [1992] 12 European Intellectual Property Review 453, 453. 148 L Ray Patterson and Stanley W Lindberg, The Nature of Copyright: A Law of Users’ Rights (1991) 125. 149 Ibid 26. See also Raymond Astbury, ‘The Renewal of the Licensing Act in 1693 and its Lapse in 1695’ (1978) 48 (5th series) Library 296; John Feather, ‘From Rights in Copies to Copyright: The Recognition of Authors’ Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries’ (1991/1992) 10 Cardozo Arts & Entertainment Law Journal 455, 458-466. 150 Fairfax (1980) 147 CLR 39, 58. 87 treatment of this issue in Davis suggests. Indeed, such a proposition is reflected in the statement of Mason J regarding the possible application of the fair dealing provisions:
a dealing with unpublished works which would be unfair against an author who is a private individual may nevertheless be considered fair as against a government merely because that dealing promotes public knowledge and public discussion of government action.151
Should perpetual copyright be introduced, it is arguable that this distinction between government and private individuals be expanded, beyond fair dealing, to the length of copyright protection.
While it is unclear whether the public domain may be protected under the implied freedom, it is clear that should perpetual copyright be raised in this context the above issues highlight that the public domain should play some role in the High Court’s consideration.
D. CONCLUSION
This Part has highlighted a number of significant issues regarding the relationship between Australia’s public domain and freedom of expression.
First, as predicted in the Introduction to this Chapter, while commentators believe that individuals gain much from the relationship between the public domain and the First Amendment, the same does not apply in an Australian constitutional context.
Second, however, one of the reasons that both the Copyright Act as a whole and a number of provisions of this statute will not violate Australia’s implied guarantee of freedom of political communication is the existence of certain public domain doctrines. Both the idea/expression dichotomy and the limited term of protection appear to assist the Copyright Act in achieving its goal – the protection of works and other subject matter – in a manner that is reconcilable with Australia’s system of representative and responsible government. However, as illustrated in Part B above, there are some limitations on the relationship between the implied freedom and the public domain: the idea/expression dichotomy does not allow for the use of the whole work, and the term
151 Ibid 55. 88 of copyright is also quite substantial. Thus, while the provisions of the Australian Copyright Act may pass the Lange test because of these doctrines, their effect is still limited.
Third, the analysis in Part C revealed a number of significant issues. My use of the hypothetical introduction of perpetual copyright for all government works highlighted how easily the balance may go against the Copyright Act under the Lange test. This example also illustrated the fragile nature of Australia’s public domain: although it predates Australian statutory copyright and would exist in the absence of any legislation on this topic; without any positive right it is difficult to see how it could be protected under the implied guarantee of freedom of political communication or any similar constitutional doctrine.
There are, however, arguments that the High Court could employ to strike down the introduction of perpetual copyright for government works pursuant to the Lange test: the public domain is an essential part of Australian democracy, and the introduction of perpetual protection is a relic of copyright as censorship from days gone by. The High Court may find either appropriate to strike down perpetual copyright and therefore the implied freedom could be used to protect the public domain for Crown or political works in future litigation.
IV. CONSTITUTIONAL FOUNDATIONS: THE IMPLIED FREEDOM AND THE PUBLIC DOMAIN
In Chapter One, I noted my motivation for commencing this analysis of the public domain on two Australian constitutional doctrines: the repeat emphasis on the interrelationship between similar provisions contained in the United States Constitution and the public domain. Chapters Two and Three of this Thesis have illustrated why these were a useful place to begin my analysis of Australia’s public domain. Although much of this US-influenced literature has been debunked in its application to Australia, there are a number of intricacies surrounding the public domain under Australian law and the role that it does or could play within interpretation of Australian constitutional and copyright doctrines. It is difficult to call Australia’s public domain a ‘playground for speech-experiments’ under Australian constitutional law, yet there is arguably
89 enough evidence to suggest that the public domain does gain some, albeit fragile, constitutional significance here. It would be beneficial for Australian copyright scholars to reflect on some of the arguments raised here and the importance of such issues and the public domain for Australian civil and political society.
Subsequent Chapters focus on the boundaries of the public domain and how these have been shaped under past and present Australian copyright legislation, to gain a greater understanding of the position of this concept under Australian law. I will evaluate these laws using the same standard as over the previous two Chapters: whether its creation under law has been more implied than express, and what significance can also be attributed to it throughout the development of Australian copyright law, from colonial law through to today.
90 CHAPTER FOUR
COLONIAL COPYRIGHT AND THE BIRTH OF A NATION’S PUBLIC DOMAIN
I. INTRODUCTION: COLONIAL COPYRIGHT AND PUBLIC DOMAIN ISSUES
It is perhaps trite to observe that the laws of the United Kingdom, with respect to copyright and more generally, have had a significant influence on the laws of Australia. Such an influence is not surprising, particularly in the colonial example: the colonies of Australia were the colonies of the United Kingdom, part of the British Empire, originally created as a solution to the overpopulation of prisons and a place of transportation for convicts.1 Although that position began to change in the early 1840s, as transportation of convicts to the colonies ceased, the Australian colonies remained colonies of the United Kingdom.2 As noted in Chapter Two, even the Australian Constitution, crafted and eventually agreed upon by colonial residents in 1900, was a statute of the UK Parliament. In a copyright context, this has been noted with respect to the colonies of Australia, and even today, Australia’s statutory copyright and case law bear a strong resemblance to their United Kingdom counterparts.3
Nevertheless it would be incorrect to suggest that in a copyright context the colonies accepted and introduced Imperial law without any consideration of local circumstances. Indeed, in several cases, if it had not been for the legislatures of those colonies, no copyright protection would have been available to creators within that jurisdiction at all. I discussed in Chapter One the unsatisfactory state of copyright in the colonies.4 The effect of Routledge v Low5 (‘Routledge’) was to deny protection throughout the Empire to books that were not first published in the United Kingdom. Thus, an interesting
1 See generally CMH Clark, A History of Australia: Volume One (1962) Part II, ‘The Foundation’ 59- 110. 2 See generally CMH Clark, A History of Australia: Volume Three (1973). 3 Staniforth Ricketson, The Law of Intellectual Property (1984) [4.51]. Although the Copyright Act 1968 (Cth) bears a strong resemblance to UK law, the influence of UK copyright law and policy has lessened in recent years, particularly since the UK became a member of the European Union. For example, despite the fact that the UK introduced the ‘life-plus70’ term of protection pursuant to the Council Direction 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/9, Australia did not introduce the same extension until compelled to by the United States, over a decade after the initial EU Directive. 4 See Chapter One Part I above. 5 (1868) LR 3 HL 100. 91 paradox emerged, as reflected by an 1878 parliamentary review into UK, colonial and foreign copyright:
Copyright in the United Kingdom extends to every part of the British dominions, but if a book be published first in any part of the British dominions other than the United Kingdom, the author cannot obtain copyright, either in the United Kingdom or in any of the colonies, unless there is some local law in the colony of publication under which he can obtain it within the limits of that colony.6
Following the Routledge decision the UK Parliament apparently needed 18 years to rectify this situation and pass the International Copyright Act 1886 (UK).7 Yet it only took the Victorian colonial legislature a year to act and pass a copyright law that would provide some protection within that jurisdiction. If the colonies had simply followed the UK position, then even the limited copyright protection that each introduced would not have been available to authors. Therefore it is arguable that Australia’s public domain was not first borne out of works where copyright had expired, but works that were either:
A. not entitled to copyright protection anywhere because the work was published in a colony without a copyright statute; or B. the work was only entitled to protection in one jurisdiction, that is, the colony of first publication, and beyond that it was in the public domain.8
The colonial copyright laws introduced in Victoria,9 South Australia,10 New South Wales11 and Western Australia12 were all drafted against this backdrop, whereby
6 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046) [51]. 7 49 & 50 Vict, c 33. 8 As noted in Chapter One, this situation was not rectified until the post-Berne Convention International Copyright Act 1886 (UK) 49 & 50 Vict, c 33; see Chapter One Part I above. See also Luke Trainor, ‘Imperialism, Commerce and Copyright: Australia and New Zealand, 1870-1930’ (1997) 21 Bibliographical Society of Australia and New Zealand Bulletin 199; Lionel Bently and Brad Sherman, ‘Great Britain and the Signing of the Berne Convention in 1886’ (2001) 48 Journal of the Copyright Society of the USA 311, 318-325; Fishburn Brothers v Adelaide Cyclorama Co. Ltd (1892) 25 SALR 20. But see Jones v Nicholson and Co (1892) 9 WN (NSW) 74. 9 Victoria superseded its 1869 statute with a new copyright statute, enacted in 1890: see An Act to consolidate the Law relating to Copyright, 54 Vict no 1076; Copyright Act 1890 (Vic). This Chapter will reference the equivalent provisions of both statutes. 10 An Act to regulate the Law of Copyright, and for other purposes; 41 & 42 Vict no 95 (SA); The Copyright Act 1878. 11 An Act to secure to Proprietors of Works of Literature and Fine Art and to Proprietors of Designs for Articles and Works of Manufacture and Art the Copyright of such Works and Designs for a limited period, 22 Vict no 20; Copyright Act 1879 (NSW). Both Atkinson and Minnell reference an 1852 statute that is not referred to in other colonial copyright discussions: see Ben Atkinson, The True History of Copyright: The Australian Experience 1905 – 2005 (2007) 14; Merilyn Minnell, A Nation’s 92 copyright protection was not available to works first published in the Australian colonies and those works would subsequently enter the public domain. Although the Routledge case is not explicitly named, it is clear from parliamentary debate that the 1869 Victorian statute, for example, was created in response to the dilemma created specifically by this case.13
The provisions of these statutes were clearly based on British legislation, with one key difference that I noted above in Chapter Two: these sections, although selected from the Imperial laws, were amalgamated into one piece of legislation.14 As Ricketson notes, unlike ‘their Imperial counterparts: the particular colonial law dealing with copyright was to be found in one Act, not in 14 or 15 separate enactments scattered throughout the statute books.’15 This was a bold move based on limited precedent and provides further support for my argument that the colonies did not merely accept the UK statutes without question. The provisions of these statutes included sections from the Literary Copyright Act, the Lectures Copyright Act 1835 (UK),16 and the Fine Art Copyright Act 1862 (UK).17 It is worth noting that all but one of these statutes included provisions covering ‘design copyright’, or what is today considered design registration.18 These provisions will not be considered here.
Imagination: Australia’s Copyright Records, 1854 – 1968 (2003) 25, footnote 49. The statute in question is An Act to authorize the Governor General with the advice of the Executive Council to grant Letters of Registration for all inventions and improvements in the Arts or Manufactures to have the same effect as Letters Patent in England so far as regards this Colony, 16 Vict no 25. Pursuant to section 1 the Governor could create Letters of Registration for between seven-14 years ‘for all inventions or improvements in the Arts or Manufactures to the author or authors or designer or designers’. However, this statute was not constructed in the same manner as either the UK or subsequent colonial copyright statute and will not be discussed here. 12 59 Vict no 24; The Copyright Act, 1895 (WA). In 1887 Western Australia did introduce the limited Copyright Register Act 1887, 51 Vict no 3 (WA), but this was repealed under the more expansive 1895 legislation. 13 See however Victoria, Parliamentary Debates, Legislative Assembly, 31 August 1869, 1837 (Mr Higinbotham) (not explicitly referencing Routledge but noting an unnamed case of the House of Lords where it was established that copyright protection goes to the publisher rather than the author). 14 See Chapter Two Part II Section B above. 15 Staniforth Ricketson, The Law of Intellectual Property (1984) [4.51]. See also Robert Burrell, ‘Copyright Reform in the Early Twentieth Century: the View from Australia’ (2006) 27 (3) Journal of Legal History 239, 242-246. For a greater discussion of the political context underpinning the passing of these Acts, see Jeremy Finn, ‘Particularism Versus Uniformity: Factors Shaping the Development of Australasian Intellectual Property Law in the Nineteenth Century’ (2000) 6 Australian Journal of Legal History 113, 127-129. 16 5 & 6 Wm IV, c 65 (hereafter the Lectures Copyright Act). 17 25 & 26 Vict, c 68 (hereafter the Fine Arts Copyright Act). 93 In contrast, however, two of the colonies did refrain from introducing similar legislation. In Queensland three separate statutes were introduced, yet the first of these, The Copyright Registration Act (Queensland) 188719 simply incorporated all UK statutes in force at that time without including the individual sections of those statutes, as permitted under the International Copyright Act 1886.20 The Queensland statute also provided for the registration of books and dramatic pieces created within that colony.21 Neither of the subsequent statutes changed this situation to any significant degree.22 However, the colony of Tasmania refrained from introducing any form of major copyright statute at all. The only related legislation that was passed in that colony was The Newspaper Copyright Act 1891 (Tas).23 The limited, though important, provisions of this law will be discussed in Part II below.24
The above analysis provides an idea of the colonial birth of the public domain. However, what needs to be considered for the purposes of this Thesis is the significance, if any, of this public space at this time and following the introduction of these statutes. While this space was broad at birth, and even once the first colonial laws were passed it continued to be quite large in scope, identifying the boundaries of this space reveals nothing as to its significance at this time. This Chapter, therefore, aims to partially fill this gap by providing both a detailed discussion of the public domain under the various colonial copyright statutes and a discussion of any evidence as to its possible significance at this time. The following issues are analysed:
18 The Victoria (1869 and 1890), South Australia and New South Wales statutes all contained parts covering design registration. The Western Australia statute did not contain such provisions. See also R v Radke; Ex parte Dyke (1882) 8 VLR (L) 23. 19 An Act to make Provision for the Registration of Copyright in Books and Dramatic Pieces Published in Queensland, 51 Vict, no 2; The Copyright Registration Act (Queensland) 1887. 20 49 & 50 Vict, c 33 s 8. 21 51 Vict no 2, ss 3-6. 22 The Copyright (Fine Arts) Registration Act, 1892 (Qld) provided for the registration of works of fine art: see 56 Vict no 6. See also The Copyright Registration Act 1898 (Qld): 62 Vict no 13. 23 55 Vict no 49. The reason that Tasmania introduced a copyright statute to only protect newspapers and telegrams may be the fact that Tasmania had a limited publishing industry: see Michael Sprod, ‘Publishing’ in The Companion to Tasmanian History
This structure highlights the distinctly public domain issues that need to be considered here, rather than the broader issues inherent in copyright protection in the colonies. Within each category, the following types of creation are considered: books; paintings, drawings, works of sculpture, engravings and photographs; telegrams; and lectures. Further, in each instance I will use the provisions of the Victorian Copyright Act 1869 as my primary example, given the influence of this law on the other subsequent colonial statutes. I will refer to the equivalent provisions where necessary.
II. PUBLIC DOMAIN ASPECTS OF THE COLONIAL COPYRIGHT STATUTES
A. THE RIGHTS GRANTED
i. BOOKS
Johanson notes that, in the emerging colonies, ‘[t]he local bookshop was an important cultural institution in the community, particularly before the development of free municipal libraries in Australia’.25 Despite such significance, the colonies did not enjoy a thriving local publishing industry and many of the books gracing the shelves of these popular local bookshops were overseas imports. Indeed, during this time the colonies earned the reputation for being ‘the jewel in Britain’s book trade empire.’26
The law, however, did not confine its definition of a ‘book’ to what could be solely found on the shelves of colonial bookstores. Pursuant to section 2 of the 1869 Victorian Act, the terms ‘book’ and ‘copyright’ were defined respectively to mean:
That the word “book” shall mean and include every volume, part or division of a volume, newspaper, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan, separately published….
25 Graeme Johanson, ‘“Cultural Cringe” or Colonial Fringe?’ (1985) 17 Melbourne Historical Journal 78, 82. 26 Martyn Lyons, ‘Britain’s Largest Export Market’ in Martyn Lyons and John Arnold (eds), A History of the Book in Australia 1891 – 1945: A National Culture in A Colonised Market (2001) 19, 19. 95 That the word “copyright” shall mean the sole and exclusive right and liberty of making, printing, writing, drawing, painting, photographing, or otherwise howsoever multiplying copies of any matter, thing, or subject to which the said word is herein applied, or to which any original design as hereinafter described in section three of Part I. has been applied.
In both cases, the definitions provided were all-inclusive, and, in terms of what ‘copyright’ meant, different forms of copyright – printing, drawing, painting etc - were included in the same provision. The definition of the term ‘book’ was fundamentally the same as the definition provided in the UK by virtue of section 1 of the Literary Copyright Act, with one exception: the term ‘newspaper’ was included in the definition of a ‘book’ in the colonial provisions.27 The definition of ‘copyright’ in the colonial and UK statutes contained more substantial differences. The only definition that the Literary Copyright Act gave to the term ‘copyright’ was ‘that the Word “Copyright” shall be construed to mean the sole and exclusive Liberty of printing or otherwise multiplying Copies of any Subject to which the said Word is herein applied’. Although, by implication, the definitions may have been the same, the lack of a more concrete definition supports the statement of Lord Cranworth in Routledge, extracted above in Chapter Two, that the 1842 statute ‘assumes copyright to be a well-known right’ and consequently did not define the term.28
One of the few cases arising under the colonial statutes dealt with copyright in a series of publications: pamphlets and, more importantly for the present discussion, the facts contained therein. The case arose under the 1890 Victorian provisions and involved a topic that has become increasingly controversial in recent years – compilation copyright. In T M Hall & Co v Whittington & Co29 (‘T M Hall’) the defendant claimed that copyright did not subsist in a collection of pamphlets containing public information that had been collected by the plaintiff’s employee, upon payment of a fee to inspect a public register. The defendant argued that the information was ‘publici juris, and that the information published can be obtained by anyone who pays one shilling and searches the books of the registry’.30 Holroyd J held that the pamphlets did constitute a ‘book’ under the 1890 Act and copyright subsisted in them. His Honour found that the
27 Cf 5 & 6 Vict, c 45, s 2 with 33 Vict no 350 (1869, Vic) s 2; 41 & 42 Vict no 95 (SA) s 2; 42 Vict no 20 (NSW) s 2; 54 Vict no 1076 (1890, Vic) s 3; 59 Vict no 24 (WA) s 4. 28 See Chapter Two Part II Section B above. 29 (1892) 18 VLR 525. 96 pamphlets ‘were not mere transcripts of entries contained in the books of the Registrar- General, but compilations derived from sources accessible to everybody’.31 This suggests that, at this time, it was possible to receive copyright protection for a compilation of facts, though the facts themselves were not protected. Such a finding is of particular relevance to the discussion below with respect to facts and ideas in telegrams and lectures under the colonial statutes.32
Greater definition was given to the rights of the copyright owner in section 14 of the Act. This section provided for the subsistence of copyright ‘in every book which shall, before or after the passing of this Act, have been or be first published in the colony of Victoria in the lifetime of its author’.33 It provided similar protection for posthumous publications. Thus, copyright in Victoria (and its colonial equivalents) applied both retrospectively and prospectively: all works produced prior to the passing of the statute were entitled to protection. The colonial laws therefore ‘removed’ these pre-statutory copyright publications from the public domain, though it does not appear that there was any outcry at the enactment of this provision.
A number of provisions supplemented these sections: section 15 provided that, where, after the death of the author, the proprietor of the copyright refused to republish a book, the Victorian Governor could grant a licence to any complainant allowing further reproduction of the book in question.34 Sections 16 through 20 dealt comprehensively with the registration requirements for a grant of copyright. However, it is important to note that publication, rather than registration, was a precondition to copyright subsistence. Registration was only important where the proprietor of the copyright needed to sue for piracy.35 This indicates that books never entered the public domain through a lack of registration, as I hypothesised earlier in Chapter One.36
30 T M Hall (1892) 18 VLR 525, 526 (emphasis in original). The reference was made in an argument by the plaintiff. 31 T M Hall (1892) 18 VLR 525, 537. See also Piddington v Philip (1893) 14 NSWLR 159, 164. 32 See Part II Section A(iii) and (iv) below. 33 See 33 Vict no 350 (1869, Vic) s 14; 41 & 42 Vict no 95 (SA) s 13; 42 Vict no 20 (NSW) s 3; 54 Vict no 1076 (1890, Vic) s 15; 59 Vict no 24 (WA) s 5(1), (3). 34 See 33 Vict no 350 (1869, Vic) s 15; 41 & 42 Vict no 95 (SA) s 14; 42 Vict no 20 (NSW) s 4; 54 Vict no 1076 (1890, Vic) s 16; 59 Vict no 24 (WA) s 6. 35 See 33 Vict no 350 (1869, Vic) s 28; 41 & 42 Vict no 95 (SA) s 27; 42 Vict no 20 (NSW) s 17; 54 Vict no 1076 (1890, Vic) s 29; 59 Vict no 24 (WA) s 13; see also Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, 358. Piracy occurred when an individual, without permission, printed or sold infringing copies of the book, or caused such activities to occur: see 33 Vict no 350 (1869, Vic) s 21; 97
The rights granted pursuant to the colonial statutes were quite limited in nature. As noted above, under section 2 of the 1869 Victorian Copyright Act, ‘copyright’ was defined exhaustively as ‘the sole and exclusive right and liberty of making, printing, writing, drawing, painting, photographing, or otherwise howsoever multiplying copies of any matter, thing or subject’. When this definition is read against the section 2 definition of a ‘book’, copyright in books was limited to the exclusive right to make, print, write, and reproduce copies of the text. There was no specific statutory right to translate a book into a non-English language or dramatise a book, as the example of Clarke’s His Natural Life illustrates.37 As such, every work protected under statutory copyright contained these ‘public domain’ aspects.38
The question that follows is whether these public domain rights of translation and dramatisation were of any importance to the public, and consequently whether the public domain gains any significance here. In terms of the translation aspect, despite the fact that the colonies were home to many migrants of various language groups in the period leading up to Federation,39 it does not appear that the translation right to a book
41 & 42 Vict no 95 (SA) s 20; 42 Vict no 20 (NSW) s 10; 54 Vict no 1076 (1890, Vic) s 22; 59 Vict no 24 (WA) s 15. 36 See Chapter One Part II Section A(iii) above. But see Lionel Bently, ‘R. v The Author: From Death Penalty to Community Service 20th Annual Horace S. Manges Lecture, Tuesday, April 10, 2007’ (2008) 32 Columbia Journal of Law & the Arts 1, 7, footnotes 40, 43. 37 Of course, copyright would have subsisted in these unauthorised, albeit legal, dramatisations and translations. See, eg, Weekes v Williamson (1886) 12 VLR 483, 488. 38 There is some debate regarding the abridgement of books, though this primarily arises in the UK. It appears that, in many cases, UK courts were willing to find that a ‘fair abridgement’ of a book had occurred: see David Vaver, ‘Abridgments and Abstracts: Copyright Implications’ [1995] 5 European Intellectual Property Review 225; Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact (2005) 253-256; Kathy Bowrey, ‘On clarifying the role of originality and fair use in 19th century UK jurisprudence: appreciating “the humble grey which emerges as the result of long controversy”’ in Lionel Bently, Catherine Ng, Giuseppina D’Agostino (eds) The Common Law Of Intellectual Property: Essays in Honour of Prof David Vaver (forthcoming) 8-9. This issue never arose with respect to books in Australia, although Wilson v Luke (1875) 1 VLR 127, discussed in greater detail in Section A(iii) below, concerned what may be described as an abridgment of a telegrams published in the Argus newspaper. Vaver notes this case in his 1995 article under the heading ‘Impermissible abstracts’ but his analysis ignores the potent relationship between law and telegrams at this time in the Australian colonies: Vaver, 234. This relationship, and the broader consequences of Wilson v Luke, are discussed in Section A(iii) below. 39 According to an Australian Bureau of Statistics collection of data based on censuses undertaken by each of the states and territories in 1901, 149 667 residents of Australia were born in a country where English was not the primary language (for example, the colonies of Australia, Great Britain, Canada, New Zealand or the United States would all be counted as countries where English was the primary language). This was out of a total Australian population of 3 773 801 at 1901. The largest number of these migrants came from Germany (38 352), China (29 907), and Sweden and Norway (9863). See Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 9.7: Population, sex and country of birth, states and territories, 1901 census’, 2008, 98 entering the public domain was of any benefit to such groups. Holmes writes that the years immediately preceding Federation ‘can by no stretch of the imagination be considered a heyday of publishing in languages other than English in Australia’.40 However, this is not reflected in books produced by colonial authors or publishers. Although, for example, the catalogue of one of the mildly successful colonial publishers, E A Petherick & Co’s featured a number of translations, these were publications of international, as opposed to Australian-based texts.41 It appears that newspapers were the preferred medium of non-English speaking colonial residents, leading to a rise in Australian-based non-English-language press.42 On this basis the public domain-based right of translation was, perhaps surprisingly, of little benefit to the public during this period.
In contrast, while the lack of an exclusive dramatisation right may have been unfair to the author (as Weekes v Williamson43 illustrates) there is evidence that the fact these rights entered the public domain was to the benefit of the development of Australian culture. A popular pastime in the colonies was the attendance of live theatrical productions; as Kelly describes it, ‘Australia as a series of six British colonies was meshed into the global commercial popular entertainment industry, linked by continuous touring by artistes and companies’.44 Many plays developed for the colonial stage were based upon existing books: Clarke himself dramatised a number of national
There were, of course, some problems with this situation. For example, although Weekes confirmed that copyright would subsist in the subsequent dramatisation, that protection would have only extended throughout Victoria: the dramatisation was in the public domain in all other jurisdictions. Clarke actually wrote to The Australasian regarding an unauthorised Sydney performance of his dramatisation of Charles Reade’s Foul Play.46 In the same comment, Clarke complained about the lack of rights for authors in this area, questioning why both he and other playwrights should be able to adapt the work of others.47 Therefore, although Clarke himself benefitted from the public domain in this respect – and the public also benefitted from the dramatisation right being in the public domain - as a creator Clarke was critical of this situation.
It is also arguable that the fact the dramatisation right was in the public domain actually led to a far more diverse selection of dramatisations than if the original author had sole control, providing a further benefit to the public. Four adaptations of His Natural Life were produced in Australia in 1886 and each differed in their emphasis on story and characters, according to the playwright and the leading man (who were often the same).48 According to Fotheringham, eleven productions of His Natural Life (or a variant of the novel) had premiered by 1900 at locations ranging from Broken Hill to Launceston, mostly by different theatrical producers.49 Although the stories may have differed in each of the dramatisations, audiences who may have otherwise not have had the chance were able to learn more about the broader theme of Australia’s convict past.50 This public domain aspect arguably held an additional benefit for the public.
45 See Eric Irvin, Australian Melodrama: eighty years of popular theatre (1981) 37. 46 See The Australasian, 6 April 1872, 434. 47 Ibid. 48 See ‘For the Term of His Natural Life – Thomas Walker’ in Richard Fotheringham (ed) Australian Plays for the Colonial Stage 1834-1899 (2006) 456-470, particularly 462. 49 Ibid 458. 50 See, eg, Elizabeth Webby, ‘From Melodrama to Classic Comic: Adaptations of His Natural Life, 1886-1986’ in Irmtraud Petersson and Martin Duwell (eds), ‘And What Books Do You Read?’ New Studies in Australian Literature (1996) 15, 21. 100 ii. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS, AND PHOTOGRAPHS
The colonial copyright statutes provided quite detailed protection for paintings, drawings, sculptures and photographs. For the purposes of clarity this group of creations will be referred to as the more modern term ‘artistic works’, although separated into their different categories where necessary. It will become apparent that the rights granted reveal little about the public domain and its possible significance at this time; greater analysis is undertaken with regard to the term of copyright below.51
Pursuant to section 36 of the 1869 Victorian Act, authors who were British subjects or Victorian residents, ‘of every new and original painting drawing work of sculpture engraving and photograph which shall be or shall have been made in the colony of Victoria’ were entitled to the ‘sole and exclusive right of copyright photographing reproducing and multiplying’ the artistic work in question.52 Section 37 stated that nothing contained in the Act prejudiced the right of a person to copy or use a work in which there was no copyright, or to represent a scene or object where there was copyright in a representation of that scene or object.53 Given the possible public domain significance of this section I will discuss it in greater detail in Part C below. Section 38 provided the registration requirements for artistic works: these were not as stringent as for books, but registration was still required in order to sue for any infringement, as opposed to the subsistence of copyright.54
iii. TELEGRAMS
While I noted above the importance of books in the emerging colonies, there was another medium that surpassed even books in popularity: newspapers. As Twopeny notes in his 1883 text Town Life in Australia, ‘[this] is essentially the land of newspapers….Excepting the Bible, Shakespeare, and Macaulay’s “Essays”, the only
51 See Chapter Four Part II Section B(ii) below. 52 See 33 Vict no 350 (1869, Vic) s 36; 41 & 42 Vict no 95 (SA) s 34; 42 Vict no 20 (NSW) s 25; 54 Vict no 1067 (1890, WA) s 37; 59 Vict no 24 (WA) s 35(1). 53 See 33 Vict no 350 (1869, Vic) s 37; 41 & 42 Vict no 95 (SA) s 35; 42 Vict no 20 (NSW) s 26; 54 Vict no 1067 (1890, Vic) s 38; 59 Vict no 24 (WA) s 36. 54 But see Davis v Hussey & Gillingham [1911] SASR 11, 12. 101 literature within the bushman’s reach are newspapers.’55 Each of the colonies had both city and local papers; arguably the most famous included Melbourne’s The Argus and The Age and Sydney’s The Sydney Morning Herald and Daily Telegraph.56
Newspapers were a colonial resident’s link with local and international news, political and legal developments, culture, and events. In addition to featuring breaking news of general interest, colonial newspapers also featured summaries of judicial decisions and parliamentary debates; advertisements of upcoming events; reviews of books and theatrical productions; obituaries; and tidbits of gossip. With such immense success came an equal amount of power. As Morrison notes, ‘[n]ewspaper men from both city and country often stood for election to the lower house of parliament, the Legislative Assembly, many successfully.’57
Consequently newspapers were protected as ‘books’ under the 1869 Victorian statute, as discussed above. However, it was the news itself that was most valuable in the colonies and the protection afforded to news – or, more specifically, the telegraphic messages that conveyed such news – appears important to a discussion of Australia’s public domain.58 Both publishers and parliamentarians noted the pilfering of news by smaller publications and the damage this practice caused colonial newspapers, who would often enter into pricey agreements with international news organisations for the latest news via telegram.59 As Kinglake noted in an 1892 sketch of the colonies for those intending to settle there, the popular colonial newspapers ‘publish the news of the world every morning, and spare no expense to obtain it.’60 One Victorian colonial parliamentarian stated, when discussing the Telegraphic Message Copyright Bill, that:
Five minutes after the Argus or any other newspaper published news so received [by telegram], the message would become common property, and any person who had a few
55 REN Twopeny, Town Life in Australia (first published 1883, 1973 ed) 221; see also Elizabeth Morrison, ‘Reading Victoria’s Newspapers 1838-1901’ (1992) 11 Australian Cultural History 128, 131-139. 56 Edward Kinglake, The Australian At Home: Notes and Anecdotes of Life at the Antipodes including Useful Hints to those intending to Settle in Australia (1892) 96. 57 Morrison, above n 55, 135-136. 58 Cf International News Service v Associated Press 248 US 215 (1918). For a fuller account of the issues created by the introduction of telegraphic property rights see generally Lionel Bently, ‘Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia’ (2004/2005) 38 Loyola of Los Angeles Law Review 71. 59 KT Livingston, The Wired Nation Continent: The Communication Revolution and Federating Australia (1996) 56-57. 60 Kinglake, above n 56, 96. 102 shillings and a printing press could strike off any number of copies, and sell them at a farthing each.61
The problem appeared to be the public domain: because such information would enter the public domain at publication, it was easy for other newspapers to quickly reproduce this news. Nevertheless, in contrast to parliamentarians recognising the benefits that would flow to the public from this information entering the public domain, the focus remained on the financial damage that this caused colonial newspaper publishers. Thus, in addition to copyright statutes, three colonies also introduced legislation aimed at protecting rights in telegrams and, as noted earlier, one colony introduced copyright protection for telegraphic messages alone. By 1872 Victoria, South Australia and Western Australia had all enacted statutes that gave newspapers the rights to telegrams sent to them containing news information.62 Tasmania followed in 1891 with a statute containing similar provisions.63 Further, when Western Australia introduced a new copyright statute in 1895, it repealed its previous telegraphic messages law and included provisions to the same effect as its 1872 Act. These statutes were, in the words of one parliamentarian, ‘an entirely new experiment.’64
Pursuant to these laws, newspapers were entitled to an exclusive right to print information conveyed to them by telegram, for a limited period of time. For example, section 1 of the Victorian Telegraphic Messages Copyright Act 1871 stated that
Where any person in the manner hereinafter mentioned publishes in any newspaper any message sent by electric telegraph from any place outside the Australian colonies, no other person shall, without the consent in writing of such first mentioned person or his agent thereto lawfully authorized, print and publish, or cause to be printed and published, during a period of twenty-four hours from the time of such first mentioned publication…the whole or any part of any such message, or… of the intelligence therein contained, or any comment upon or any reference to such intelligence, which will in effect be a publication of the same.65
The nature of these provisions and the colonial statutes more generally goes against one of the doctrines of the public domain that I identified in Chapter One: basic information, facts and ideas are part of the public domain and it is only works that are entitled to
61 Victoria, Legislative Assembly, Parliamentary Debates, 16 November 1871, 1875 (Mr Mackay). 62 The Telegraphic Messages Copyright Act 1871 (Vic), 35 Vict no 414; The Telegram Copyright Act 1872 (SA), 35 & 36 Vict no 10; The Telegram Copyright Act 1872 (WA), 36 Vict no 7. 63 The Newspaper Copyright Act 1891, 55 Vict no 49. 64 Victoria, Legislative Assembly, Parliamentary Debates, 16 November 1871, 1873. 103 statutory protection. These laws altered that situation. Facts, referred to in section 1 of the Victorian statute as ‘intelligence’, which were conveyed to newspapers via telegrams did not enter the public domain, free for all to use, until a certain period had elapsed. Such ‘intelligence’ could not even be commented upon by another newspaper. Yet as the comment by Victorian parliamentarian Mr Mackay, extracted earlier in this section indicates, this was entirely what the Victorian legislature intended: to stop this information becoming ‘common property’ and part of the public domain. The public domain was therefore viewed as bad during this period: its significance was its interference with the commercial viability of colonial newspapers.
Where the information was sent from and where it was received also affected the public domain at this time: under the Victorian and South Australian statutes, only information received from outside the Australian colonies was protected.66 Information that was sent from within Australia was not protected under those statutes, and was therefore part of the public domain.67 However, under both West Australian versions of these provisions, the message needed only to be received from outside Western Australia to receive protection.68 The Tasmanian statute was the most restrictive: the telegraphic message could be sent from inside or outside of Tasmania and in both cases it would receive protection.69 There were also differences in the duration of protection of the telegrams, which I will discuss in greater detail below.70
It is worth noting that while this public domain threat was probable in theory, according to Bently, the Victorian, South Australian, and West Australian statutes were limited in both impact and time of operation.71 On this basis the consequences of this legislation for the public domain should arguably not be overstated. However, given the fact that,
65 See also The Telegram Copyright Act 1872 (SA), 35 & 36 Vict no 10, s 1; The Telegram Copyright Act 1872 (WA), 36 Vict no 7, s 1. 66 See 35 & 36 Vict no 10 (SA), s 1; 35 Vict no 414 (Vic), s 1. 67 This was arguably due to the fact that, at the time of the passing of these laws, the most valuable information and telegraphic messages were received from Europe and the United Kingdom, rather than the other colonies: see, eg, Victoria, Parliamentary Debates, Legislative Assembly, 7 November 1871, 1765 (Mr Duffy). See also K.S. Inglis, ‘The Imperial Connection: Telegraphic Communication between England and Australia, 1872 – 1902’ in A.F. Madden and W.H. Morris-Jones (eds) Australia and Britain: Studies in a Changing Relationship (1980) 21-38; Livingston, above n 59, Ch 3, ‘Australia’s Overseas Cable Link’ 75-105. 68 See 36 Vict no 7 (WA), s 1; 59 Vict no 24 (WA), s 20(1). 69 See 55 Vict no 49 (Tas), s 3. 70 See Section B(iii) below. 71 Bently (2004), above n 58, 163. 104 in colonial Australia, newspapers were one of the few forms of mass media available and telegrams one of the few methods of exchanging information over long distances,72 these statutes did have the potential to alter both the boundaries and the significance of the public domain. Indeed, by the time of the first case in the colonies to deal with copyright and telegrams, only four years after the Victorian legislation was passed, the statute had already lapsed.73 The limited lifespan of the statute suggests that the Victorian colonial legislature did not want to continue its ‘new experiment’. It is also arguable that the motivating factor behind this limited period may have been some recognition that such information should ultimately be ‘common property’ and thus a part of the public domain. Importantly, without any formal policy enunciated by the Victorian legislature it is difficult to reach any solid conclusion on this issue.
Another type of protection, however, was also available for telegrams and the information contained therein, aside from this statutory protection. It appears that a common law property right also protected information. Case law on this issue followed a UK decision on property rights in newspapers, Cox v Land & Water Journal Co74 (‘Cox’). In that case the Vice Chancellor considered the situation of newspapers, which at that time were not explicitly included in the Literary Copyright Act and thus could not be registered. The Vice Chancellor rejected the defendant’s argument that articles produced at the expense of publishers were ‘common property’ and the newspapers were therefore not entitled to property rights or a right to sue for infringement.75 There was property in these newspapers, although the Vice Chancellor grappled with whether this property was in fact ‘copyright’ and concluded that:
I am of the opinion that, whether it be the letters of a correspondent abroad, or the publication of a tale, or a treatise, or a review of a book, or whatever else, he acquires – I will not say as copyright, but as property – such a property in every article for which he pays, under the 18th section of the [Copyright] Act, or by the general rules of
72 See generally Kathy Bowrey, ‘Copyright and the Fourth Estate: Does copyright support a sustainable and reliable public domain of news?’ (Paper presented at the Media, Communications and Public Speech Conference, University of Melbourne, 20 November 2008). 73 Wilson v Rowcroft (1873) 4 AJR 57; see also Wilson v Luke (1875) 1 VLR (E) 127, 140. In an 1897 decision concerning the telegram copyright provisions of the 1895 West Australian statute, the plaintiff failed because the words ‘By telegram’, as required under section 23 of the Act, did not appear with the article in question: see ‘The Newspaper Copyright Act’, The West Australian, 20 December 1897, 5
Further, in the local decision Wilson v Rowcroft77 (‘Rowcroft’), Molesworth J considered copyright in telegrams that were included in the Argus and reproduced by the defendant in the Evening Times newspaper. This action would have been more appropriate under The Telegraphic Messages Copyright Act 1871 (Vic), had it not already lapsed. In the course of argument it was stated that ‘[t]he plaintiffs had a valuable copyright in these telegrams at common law, apart altogether from any act of Parliament. But the Copyright Act of 1869 also gave them the right to have their property protected.’78 In granting the injunction Molesworth J simply spoke in terms of ‘property’, rather than deciding the nature of the property right in question.79 His Honour reflected that:
This is a kind of property which a peculiar state of society has brought into existence for the first time. The plaintiffs have a clear property in that for which they give a price, and from which they obtain a profit, and the defendant appears to have been habitually interfering with that property by publishing, without paying for it, that which they [the plaintiff] have procured by a large outlay.80
In the next decision, Wilson v Luke81 (‘Luke’), Molesworth J again considered copyright in information and again found in favour of the plaintiff publisher of the Argus newspaper. The defendant publisher of the Gipps Land Mercury had originally entered into an agreement with the plaintiff to republish information received via telegram. However, when the defendant stopped paying the plaintiff he received the information from a professional news agent hired to report information from Melbourne. In the course of proceedings the news agent claimed that the infringing information was ‘overheard’ while around the streets of Melbourne. The defendant, in argument, stated that, ‘[t]he sources of information are open to everybody…The question really is, did the plaintiff acquire exclusive rights not to the literary matter, but to the news contained in these telegrams? An author can have no copyright in the subject matter of a book, but
76 Cox (1869) LR 9 Eq 324, 331. 77 (1873) 4 AJR 57. 78 Mr Holroyd, in argument for the plaintiff: (1873) 4 AJR 57, 58. 79 Rowcroft (1873) 4 AJR 57, 61. 80 Rowcroft (1873) 4 AJR 57, 61. 81 (1875) 1 VLR 127. 106 only in the literary performance.’82 The defendant further argued that without The Telegraphic Messages Copyright Act the plaintiff was not entitled to relief.
The plaintiff again sought to rely on both statutory and common law copyright in order to protect the information. His Honour indicated that there was some confusion as to whether there actually was a common law copyright, at least in this context, existing in the colonies, although he did not engage in any significant analysis of this issue.83 However, Molesworth J also distinguished between telegraphic copyright and the ‘property’ right that again the plaintiff was able to rely upon in this case:
As to the argument from the Act No. 414, now expired, that its enactment shows that there was no remedy without it, the prohibition in that Act is more extensive than that which I am about to order, for it extends to publishing the intelligence, not merely copying the telegram.84
Such a statement indicates that Molesworth J, in granting relief, was careful to stress that while the telegraphic copyright statutes had operated to protect information, in their absence it was the telegrams themselves rather than the information that was protected. If only the information was extracted, that action would not constitute infringement. However, this theoretical argument may not have translated into practice.
Indeed, two competing issues are highlighted by the above discussion. First, evidence suggests that, for the most part during the colonial Australian period, facts and information were technically considered to be part of the public domain. This is highlighted by case law and parliamentary reference to concepts including ‘common property’ and ‘publici juris’. Second, however, in colonial Australia a distinct business model also developed that relied upon certain forms of information being restricted, to the benefit of a publisher willing to enter into a financial agreement with an international news service in order to access that information.85 The ability to keep this information out of the public domain and for the exclusive use of one newspaper, or a particular newspaper in the colony, was an important aspect of this business model. It is
82 Luke (1875) 1 VLR 127, 136-137. 83 Luke (1875) 1 VLR 127, 140. 84 Luke (1875) 1 VLR 127, 140-141. 85 See generally Peter Putnis, ‘Reuters in Australia: the supply and exchange of news, 1859-1877’ (2004) 10 Media History 67; Peter Putnis, ‘How the International News Agency Business Model failed – Reuters in Australia, 1877-1895’ (2006) 12 Media History 1. 107 against this backdrop that colonial publishing and the Australian public domain struggled to develop.
iv. LECTURES
Although lectures have not attracted as much attention from historical commentators as the books, artistic works and newspapers produced in the colonies, such public addresses played an important role at this time. It appears that it was the norm for a colonial newspaper to contain at least one advertisement for an upcoming lecture on any of a number of topics, including politics, religion, and history.
Subsequently, one of the more unusual topics (from a modern perspective) covered in the colonial copyright statutes concerned the protection of copyright in lectures, although such provisions were not unique to the colonies.86 Pursuant to section 31 of the Victorian statute the author of a lecture, or a person sold a copy of the lecture for the purposes of delivery, had the ‘sole right and liberty of printing and publishing such lecture or lectures’ where that lecture was first delivered in Victoria.87 From the statute it does not appear that the lecture needed to be ‘fixed’ in any way to gain protection. Where an individual took notes based on the lecture and published them without the permission of the author, the infringer would have to forfeit all prints and pay one penny for every infringing copy.88 Sections 32 and 33 further explained the nature of the lecturer’s copyright. Section 32 provided:
That any printer or publisher of any newspaper who shall without such leave as aforesaid print and publish in such newspaper any such lecture or lectures, shall be deemed and taken to be a person printing and publishing without leave within the provisions of the next immediately preceding section numbered thirty-one and liable to the aforesaid forfeitures and penalties in respect of such printing and publishing.
Section 33 stated that a person paying a fee to hear the lecture did not gain a licence or leave to ‘print copy or publish’ it because he or she paid that fee.
86 See Lectures Copyright Act 1835 (UK), 5 & 6 Wm IV, c 65. 87 See 33 Vict no 350 (Vic), s 31; 41 & 42 Vict no 95 (SA), s 30; 42 Vict no 20 (NSW), s 20; 54 Vict no 1076 (1890, Vic), s 32; 59 Vict no 24 (WA), s 30(1). 88 See 33 Vict no 350 (Vic), s 31; 41 & 42 Vict no 95 (SA), s 30; 42 Vict no 20 (NSW), s 20; 54 Vict no 1076 (1890, Vic), s 32; 59 Vict no 24 (WA), s 30(2). 108 Section 31 was one of the few sections directly referenced in the Victorian Hansard. On the passing of the 1869 Act it was opined by one member of the Legislative Assembly ‘that such a principle was not very well adapted to a colony like this. Could not a newspaper print even a report of a lecture without special authority to do so? If it were not a reliable report it would be of no value to the reader.’89 Another member stated in response that it would be simple for a newspaper to seek permission from the author,90 but the former comment raises an interesting question from a public domain perspective. Did lecture copyright operate so that not even a report of the lecture could be published without permission? Given that facts and ideas were and arguably still are an essential part of the public domain, the granting of lecture copyright appears to go against this basic principle.
This issue was considered in the 1878 UK parliamentary review into copyright and throughout the course of proceedings it became apparent that there was confusion as to whether lecture copyright extended to ideas presented in the lecture. From the outset of this discussion it was clear that the general position was that ideas and facts were not covered by proprietary rights.91 The point under examination was how far this extended in the case of lecture copyright and it appears from questioning of noted 19th century scholar Professor Thomas Huxley that lecture copyright was not intended to go so far:
5572. But you admit that even if you give a lecture to a limited audience, your ideas are thereby distributed? – [Huxley in response] I do not ask for any protection to ideas; it is the form of the thing which is mine. 5573. It is simply the matter of the form in which you embody your ideas, and it is for that that you claim protection? – [Huxley in response] Certainly.92
Thus, on the basis of these comments it is arguable that facts and ideas included in lectures were intended to remain non-proprietary and therefore as part of the public
89 Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869, 2115 (The Hon TT A’Beckett). According to Deazley the provision invoked the same reaction when it was introduced in the UK Parliament: see Ronan Deazley, ‘Commentary on Publication of Lectures Act 1835', in Lionel Bently and Martin Kretschmer, Primary Sources on Copyright (1450-1900) (2008)
v. CONCLUSION
From this discussion a number of conclusions can be drawn regarding the public domain, its nature and significance at this time.
First, as noted with respect to books, there was no exclusive right of dramatisation or translation at this time. Such aspects were therefore in the public domain. Although the public domain gained no significance with respect with the latter aspect, the lack of an exclusive right to dramatisation appears to have greatly benefitted the Australian public. Theatre-going was a popular colonial pastime and a variety of productions could be created and staged because the original works contained these public domain aspects. The public domain therefore gained some significance in this respect as it benefitted both Australian culture and, subsequently, the Australian public.
Second, in contrast, exclusive rights were granted in a number of instances to protect matter that is traditionally part of the public domain: facts, information, and ideas. A number of colonies introduced protection for telegrams and the intelligence contained therein; the significance of the public domain lay in the fact that traditionally such information is free, and this was at odds with the viable business model of colonial newspaper publishers. However, as this Section also illustrated, such statutory protection was technically not required, as it was established in a number of Victorian cases that the courts were willing to protect the exclusive proprietary right of the newspaper to publish such material.
In turn, a broadly-proscribed lecturing right was included in the colonial copyright statutes. Although the historical record is unclear, it is possible that the provisions accompanying this right denied the reuse of facts and ideas contained within that lecture. As such, the ‘facts and information’ category of the public domain may have lost much of its significance during this time.
110 B. TERMS OF PROTECTION
One of the most important issues in any discussion of copyright and public domain is the relevant term of protection that a statute granted a protected work. As noted in Chapter One, the expiration of copyright in a work is the most commonly-held view of how a work enters the public domain.93 Therefore, the duration of protection has the potential to be most illuminating on the state of a nation’s public domain and its significance.
i. BOOKS
One of the more consistent and least controversial aspects of the colonial copyright statutes concerned the term of copyright protection for books. Pursuant to section 14 of the Victorian statute, where a book was or had been first published in Victoria during the lifetime of the author, copyright subsisted for ‘the natural life of such author and for the further term of seven years commencing at the time of his death’. However, where that seven-year period expired before 42 years had elapsed, copyright would continue to subsist until 42 years since publication had passed.94 Where the book in question was published posthumously, copyright protection extended for 42 years from first publication.95 In both cases the terms of protection were identical with the period provided in the 1842 Literary Copyright Act.96
Divorced from the context of colonial publishing, these figures illustrate little about the public domain and if and why it mattered at this time. Nevertheless, when viewed against a popular form of book publication in the colonies – the ‘colonial edition’ – there is evidence to suggest that these limited periods led to a more vibrant reading culture. The colonial editions of one domestic publisher are particularly noteworthy: Petherick’s Collection of Favourite and Approved Authors. Established in 1889 by the namesake of the series, Edward Augustus Petherick and published in Melbourne by E A
93 See Chapter One Part II Section A(ii). 94 See 33 Vict no 350 (1869,Vic), s 14; 41 & 42 Vict no 95 (SA), s 13; 42 Vict no 20 (NSW), s 3; 54 Vict no 1076 (1890, Vic), s 15; 59 Vic no 24 (WA), s 5(1), (2). 95 See 33 Vict no 350 (1869,Vic), s 14; 41 & 42 Vict no 95 (SA), s 13; 42 Vict no 20 (NSW), s 3; 54 Vict no 1076 (1890, Vic), s 15; 59 Vict no 24 (WA), s 5(3). 96 See 5 & 6 Vict c 45 s 3. For a discussion on the introduction of these terms pursuant to the Literary Copyright Act in the UK – and the accompanying controversy – see Catherine Seville, Literary Copyright Reform in Early Victorian England (1999) ‘Appendix II: Successive Versions of the Bill’ 225-230. 111 Petherick & Co, the colonial series ran for four years before bankruptcy forced Petherick to sell his publishing business.97
In addition to the inclusion of ‘newer’ works, for example, Arthur Conan Doyle’s The White Company and Thomas Hardy’s Tess of the d’Urbervilles, a number of public domain titles were also part of Petherick’s Collection of Favourite and Approved Authors. Charles Dickens was a recurring author in the series, with Barnaby Rudge (1841, no 67) and The Pickwick Papers (1837, no 44) both appearing (among other Dickens titles), in addition to other public domain works including Sir Walter Scott’s Ivanhoe (1819, no 9) and Charlotte Brönte’s Jane Eyre (1847, no 17).98 In a quotation by the Argus newspaper that was extracted in an advertisement for the collection, the series was described as ‘well-printed, handy volumes of copyright literature.’99 However, it is clear that many of the works included in the series were in the public domain at the time of publication: Scott’s Ivanhoe, first published in 1819, providing an obvious example.
The Petherick Collection is therefore significant because it illustrates that local book publishers were producing editions of public domain books throughout the colonies. Yet what is interesting about these public domain publications is that each was written by an international, as opposed to a colonial, author. The question that arises is why this was the case: was it that colonial readers were mostly interested in overseas publications, or that few significant colonial works had entered the public domain by this time?
Although there is some value in the former reason, when the periods of protection for books and colonial life expectancies at this time are viewed together, it becomes apparent that many popular colonial books would not have entered the public domain by this time, both because of the time of publication and the general youth of popular authorship and publishing within the colonies.100 The fact that copyright under the
97 ‘Petherick, Edward Augustus (1847 - 1917)’, Australian Dictionary of Biography: Online Edition,
Copyright and public domain scholarship rarely considers the duration of copyright in books in light of life expectancies during a particular period.101 In a colonial context, this is significant given that two alternative terms of protection may apply. Of course, such an evaluation can only ever be an estimate: it cannot be said, across the board, that copyright would end for many works on a given date, or a specific year. Nevertheless, estimating how long copyright would have subsisted for, on the basis of life expectancies, gives an idea of how long it would have taken works produced by colonial authors to enter the public domain.
Table A is organised as follows. The first column, ‘Age at Creation’, gives the age of the author at the time that a hypothetical book was created. The second column identifies the sex of the author. The third column provides the additional expectation of years of life for an individual during the period 1881-1890, based on data from the Australian Bureau of Statistics, while the fourth column, ‘Year of Death Based on Earliest Date as Calculation’, provides the anticipated year that an individual would have died, based on the information in the third column. Finally, the fifth column states the term of copyright that would have applied to a book published in these circumstances, either life of the author plus seven years, or 42 years.
Patterson was first published by Angus & Robertson in 1895. See Jennifer M.E. Alison, Angus and Robertson as Publishers 1888-1900: A Business History (PhD Thesis, University of New South Wales, 1997) Appendix 3 ‘Angus and Robertson Publications 1888-1900 Listed By Subject/Genre’. 101 For example Bently considers the change in the duration of copyright from the Statute of Anne to the present day, under UK law. This is arguably the most in-depth analysis of these changes; however, there is no specific discussion of relevant life expectancies. See Bently (2008), above n 36, 64-89. 113 TABLE A: DURATION OF COPYRIGHT IN BOOKS PRODUCED BY MALES AND FEMALES IN LIGHT 102 OF LIFE EXPECTANCIES IN THE PERIOD 1881-1890
Age at Sex Expectation Year of Death Duration of Creation of Additional Based on Earliest Copyright Protection Years of Life Date as at that Age Calculation (1881) 15 Male 44.45 1925 Life of the author plus 7 years; for a total of 51.45 years protection 15 Female 47.54 1928 Life of the author plus 7 years; for a total of 54.54 years protection 25 Male 37.10 1918 Life of the author plus 7 years; for a total of 44.1 years protection 25 Female 39.67 1920 Life of the author plus 7 years; for a total of 46.67 years protection 35 Male 30.06 1911 42 years 35 Female 32.58 1913 42 years 45 Male 23.04 1904 42 years 45 Female 25.56 1906 42 years
A number of issues are evident from this Table. First, based on these calculations, there was approximately an equal division between the two terms of protection pursuant to section 14 and its colonial equivalents. Second, and arguably more significantly, it is important to note that copyright in the majority of works would technically expire after the introduction of the Copyright Act 1912 (Cth) and the life-plus-50 year term extension that statute introduced. There were three exceptions to this: works produced by 35-year-old males, and 45-year-old males and females. However, in all other cases, copyright would have expired after the introduction of the Copyright Act 1912 and the work would therefore be protected for a longer period of time. It is unfortunate that life expectancies were not recorded prior to 1881, to determine whether there was any difference for individuals born a decade earlier. Those individuals would have enjoyed
102 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.2: Life expectancy at single ages (ex), males, Australia, 1881 onwards’ and ‘Table 7.6 Life expectancy at single ages (ex), females, Australia, 1881 onwards’, 2008,
Further, when considering the relationship between terms of protection and the public domain, one additional area requires analysis: unpublished books. The relationship between the public domain and unpublished works is one of the recurring themes of this Thesis. As noted in Chapter Two, under the 1968 Act, copyright continues to subsist in unpublished works that remain unpublished.104 Copyright in these works is therefore perpetual. However, under the colonial copyright Acts, statutory copyright only subsisted once the first publication of the book in the relevant colony had occurred. For example, pursuant to section 14 of the 1869 Victorian legislation, copyright subsisted in books that either had been or would be published in the colony of Victoria. This was consistent with the position presented in the United Kingdom legislation.
On this basis it is arguable that, during the colonial period, unpublished books (and all types of creation captured by the section 2 definition) were in the public domain, given that there were no statutory provisions formally protecting unpublished books in the colonies at this time. However, it appears that common law copyright would have protected these unpublished books,105 removing them from the public domain and providing perpetual protection. A number of decisions of the latter part of the 19th century reflect the debate regarding how far common law copyright or property rights extended in the colonies, although the majority of this discussion concerned property rights in information.106 In the 1873 Rowcroft decision the plaintiff argued that
If a man wrote a work and did not publish it, would it be contended that anybody had the right to steal the manuscript and publish it ; and if he published it himself could any other person republish it? The principle of the common law was to recognise a general
103 I will discuss this issue in greater detail in Chapter Six below, but this discussion highlights why, in 1916, Marcus Clarke’s heirs were able to enforce an exclusive copyright that had not existed at Clarke’s death in 1881 – the right to dramatisation. See ‘“His Natural Life.”: Copyright of Drama’, The Argus, 16 June 1916, 5, available at
In its 1878 report the UK Copyright Commission also notes the existence of common law copyright for unpublished documents, at least in the United Kingdom.108 Further proof of its existence also provided in section 7 of the Copyright Act 1905:109
Subject to this and any other Acts of the Parliament, the Common Law of England relating to proprietary rights in unpublished literary compositions shall, after the commencement of this Act, apply throughout the Commonwealth.
I discussed this provision and the confused constitutional debate surrounding its introduction in Chapter Two.110 Under the 1905 Act statutory copyright began with first publication, consistent with the colonial copyright statutes and unpublished works were not subject to statutory protection.111 Although this provision was not technically required to enact UK common law protection for unpublished protection in Australia, it was included to avoid the new States legislating on this issue, thus causing inter- jurisdictional issues concerning enforcement.112 Its inclusion also confirms the intention of the Federal Parliament that the common law should protect unpublished works and thus it appears that common law copyright in unpublished books was thought to apply in the colonies.
Two conclusions regarding the state of unpublished works in a colonial context can be drawn from section 7. First, it suggests that this common law copyright protection remained in Australian law post-Federation. Second, section 7 also indicates that common law protection was limited to ‘unpublished literary compositions’. This appears to be a special category of copyright works that, as I illustrated earlier, remains today, although this protection has subsequently been codified.113 Therefore although
107 Mr Holroyd, in argument for the plaintiff: (1873) 4 AJR 57, 59. 108 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046), ‘Digest of the Law of Copyright’ by Sir James Stephen, Chapter I, Article I, lxv. 109 It was not until the Copyright Act 1911 (Imp), the Imperial British legislation incorporated into Australian law as part of the Copyright Act 1912 (Cth), that formal statutory protection for unpublished literary works was introduced: see, eg, Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49, 55. This will be discussed in greater detail in Chapter Five below. Common law copyright was also formally removed pursuant to section 31 of the 1911 Act. 110 See Chapter Two Part II Section C above. 111 Copyright Act 1905 (Cth) s 16(1). 112 See, eg, Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2159 (Senator JH Keating). 113 On that basis, I will suggest ‘unpublished works’ as a possible category for legislative reform in Appendix A. 116 the Australian public domain would have and still is affected by the existence of indefinite protection for unpublished literary works, by implication it also suggests that perpetual copyright never has and should not exist for published literary creations, since the inception of statutory copyright in Australia. Indeed, two of the titles of the colonial copyright legislation stated that copyright protection was ‘for a limited period.’114 What this means for the term of protection for books more generally is that the duration of statutory copyright has always ceased for published works and, further, this may be helpful for the constitutional arguments highlighted in Chapters Two and Three.
ii. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS AND PHOTOGRAPHS
A consideration of the terms of protection provided for artistic works under the colonial copyright statutes reveals an interesting mystery surrounding Australia’s public domain. Pursuant to section 36 of the Victorian Copyright Act 1869, copyright subsisted for the following terms: in the case of paintings, drawings, works of sculpture, engraving and the designs thereof, copyright protection extended for 14 years.115 Photographs and negatives were protected for a term of three years.116 This period commenced when the work was made in the relevant colony. Two issues arise here:
A. The significance of the terms of protection; and B. Whether any distinction was made between ‘published’ and ‘unpublished’ artistic works and the implications for the public domain based on such a distinction.
Turning to the first issue, the period of protection for the two categories of artistic works does not seem noteworthy until the periods granted are compared with the 1862 Fine Arts Copyright Act and other legislation upon which these provisions were based, as illustrated in the following table. The first column identifies the relevant artistic work; the second column states the term of protection as provided in the colonial
114 An Act to secure to Proprietors of Designs for Articles and Works of Manufacture and Arts, and to Proprietors of Works of Literature and Fine Art, the Copyright of such Designs and Works for a limited period 33 Vict no 350 (1869) (Vic); An Act to secure to Proprietors of Works of Literature and Fine Art and to Proprietors of Designs for Articles and Works of Manufacture and Art the Copyright of such Works and Designs for a limited period, 42 Vict no 20 (1879) (NSW). 115 See 33 Vict no 350 (1869, Vic), s 36; 41 & 42 Vict no 95 (SA), s 34; 42 Vict no 20 (NSW), s 25; 54 Vict no 1067 (1890, WA), s 37; 59 Vict no 24 (WA), s 35(1). 117 copyright statutes; and the third column illustrates the contrasting period of protection in the UK.
TABLE B: COMPARISON OF STATUTORY TERMS OF PROTECTION FOR VARIOUS ARTISTIC WORKS IN THE COLONIES AND THE UNITED KINGDOM
Type of Artistic Work Statutory Term of Statutory Term of Protected Protection in the Colonies in the United Kingdom Paintings 14 years Life + 7 years117 Drawings 14 years Life + 7 years118 119 Engravings 14 years 28 years Sculptures 14 years 14 + 14 years120 Photographs 3 years Life + 7 years121
Copyright in these artistic works therefore ran for a significantly shorter period in the colonies than for equivalent works made in the United Kingdom.
The question that arises is why the Victorian Parliament, the first legislature to introduce the 14-year and three-year lengths of protection, chose to deviate from the United Kingdom on the issue of the length of protection for paintings, drawings, photographs etc that were made in the colony of Victoria? There was some precedent for this reduced length in the English statutes, albeit solely in relation to engravings and sculptures and, as evident in Table B above, these periods had been modified by the introduction of the Victorian Copyright Act 1869.122
Parliamentary debate during the passing of the 1869 statute fails to shed light on this issue. The Attorney General, Mr. G. Paton Smith, stated at the second reading of the
116 See 33 Vict no 350 (1869, Vic), s 36; 41 & 42 Vict no 95 (SA), s 34; 42 Vict no 20 (NSW), s 25; 54 Vict no 1067 (1890, WA), s 37; 59 Vict no 24 (WA), s 35(1). 117 See Fine Arts Copyright Act 1862 25 & 26 Vict c 68, s 1. 118 See Fine Arts Copyright Act 1862 25 & 26 Vict c 68, s 1. 119 Originally, under the 1735 Act, copyright in engravings ran for 14 years from first publication. This was extended to 28 years under the 1766 Act. See 8 Geo II c 13 (1735), s 1; 7 Geo III c 38 (1766), s 6. 120 54 Geo III c 56 (1814), s 2 and 6. The addition 14 years was provided if the author was still alive at the expiration of the first 14-year period. 121 See Fine Arts Copyright Act 1862 25 & 26 Vict. c 68 s 1. 122 Pursuant to section 1 of the 1735 Engraving Copyright Act (UK), proprietary rights in engravings ran for 14 years: 3 Geo II c 13 (1735), s 1. However, by the 1766 Act, which preceded the 1869 Victorian Act by just over 100 years, this period had already been extended to 28 years: 7 Geo III c 38 (1766), s 7. In a similar vein, under the 1835 Sculptures Act (UK), a period of 14 years protection applied to sculptures. However, it was also provided that if the maker of the sculpture was still living after that 118 Copyright Protection Bill ‘that the period to which copyright in England extends is considerably reduced in this Bill, so that I don’t think the operation of the measure will affect injuriously the interests of the general community.’123 The way that this comment is phrased is particularly interesting: did the Attorney-General believe that this provision would not ‘affect injuriously’ the general community as authors, or the public more broadly? However, the context of this discussion makes it difficult to ascertain whether he was explicitly referring to the reduction in length of protection for artistic works. The issue was also not analysed in any subsequent commentary124 or case law125 or the 1878 British parliamentary review into copyright, beyond a general observation on the problems of having different periods of protection for works of fine art.126
Without any firm evidence, it is only possible to hypothesise as to why the Victorian Parliament reduced these terms of protections. Perhaps, at that time in the colonies, the cultural practices of painting, drawing and photography were not as developed as in the United Kingdom. The Victorian Parliament may have considered that these types of practices did not warrant the same length of protection as books.127 Yet many of Australia’s great artists were prolific during this period, including Frederick McCubbin, Tom Roberts, and Arthur Streeton, suggesting that artistic culture in Australia grew steadily in the latter part of the 19th century.
In the alternative, the Victorian Parliament perhaps believed that there was not as great a demand for these types of creations; or, given that such works were valuable aside from their copyright protection, artistic works did not justify as an extensive period of
initial period then copyright would extend for another 14 years, although there were exceptions to this rule: 54 Geo III c 56 (1814), s 6. 123 Victoria, Parliamentary Debates, Legislative Assembly, 31 August 1869, 1837 (Mr G. Paton Smith). 124 See Acland Giles, ‘Literary and Artistic Copyright in the Commonwealth – Part I’ (1905/1906) 3 Commonwealth Law Review 107, 112-113, where it was noted that the South Australian period of protection for these works differed from the UK term, although there was no analysis of why this was the case. 125 In In re Martin; Ex parte The Equitable Life Assurance Society of the USA (1884) 10 VLR (L) 196, 198, footnote a, Holroyd J noted that ‘[t]he copyright given by sec. 36 of “The Copyright Act 1869” lasts for a term of years, and not for the life of the author and seven years afterwards, as in England under se. 1 of 25 & 26 Vic. c. 68.’ (emphasis in original). 126 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046), [91]. 127 As Sturgeon notes, ‘[s]culptors have always fared badly in Australia, and no doubt will continue to be less well supported there than painters and printmakers.’ See Graeme Sturgeon, The Development of Australian Sculpture 1788-1975 (1978). Sturgeon’s comments are supported by the reduction of the term for sculptures, but fail to explain the concurrent reduction for all other types of art works, including those he believes were held in higher esteem. 119 protection as books. Such a proposition is in part illustrated by the fact that, although copyright subsisted in every artistic work that ‘shall be or shall have been made in’ Victoria, thus applying retrospectively, copyright did not subsist in works that had been sold prior to the commencement of the Act, discussed in greater detail below.128 The Parliament may have believed that such works had already been of financial benefit to the author, and subsequently copyright protection was not justified.
Another possibility is the ‘art-as-information’ theory. In a 1985 study of Australian landscape painting, Bonyhady suggests that colonial artists had two motivations when creating paintings of ‘wilderness subjects’: the expression of information about this subject through the artistic work.129 He argues that colonial artists ‘balanced their romantic vision of the landscape with a desire to produce useful documents regarding topography, objects of scientific interest and potential places of residence or tourism.’130 The Victorian Parliament may have believed that, by introducing a shorter period of protection, such works would enter the public domain sooner and the colonial government would therefore have a repository of artistic works that could be reproduced for educational, tourism, and development purposes. As Bonyhady further opines:
The success of paintings in informing city dwellers of the appearance of distant parts of the colonies was probably slight, due to the small size of the audience which viewed these works. Yet through the combination of paintings, prints and engraved newspaper illustrations, it seems clear that these artists helped to educate a wide cross-section of the colonists about the appearance of their new home. Critics in both Australia and England believed that colonial art could play a similar educative role for the English public, and it is likely that many Europeans based their ideas about the appearance of Australian scenery on paintings and prints rather than written or spoken descriptions.131
Such artistic works therefore held this additional informative and, consequently, commercial value.
Although the fact that the Victorian legislature shortened this period is interesting for the present purposes, it is frustrating that no specific policy was enunciated underpinning this decision. Had such a policy position been announced or adopted by the Victorian or subsequent colonial legislatures, it would have been possible to draw a
128 See Chapter Four Part II Section C(i) below. 129 Tim Bonyhady, Images in Opposition: Australian Landscape Painting 1801-1890 (1985) 87. 130 Ibid. 131 Ibid 95. See also Anne-Marie Willis, Picturing Australia: A History of Photography (1988) 74. 120 firm conclusion as to the significance of the public domain in this respect and why such changes needed to be adopted at this time. Unfortunately, as this Thesis illustrates in later Chapters, there has been a distinct lack in the formulation of policies – or the availability of evidence of any policies - underpinning decisions that are beneficial to the public domain. Both this and Chapters Five through Seven indicate that the colonial and federal parliaments did make positive legislative choices that affected the public domain. Yet on many occasions little explanation is given for this reason, or the basis is discussed in terms of the broader ‘public interest’, as opposed to the ‘public domain interest’. This will be explored again in later Chapters.
Further, the fact that these works entered the public domain earlier does not appear to have promoted the cultural significance of colonial artistic works or the public domain more generally. Although a number of artistic serials were in print during this time, there was not any distinct focus on public domain reproductions.132 The fact that such artistic works were in the public domain earlier also does not appear to have led to the publication of collections of such works to the benefit of the public: published collections featuring reproductions of the works of individual Australian artists did not appear until the early 20th century.133 Although the artistic works featured in these early volumes would have been in the public domain by this point, these anthologies appeared to be with the permission of the author.134
Indeed, it is questionable whether colonial artists and publishers even knew of this limited term. For example, two editions of the Angus & Robertson’s Geography of New South Wales contain the same photograph of a statue of Captain Cook in Hyde Park,
132 See generally Leigh Astbury, ‘Art Publishing’ in Martyn Lyons and John Arnold (eds) A History of the Book in Australia 1891-1945: A National Culture in a Colonised Market (2001) 314-322. 133 Ibid 316. As Astbury notes, ‘[f]ine art publishing emerged with a flourish in 1916….More momentous was the publication in 1916 by Lothian of two deluxe, folio-sized books, The Art of Frederick McCubbin and Elves and Fairies by Ida Rentoul Outhwaite…Lavishly produced, with numerous tipped-in colour plates, these were not only important as art books but were major achievements in the history of fine book publishing in Australia.’ See also Robert Holden, ‘Painting, Publishing and Propaganda in 1916: the Genesis of the Australian Art Press’ in James S MacDonald, The Art of F. McCubbin (first published 1916, Boolarong ed, 1986): The Lothian-McCubbin publication is quite rightly regarded as Australia’s first significant art monograph and 1916 is usually seen as the germinal year from which to date the steady growth of an Australian art press. It is true that there had been some earlier attempts at issuing finely produced art books, although their sporadic appearance marked them out as isolated curiosities rather than mainstream achievements. 134 See, eg, James S MacDonald, The Art of F. McCubbin (first published 1916, Boolarong ed, 1986). This collection of McCubbin’s works was published with his permission, illustrated by the fact that McCubbin himself contributed an essay on Australia and art to the collection. 121 Sydney, with the words ‘Copyright Photo’ below. These editions were published in 1898 and 1902 respectively and during the elapsed period that work would have technically entered the public domain.135 Therefore, in addition to these periods of protection being a peculiar change of the law, it does not appear that the public domain gained any additional significance from these artistic works entering this space at an earlier time.
The second issue concerns the possible distinction between published and unpublished artistic works. A reading of the relevant colonial provisions suggests that such a distinction was not possible as the category of ‘unpublished’ artistic works did not exist, consistent with the position presented in the 1862 Fine Arts Copyright Act.136 For example, pursuant to section 36 of the 1869 Victorian Act
That the author, being a British subject or resident in Victoria, of every new and original painting drawing work of sculpture engraving and photograph which shall be or shall have been made in the colony of Victoria, and shall not have been sold or disposed of before the commencement of this Act, and his assigns shall have the sole and exclusive right of copying photographing engraving reproducing and multiplying such painting [etc]…. 137
Statutory copyright in artistic works in the colonies thus subsisted when the work was made.138 It did not matter whether the work was further shown to the public; as soon as it was made it was entitled to the relevant period of either 14 or three years of copyright protection, albeit only in the colony of creation. This position was repeated in the 1905 Act,139 although the 1912 Act, by virtue of the 1911 Imperial copyright statute, incorporated a more complex definition of ‘publication’ that applied to all types of works protected under that Act.140 Thus, from this analysis it appears that common law copyright could not have subsisted in these works, given that statutory copyright commenced at creation, rather than publication.
Subsequent commentary reveals, however, that the situation may have been more complicated and that common law copyright, or a similar proprietary-style right, may
135 Cf J M Taylor, Geography of New South Wales (1898) with J M Taylor, Geography of New South Wales (3rd ed, 1902). 136 See 25 & 26 Vict c 68, s 1. 137 Emphasis added. See also 41 & 42 Vict no 95 (SA), s 34; 42 Vict no 20 (NSW), s 25; 54 Vict no 1076 (1890, Vic), s 37; 59 Vict no 24 (WA), s 35(1). 138 See Fishburn Brothers v Adelaide Cyclorama Co Ltd (1892) 25 SALR 20, 28. 139 Copyright Act 1905 (Cth) s 35. 122 have subsisted in artistic works created in the colonies. In the 1878 UK parliamentary review into copyright it was stated that copyright at common law did exist in unpublished documents and works of art, where these continued to be unpublished.141 This position was supported by an Australian commentator in 1905, discussing the new Commonwealth copyright legislation and the need for reform of the existing model. Giles argues that ‘apart from statute, the owner of a work of fine art has what may be called a common law copyright, a right before publication to prevent any copyright being made of it’.142 However, Giles also insists this right ceased upon publication, though he recognised that there was confusion as to when that precisely occurred.143 It may be that the right Giles refers to was actually more akin to, for example, breach of confidence, should an artistic work have been revealed before the artist believed it to be ready.
It appears that there was (and arguably still is) confusion as to whether common law copyright existed in artistic works in the colonies. The commentary above by Giles suggests that it did, however, it is important to note that these comments were made in relation to UK law, rather than explicitly relating to the colonies.
At the very least it can be said that once an artistic work was created, statutory copyright attached to the work that then expired after 14 years. However, the best view is that if that work remained unpublished, it would never have entered the Australian public domain.
iii. TELEGRAMS
While terms of protection were selected for books and artistic works with little discussion, the duration of protection for telegrams was a contested issue. For example, when the Telegraphic Messages Copyright Bill first came before the Victorian Legislative Assembly in late 1871, the original period of protection proposed was for 48
140 Copyright Act 1912 (Cth) The Schedule s (1) and (2). See Chapter Six Part II Section B(ii) below. 141 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046), ‘A Digest of the Law of Copyright’ by Sir James Stephen, Chapter 1, Article 1, lxv; cf Fishburn Brothers v Adelaide Cyclorama Co Ltd (1892) 25 SALR 20, 25. 142 Giles, above n 124, 107. 143 Ibid 108. 123 hours from first publication.144 This period was eventually reduced to 24 hours, with many parliamentarians believing that limited term, combined with a limited period of application (until the end of 1872) made the Bill more acceptable.145 In addition, one further amendment was suggested, which was also adopted in the subsequent South Australian and West Australian statutes: that publication of the telegram must occur within a certain time of receipt of the message.146 The following periods, detailed in the Table below, were therefore adopted in each of the relevant colonies.
TABLE C: LENGTH OF PROTECTION FOR TELEGRAMS FROM RECEIPT OF MESSAGE AND PUBLICATION, BY JURISDICTION
Statute Protection from Publication Period Specified for when Publication had to occur by Victoria, 1871 24 hours 36 hours (except Sundays) (s 1) (s 1) South Australia, 24 hours 36 hours (except Sundays) 1872 (s 1) (s 1) Western Australia, 72 hours 80 hours 1872 (s 1) (s 1) Tasmania, 1891 48 hours No period specified (s 3) Western Australia, 72 hours No period specified 1895 (s 20(1)) For morning papers: publication deemed to be 7am For evening papers: publication deemed to be 2pm
From Table C it is evident that the most limited terms of protection were given in Victoria and South Australia, where newspaper publishers had only 24 hours protection from publication, but such publication had to occur within 36 hours from receipt. These two colonies, therefore, provided the least extensive protection, when viewed from a public domain perspective: the information contained in the telegram was only out of the public domain for 36 hours at the most. The 1872 West Australian provisions followed, with three days worth of protection from publication, but such publication
144 Victoria, Legislative Assembly, Parliamentary Debates, 16 November 1871, 1872 (Mr Duffy). 145 Victoria, Legislative Assembly, Parliamentary Debates, 21 November 1871, 1887-1889. Just prior to the passing of the Bill, Mr W.C. Smith attempted to get the 24 hour period further reduced to six hours, though this was ultimately rejected. See Victoria, Legislative Assembly, Parliamentary Debates, 21 November 1871, 1890. 146 Victoria, Legislative Assembly, Parliamentary Debates, 21 November 1871, 1889 (Mr Vale). 124 technically had to occur within six hours of receipt, in order to receive the full 72 hours protection available under section 1.
For the present purposes, it is clear from Table B that the most extensive protection was granted by the 1891 Tasmanian and 1895 West Australian statutes. In the former case, while only 48 hours protection was granted once publication of that information had occurred, no period was specified compelling a Tasmanian newspaper to publish that intelligence once it had been received.147 Although it is possible that commercial considerations would have compelled a newspaper to print the telegram as soon as possible – the whole benefit conferred by the statute was an exclusive right to print such information – in theory, a newspaper could have waited for whatever time it deemed appropriate before it published that intelligence.
The latter case is more difficult to interpret. While the 1895 West Australian statute specified that the message would be protected for 72 hours from first publication, it did not dictate that the message had to be published within a certain timeframe from receipt. Indeed, in a description accompanying section 20(1) of the 1895 Act it is noted that ‘Messages by electric telegraph not to be published during three days after receipt without consent of the receiver’. However, the wording of section 20(1) contradicts this annotation, explicitly stating that the 72 hour protection period runs from the first publication of the message in a newspaper. This is in distinct contrast to the previous West Australian telegram statute, where an 80 hour window for publication from receipt was dictated. Yet the statute also failed to stipulate that copyright subsisted in the telegram prior to publication, raising this question: was the telegram in the public domain prior to publication? However, given that only a specific West Australian newspaper may have had access to that telegram, this issue may have been only theoretical.
147 Section 3 of the 1891 Tasmania statute also confirmed that the newspaper had copyright in the message prior to publication, as it was stated that where a person ‘not having any previous copyright in such matter before its publication in the newspaper in which it first appeared’ fell foul of this provision if the telegram was republished. See 55 Vict no 49, s 3. 125 iv. LECTURES
While the terms of protection for books, artistic works and telegrams were all carefully defined – whatever the reason for the choice of term – it appears that there was an oversight with the length of protection for lectures. None of the colonial copyright statutes stated a term of protection for lectures. Such an oversight was not limited to Australia: the UK Lectures Copyright Act also failed to state a term of protection. The UK parliamentary review into copyright notes that ‘[t]he term of copyright in a lecture not printed and published but publicly delivered is wholly uncertain. The term of copyright in a lecture printed and published is the longer of the two periods of 28 years and the life of the author’,148 though it did not state the basis for that proposition. The latter was also not included in the colonial statutes.
It is unfortunate that such rigorous rights, as detailed in Section A(iv) above, were included in the colonial copyright statutes with no accompanying term. It may be that, as no period was specified, the right was intended to be perpetual. However, given that section 34 of the Victorian statute referred to the publishing of lectures ‘whereof the time hath or shall have expired within which the sole right to print and publish the same is given by the Act’, copyright in lectures must have expired at some point.149 Nevertheless, when this occurred remains a mystery. From a public domain perspective, this is interesting as the statutes provided such stringent rights and yet failed to stipulate a term of protection. Given that it was unclear whether the lecturing right also protected the ideas in the lecture, this had the potential to limit the capacity of the public domain at this time.
v. CONCLUSION
Several conclusions emerge from the preceding discussion on the nature and significance of Australia’s public domain during this period.
First, the statutory terms of protection for books in the colonies remained the same as under the 1842 Literary Copyright Act: life of the author plus seven years, or 42 years,
148 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046) [10]. 149 I discuss section 34 in greater detail below: see Section C(ii). 126 whichever period was longer. The significance of the public domain at this time lay in the ability of publishers to reprint public domain works and sell them cheaply, for a colonial market. Yet the majority of such publications at this time were UK texts; given life expectancies, the time of publication and the application of retrospective copyright, many Australian texts had not yet entered the public domain during this period. This is a theme that will be developed to a greater extent in subsequent Chapters.
Second, in contrast, the Victorian legislature drastically reduced the applicable period of protection for paintings, drawings, engravings, sculptures and photographs. The reason for this remains unclear: frustratingly, no explanation was given by the Victorian legislature and it was a development that was subsequently adopted by every other colonial legislature that enacted a copyright statute without reason. Such a change was significant for the public domain: these artistic works would enter the public domain sooner than their overseas counterparts. Unfortunately, this change reveals nothing of the significance of the public domain, or why it mattered at this time.
Third, although the periods of protection provided for telegrams and the intelligence contained therein were not extensive, the fact that such information was kept out of copyright’s public domain, and was the exclusive domain of a singular publisher or newspaper, affected the significance of the public domain at this time. Further, in two instances – Tasmania and Western Australia – protection was granted to these telegrams so long as the telegram remained unpublished.
Fourth, despite the possible ramifications for the public domain caused by the lecturing right, no period of protection was specified for lectures. Of all the terms of protection, this lack of a specified duration of copyright arguably had the most significant impact on the public domain, particularly given that ideas from such lectures could not be reproduced without the permission of the lecturer.
Fifth, the lack of a statutory-based duration of protection did not mean that unpublished works were unprotected. In the case of books, artistic works and telegrams, common law copyright appeared to protect such works prior to publication and statutory copyright subsistence and the specified duration of protection. As later Chapters will
127 illustrate, the existence of this doctrine in the colonies essentially planted the seed of perpetual copyright for unpublished works.
C. ADDITIONAL PUBLIC DOMAIN FEATURES
In addition to the above categories – the rights granted and the term of protection – the treatment of a number of additional issues by the colonial copyright statute provide further evidence on the treatment, nature and significance of the public domain at this time.
i. PAINTINGS, DRAWINGS, WORKS OF SCULPTURE, ENGRAVINGS AND PHOTOGRAPHS
In addition to the points raised in Sections A and B above, colonial copyright in artistic works also raised a number of additional issues relevant to a public domain discussion. The first relates to section 37 of the 1869 Victorian Act (and its equivalents), where it was stated:
That nothing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object notwithstanding that there may be copyright in some representation of such scene or object.150
This provision therefore concerned two public domain aspects:
A. The copying of works in which there was no copyright; and B. that the law did not prohibit a person from representing any scene or object where there was a previous representation that was protected by copyright.
In the first instance – that ‘nothing herein contained shall prejudice the right of any person to copy or use any work in which there is no copyright’ – I interpret this part as reinforcing the position that artistic works that were not entitled to copyright under the Act could be freely reproduced and imitated. Section 36 of the 1869 Acts (and again the equivalent provisions) stated that the operation of that provision did not extend to artistic works that had been either sold or ‘disposed of’ prior to the commencement of the Act. I therefore interpret this first part of section 37 to mean that this section did not
150 See 33 Vict no 350 (1869, Vic), s 37; 41 & 42 Vict no 95 (SA), s 35; 42 Vict, no 20 (NSW) s 26; 54 Vict no 1067 (1890, Vic), s 38; 59 Vict no 24 (WA), s 36. 128 preclude individuals from copying works that had been previously sold and thus were not entitled to protection.
For example, in 1856 Artist A created a painting of a number of prominent colonial figures, including Sir B, standing in front of the then-new Melbourne Public Library. A few years later Artist A sold this painting to Sir B. In 1870, Sir B decides to have Artist C create a new and identical version of the painting, believing that he lacked grandeur in Artist A’s version. Artist A could have no recourse against Sir B, as Artist A had sold the painting prior to the passing of the 1869 Victorian Act. On that basis, I believe that such works were technically a part of the public domain.
The second part of section 37 is arguably clearer. It provided that the rights of a person ‘to represent any scene or object notwithstanding that there may be copyright in some representation of such scene or object’ remained unprejudiced. The effect of this section was that a person could not stop another from creating the same picture based on the same scene or object.
The following hypothetical illustrates this construction: In 1885 Artist A created a painting of the landscape of part of the Great Dividing Range. The copyright in this painting was registered pursuant to the requirements of the 1869 Victorian Act. Artist B then went to the same part of the Great Dividing Range and also creates the same painting. Artist B has not infringed the copyright of Artist A because under section 37 Artist B was not precluded from representing the same scene simply on the basis that Artist A had represented that scene earlier and received copyright protection for his creation.
It is interesting that this position was formally enunciated through statute: it is difficult to envisage the need to include a provision in copyright legislation explicitly stating that an individual is not precluded from also creating a representation of a scene simply because another individual has previously done so. Therefore, this provision is noteworthy from a public domain perspective in both form and substance. The fact that a provision of this nature was included in the colonial copyright statutes – albeit it did
129 emanate from the 1862 Fine Arts Copyright Act151 – may indicate a recognition of the need to highlight the limits of copyright law and, by implication, reinforce the position of the public domain. There may be other reasons: for example, it could be a reflection on the nature of photographic technology or the mechanics of photography at this time. In contrast to the lecture copyright provisions that I discussed earlier, which was not included in the South Australian statute, a provision that was substantially identical to section 37 was included in the five substantive colonial copyright statutes.
In terms of the substance of this section, it is significant because it reinforces two points on the public domain: first, that there would be works in which no copyright would subsist under the Act; and second, that an individual could not use copyright to stop another from creating a work based on the same scene or object. Indeed, it appears that colonial photographers, for example, had to resort to other means to protect and promote their creations. In 1870 (albeit nine years before the NSW Copyright Act was passed) rival photographers published advertisements in the Sydney Morning Herald regarding the photography of the whole of the city of Sydney.152 On hearing that the American and Australasian Photographic Company (‘A&APC’) was intending to photograph Sydney, B.C. Boake published a notice in the Herald to the effect that he had already undertaken such an action with respect to Sydney’s main street, George Street.153 The A&APC claimed that ‘several photographers in Sydney have commenced to pirate the Company’s idea of photographing Sydney.’154 As there was no legal way to stop companies from documenting the growth of the city, photographers appear to have resorted to public slurs to dissuade rivals from continuing. In Victoria the Copyright Act 1869 already provided that copyright could not be used for such purposes; in 1879 the NSW Copyright Act adopted the same position. This public domain doctrine subsequently challenged the viability and creativity of colonial rivals.
ii. LECTURES
The provisions regarding lecture copyright are significant from a public domain perspective for two additional reasons.
151 25 & 26 Vict c 68 (1862), s 2. 152 See ‘Public Notice’, The Sydney Morning Herald, 21 September 1870 in Alan Davies and Peter Stanbury, The Mechanical Eye in Australia: Photography 1841-1900 (1985) 199. 153 Ibid. 154 Ibid. 130
First, pursuant to section 34 of the 1869 Act (and its equivalent in the other colonial statutes, with the exception of South Australia) sections 31, 32 and 33 did not
extend to prohibit any person from printing copying and publishing any lecture or lectures which have or shall have been printed and published with leave of the authors thereof or their assigns, and whereof the time hath or shall have expired within which the sole right to print and publish the same is given by the Act….
This provision is not unique to colonial law: it emanated from section 4 of the 1835 UK Lectures Copyright Act. Yet, it is significant for the present discussion for two reasons. First, it explicitly recognised that copyright expired and that individuals could exercise the rights of the copyright owner after the term of copyright had ended. This reference, and its identical counterparts in the other colonial copyright statutes,155 constitutes one of the few explicit references to the finite duration of copyright to appear in an Australian copyright statute. It also constitutes, by implication, a reference to the notion of a public domain. Of course, given that the colonial statutes did not enunciate any length of protection for lectures, it arguably failed to achieve its intended purpose.
Second, this reference to the expiration of copyright is also significant given the discussion in Chapter Two, where I evaluated whether the ‘public domain’ could be considered as part of the term ‘copyrights’ as it appears in section 51(xviii) of the Australian Constitution.156 This colonial reference arguably indicates again that the idea of expiration of copyright was contemplated as part of this term ‘copyrights’.
The other relevant provision was in section 35, where it was stated in part that sections 31 through 33 did not extend to any lecture/s ‘delivered in any university public school or college, or on any public foundation or by any individual by virtue of or according to any gift endowment or foundation.’ The wording of the 1869 Victorian provision is difficult to interpret, but it is clear from the equivalent West Australian section that it
155 As noted above, an equivalent provision was not included in The Copyright Act 1878 (SA). It is unclear why this provision was removed, particularly as the South Australian Act followed the 1869 Victorian copyright statutes in many aspects, and this provision was also included in the UK Lectures Copyright Act. 156 See Chapter Two Part II Section B above. 131 meant lecture/s of the nominated type did not receive any copyright protection157 and immediately entered the public domain.158 This provision also emanated from section 4 of the 1835 Lectures Copyright Act and is reminiscent of the fair dealing provisions of today: reproduction of lectures given in an educational context should not be restricted. The endowing of these lectures to the public domain is, however, arguably more substantial than any modern fair dealing exception and the inclusion of such a provision is recognition of the importance of such lectures to the ‘public’.159
iii. CONCLUSION
Two quite significant issues are apparent from the numerous areas considered in this Section.
First, the additional provisions with respect to artistic works and lectures indicate that any determination of the nature of the public domain should not focus solely on the rights granted or the term of provisions. These additional provisions illustrate that the colonial legislatures, albeit influenced by the previous UK statutes on these issues, were willing to enact provisions that specifically dealt with works once copyright protection expired. Thus, the public domain arguably does not fit into discrete categories of the leftovers of the ‘rights granted’ or the ‘term of copyright’; indeed, in determining the significance of the public domain at this time, these provisions are of arguably greater importance.
This is illustrated by the second conclusion: both provisions referenced the concept of ‘no copyright’ and the ‘expiration of copyright’. Of all the provisions discussed in this Chapter, these are the most positive references to the concept of the ‘public domain’. Although, more generally, there may not have been widespread adoption of publication or reproduction of public domain books, lectures or artistic works, these references give some indication on the broader significance of the public domain at this time – that such
157 A point noted by the UK Copyright Commission in its 1878 report: see Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046) [83]. 158 59 Vict no 24 (WA), s 34(2). 159 In a UK context, Deazley comments that part of the reason the Lectures Copyright Act ‘is of interest [is because] of the distinction it draws between lectures delivered within the “public” and the “private” spheres (lectures delivered at a University, for example, are not protected)’, though, ultimately it was not used a great deal in practice. See Deazley (2008) above n 89. 132 works could be reproduced – and that the law should not inhibit such practices. In retrospect, the practicability of these provisions could have been enhanced through stronger practices of the legislature: I believe that clarification on these sections may have revealed some significance of these provisions for the public domain. However, the setting of a term of protection for lectures would also have enhanced the effectiveness of this provision, converting it from a theoretical to a practical effect.
III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1905
Chapter Four has revealed a number of issues regarding the public domain under the first copyright laws passed in the colonies of Australia. The picture presented in this Chapter illustrates that the public domain cannot always be divided into simple categories of what is left over after rights are granted, or the term of copyright has been set. There are greater legal, political, and social dynamics at work. The public domain in the colonies was shaped and affected by different laws and legislative and judicial decisions, many of which had the potential to and did affect the public domain and its significance at this time.
Nevertheless, this Chapter has also revealed a number of interesting conclusions regarding the significance of the public domain during this time. The fact that the author of a copyright work was not entitled to an exclusive right of dramatisation led to a broader range of theatrical productions in the colonies, as multiple playwrights would interpret and adapt the same story. The colonial public was arguably therefore exposed to more vibrant cultural developments. Colonial publishers would republish books in which the copyright had expired, and sell such reprints cheaply to the benefit of the broader reading public, although during this time the focus was on international as opposed to national publications. However, there were instances where, although it was apparent the public domain should have been of some significance, it was difficult to determine what that significance was. The most striking example of this was the reduction of copyright for paintings, drawings, sculptures and engravings to fourteen years, and photographs to three years. Something inspired the Victorian legislature to make this change, but in the absence of any reason or underlying policy, or the fact that the change appeared to be of little consequence to the broader colonial public, it is
133 difficult to determine the significance of the public domain in this case. Subsequent colonial legislatures adopted this change, again without any reason.
Importantly, only five years after the Western Australia legislature adopted this change in its Copyright Act 1895, Federation arrived in Australia in 1900, uniting the public domain. How the public domain was translated into Australia’s federal copyright statute, the Copyright Act 1905, is the focus of Chapter Five.
134 CHAPTER FIVE
POST-FEDERATION COPYRIGHT AND THE PUBLIC DOMAIN
I. INTRODUCTION: POST-FEDERATION COPYRIGHT IN AUSTRALIA
A recurring theme throughout both this Thesis and copyright literature more generally is the notion of the ‘public interest’ in copyright law. Such a concept has been attributed with various meanings: on the one hand, the ‘public interest’ may refer to the public as a beneficiary of copyright law, due the dissemination of information in works that are protected under copyright.1 The public interest in this case is fulfilled by private rights being granted. On the other hand, and more often than the first instance, the ‘public interest’ is used interchangeably with the terms public domain and public rights: features or functions of the law of copyright that permit members of the public, or certain privileged members as provided by law, to engage in specified practices.2 The public interest and the public domain, or the public interest and public rights, are viewed as being one and the same, with no distinction made between these concepts.3
In Chapter Four, the public interest was alluded to in certain instances, but the distinct lack of legislative policy or judicial reasoning underpinning the colonial copyright statutes meant that the concept of the public interest was never developed. However, even a cursory reading of the Copyright Act 1905 and the parliamentary debates surrounding the introduction of that Federal copyright statute indicates that reference was made to the public interest in the development of that law in a number of, at times
1 See, eg, Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Chairman Sir John Spicer), Report of the Committee appointed by the Attorney- General to consider what alterations are desirable in the copyright law of the Commonwealth (1959) [13] (‘In arriving at our recommendations our task has essentially been one of balancing the interests of the copyright owner with those of copyright users and the general public. The primary end of the law on this subject is to give to the author of a creative work his just reward for the benefit he has bestowed on the community’) (hereafter ‘The Spicer Committee’). 2 See, eg, Peter A Jaszi, ‘Goodbye to All That – A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law’ (1996) 29 Vanderbilt Journal of Transnational Law 595; The Hon Sir Anthony Mason, ‘Public-interest objectives and the law of copyright’ (1998) 9(1) Journal of Law and Information Science 7-21; Benedict Atkinson, The True History of Copyright: The Australian Experience 1905 – 2005 (2007) 433. 3 Kathy Bowrey, ‘Can a Public-Minded Copyright Deliver A More Democratic Internet?’ (2007) 56 University of New Brunswick Law Journal 26; Gillian Davies, ‘The public interest in the public domain’ in Charlotte Waelde and Hector MacQueen (eds) Intellectual Property: The Many Faces of the Public Domain (2007) 86, 96. 135 conflicting, ways. Four significant themes emerge from the parliamentary debate with respect to the new copyright law: private interests, the public interest, public rights, and the public domain. However, what is particularly significant for the purposes of the present discussion is that that the public interest, public rights, and public domain interests do not always correspond. For example, a decision that was made specifically because parliamentarians believed such a change or provision was in the ‘public interest’ did not always benefit the Australian public domain. While there is limited literature on the Copyright Act 1905,4 both the statute itself and these public aspects require examination here if Australia’s public domain is to be investigated under the Copyright Act 1905. Therefore, this Chapter considers:
A. The rights granted; B. The terms of protection; and C. Additional public domain features.
In the first two instances, three categories of creation that were analysed under the colonial copyright statutes earlier will be considered; books, artistic works, and lectures.5 One notable omission is telegraphic copyright. Although many parliamentarians lobbied for the inclusion of a provision granting copyright in telegrams, the ongoing controversy surrounding both the scope and effect of the proposed section led to its removal prior to the passing of the Act.6 Further, although,
4 Atkinson provides the most detailed examination to date: see Atkinson, above n 2, 13-42. See also James Lahore, Intellectual Property Law in Australia: Copyright (1977) [229]-[234]; Staniforth Ricketson, The Law of Intellectual Property (1984) [4.54]-[4.61]. 5 See Chapter Four Part II above. 6 The Copyright Bill 1905 (Cth), as introduced into the Federal Parliament, contained a section regulating the provision of news information. The proposed section 33(1) read: The proprietor of any newspaper of news agency, who has obtained specially and independently news of any fact or event which has taken place beyond the limits of Australia, shall, as against all persons who have not obtained the news in the same manner, be entitled for the space of twenty-four hours immediately succeeding its publication to the exclusive right of publishing that news. Section 33 was repeatedly referred to throughout discussion on the Copyright Bill, with Senator Keating noting that ‘[w]e should, and do, give protection to all newspaper proprietors, whether they are members of a combination or individuals who acquire independent news from outside the limits of Australia. Such news is given twenty-four hours copyright’: Commonwealth of Australia, Parliamentary Debates, Senate, 12 October 1905, 3470 (Senator John Keating). The majority of senators supported section 33 at first, with early discussion on this provision focussed on whether the period of 24 hours was too short: see Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2920-2921. Yet discussion soon turned to the monopolistic effects that such a provision could cause amongst the press in the growing Commonwealth. It was ultimately removed but in 1906 a new Bill was introduced, featuring provisions similar in substance to section 33: see 136 the colonial copyright statutes were not repealed under the Federal law and thus continued to apply, there will be no further consideration of these statutes, except where relevant to the discussion at hand.
Finally, there is virtually no discussion of case law in this Chapter. This is because there were no reported cases concerning the provisions of the Copyright Act 1905. Indeed, during the passing of the subsequent Copyright Act 1912 (Cth), Senator Keating, responsible for the bulk of the drafting of the 1905 Act, stated with some pride that:
If one takes the trouble to look through the digest of the Commonwealth Law Reports in connexion with the copyright law of Australia, it will be found that very few cases have arisen under it [the 1905 Act]. The language of the law is perfectly clear. It is lucid. It has been acted upon. There has been no difficulty.7
Such a statement is difficult to believe given that many of the provisions of the Copyright Act 1905 were pulled together from a number of different sources, including the Berne Convention,8 which by 1905 had already undergone its first revision, and two English Bills introduced into the House of Commons and House of Lords in 1900, aimed separately at consolidating the existing laws on literary and artistic copyright respectively.9 However, Senator Keating’s belief concerning the clarity of the language of the Copyright Act 1905 is arguably correct, though this Chapter reveals that its provisions were not without debate and, in some instances, controversy.
Copyright Bill 1906 (Cth). This Bill was never passed. Thus the ‘entirely new experiment’ came to an end and information that would previously have come under this category would have been in the public domain. 7 Commonwealth of Australia, Parliamentary Debates, Senate, 23 October 1912, 4512 (Senator John Keating). But see the later case of Finn v Pugliese (1918) 18 SR (NSW) 531. 8 Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9 1886 and Additional Act Amendment Articles 2,3,5,7,12, and 20, of the Convention of September 9, 1886, and Numbers 1 and 4 of the Final Protocol Indexed Thereto of May 4, 1896. 9 Copyright Bill (House of Commons, no 295, vol 1, 1900) to amend and consolidate the Law relating to Literary Copyright; 1900 Copyright (Artistic Bill) (House of Lords, Bill 192, vol 4, 1900) to amend and consolidate the Law relating to Artistic Copyright in Artistic Works. Further inspiration came from the Report of the Royal Commission of Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046), discussed in Chapter Four above, and The Copyright Act 1886, c 62 (Canada). The influence of these different laws is noted in memorandums circulated in the Australian Senate and House of Representatives at the time of introduction of the Bill: see National Archives of Australia: Attorney-General's Department; A2863; 1905/25, ‘Copyright Act 1905’; 1905- 1906; The Senate, Copyright Bill, Memorandum of References to Similar Provisions in Acts and Bills, circulated by Senator Keating. Burrell makes a similar point: see Robert Burrell, ‘Copyright Reform in the Early Twentieth Century: The View from Australia’ (2006) 27 Journal of Legal History 239, 249. 137 II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACT 1905
A. THE RIGHTS GRANTED
i. BOOKS
Pursuant to section 4, the interpretation provision of the 1905 Act, a ‘book’ was defined to include
any book or volume, and any part or division of a book or volume, any article in a book or volume, and any pamphlet, periodical, sheet of letterpress, sheet of letterpress, sheet of music, map, chart, diagram, or plan separately published, and any illustration therein[.]
This definition was similar to that provided in the colonial copyright statutes, although a notable addition was the term ‘periodical’: that term was further defined in section 4 to ‘mean a review, magazine, newspaper, or other periodical work of a like nature’. This definition removed newspapers and magazines as a separate category and added these works under the category of books.10 The term ‘book’ also encompassed some artistic and musical creations: for example, maps, charts and diagrams were all included.
In contrast to the broadly-prescribed rights contained in the colonial copyright statutes, the 1905 Act granted the owner of the copyright in a book an exhaustive, albeit quite extensive, list of exclusive rights. Pursuant to section 13(1), copyright in a book gave the owner the following exclusive rights:
(a) To make copies of it : (b) To abridge it : (c) To translate it : (d) In the case of a dramatic work, to convert it into a novel or other non- dramatic work: (e) In the case of a novel or other non-dramatic work, to convert it into a dramatic work: (f) In the case of a musical work, to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it, in any notation.
Under section 13(2), copyright subsisted in any book, regardless of whether the author was a British subject or not, which had been published in Australia ‘before or
10 Cf 5 & 6 Vict c 45 s 2. 138 simultaneously with its first publication elsewhere.’11 Statutory copyright protection in a book commenced with its first publication.12
When compared to the equivalent colonial provisions, the expansion of statutory copyright is clear: the 1905 Act codified the rights of abridgment, dramatisation, and translation. As noted at several points throughout this Thesis, such rights were absent from the colonial statutes. For example, in the 1886 decision of Weekes v Williamson13 no consideration was given as to whether Marcus Clarke’s right of dramatisation had been infringed as such a right did not exist at that time.14 It was noted in discussion in the Federal House of Representatives that this right was absent from any of the existing Imperial statutes and was added to the Australian Copyright Bill on the basis of its inclusion in the proposed House of Lords literary copyright Bill.15 Even without this Imperial influence, Chapter Four illustrated that dramatisations of novels was a lucrative business in the Australia colonies and it is arguable that such a market may also have motivated the inclusion of a dramatisation right in the Copyright Act 1905.16
This is in contrast to the right of translation, which was also codified for the first time under the Copyright Act 1905. As discussed in Chapter Four, there was not a large market for foreign language translations of books at this time, although there was a budding serial and newspaper market in development.17 Interestingly, for the purposes of the present discussion, the Copyright Act 1905 provided a noteworthy qualification to the author’s right of translation: pursuant to section 30, where no translation, in a specific language, had been made within a decade of publication of the book, the Minister could compel the copyright owner to produce such a translation, or permit
11 ‘Unpublished literary compositions’ were also protected, though by the common law of England, pursuant to section 7 of the Act. See Section B(i) below. 12 ‘Publish’ and ‘Publication’ were defined in section 4 to mean the ‘offer for sale or distribution…so as to make the book accessible to the public’. Although copyright immediately subsisted upon publication of the book, thus eliminating the need for any formal registration requirements, in order to commence an action for infringement the owner had to register the book. However, after registration the owner was entitled to commence actions for any infringement that had occurred prior to registration. See Copyright Act 1905 s 74(1), (2). Part VII of the Act dealt with the formalities for the registration of copyrights. 13 (1886) 12 VLR 483. 14 See Chapter Four Part II Section A(i). 15 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7263 (Mr Littleton Ernest Groom and Mr Alfred Conroy). 16 See Chapter Four Part II Section A(i). 139 another person to translate the book.18 Copyright would then subsist in this lawful translation or abridgment.19
While it is commendable that such a provision was introduced, section 30 was technically more restrictive on the public domain than what was dictated by international treaties at that time. Pursuant to Article 5 of the Berne Convention, as drafted in 1886, the author’s ‘exclusive right of making or authorizing the translation of their works’ expired ten years after first publication of the work.20 A later Article of the Convention then specifically recognised that the translation rights in works would enter the public domain.21 Article 5 was subsequently modified by the 1896 Paris Act, so that the right of translation extended for the ‘entire term of the right’. However, the translation right would actually expire ‘if the author shall not have availed himself to it, during a term of ten years from the date of first publication of the original work’.22 Therefore under the Berne Convention this right would enter the public domain.
This was not the case in Australia, as the right to translate a work did not enter the public domain after the initial decade from publication. Although the Federal Parliament could have legislatively provided that this right would enter the public domain, it created both an exclusive right and a ‘public right’ instead. If an author had not ‘availed himself’ of that exclusive right, then this lack of action would only provide an interested translator with the option of making an application to the Minister on this issue, pursuant to section 30.23 For some reason, not discussed in the parliamentary
17 Ibid. See also Anne Holmes, ‘Case-study: Publishing in Languages other than English’ in Martyn Lyons and John Arnold (eds), A History of the Book in Australia 1891-1945: A National Culture in a Colonised Market (2001) 64-68. 18 Copyright Act 1905 s 30. 19 Copyright Act 1905 s 31. This was consistent with Article 6 of the Berne Convention, 1886. See further Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd ed, 2006) [2.44]. 20 Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9 1886 Art 5. 21 Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9 1886 Article 7, stated in part that ‘It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers.’ 22 Additional Act Amendment Articles 2,3,5,7,12, and 20, of the Convention of September 9, 1886, and Numbers 1 and 4 of the Final Protocol Indexed Thereto of May 4, 1896 Art 1 (III). 23 In the course of parliamentary debate on this provision, Senator Keating quoted Article 5 in its entirety, before stating that ‘[a]cting on that principle [of Article 5], it is provided that, at the end of ten years, if any one desires to translate a work, he may make an application in writing to the Minister’: Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2914 (Senator John Keating). However, other members of the Senate were more concerned with whether 140 debates, the Parliament apparently believed that the public interest would be better served in this way. It is only possible to hypothesise as to why this was done. One reason may be that the Parliament hoped this would stoke a local foreign language publishing industry that, as I noted above, Australia was lacking at this time. The Parliament may have believed that the introduction of this public right would lead to a greater number of translations of significant English-language works, so that the foreign language migrant population would be more aware of the values of the budding Australian Commonwealth: as Heath notes, a number of laws in the early 1900s ‘were designed to protect the racial strength and purity of the Australian nation from the threat of a predominantly imported literature’.24 Thus for the broader purposes of this Chapter, section 30 is an example of a parliamentary policy that benefits the public interest and public rights as opposed to the public domain.
Copyright in subsequent editions was also comprehensively dealt with for the first time under Australian law. Pursuant to section 27 of the Act:
Any second or subsequent edition of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book or any part thereof after the expiration of the copyright in the former edition. Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book or a person authorized by him, shall be entitled to publish a second or subsequent edition thereof. [emphasis added]
When the Copyright Bill was first introduced into the Senate, section 27 did not contain the phrase ‘material or substantial’.25 It simply provided that copyright would subsist if the ‘book contain[ed] any alterations or additions’ (emphasis added). Many members of the Senate noted the serious implications flowing from this provision as drafted.26 Senator Symon stated that ‘what I am strongly opposed to is the empowering of an author to evade the period of copyright established by the Bill, and to secure for himself
the Minister was the appropriate individual to address these claims, rather than the quite significant differences between Article 5 and what was permitted under the Copyright Bill: Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2914-2915 (Senator Henry Dobson, Senator John Keating and Senator James Drake). 24 See Deana Heath, ‘Literary Censorship, Imperialism and the White Australia Policy’ in Martyn Lyons and John Arnold (eds), A History of the Book in Australia 1891-1945: A National Culture in a Colonised Market (2001) 69, 69-70. 25 Section 27 was debated as Clause 26 of the Copyright Bill: see Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2656. 141 stepping stones of different periods by making a few alterations to his book’.27 The Senator further argued that ‘[t]he public ought to receive something in return for the copyright in which they give, and there ought to be some definition of “edition” or otherwise the public may be robbed of the consideration to which they are entitled.’28
The fact that the public would be deprived of an entitlement was also on the mind of Senator Clemons, who stated that, ‘It appears that we are practically giving a right to an author to a perpetual copyright or a right to a perpetual lease of renewal of copyright.’29 Similar sentiments were echoed by Senator Drake, who also spoke in terms of the ‘perpetual copyright’ that this provision, as it was worded, could grant.30 Indeed, it was noted that in the context of legal texts, given the regular output of subsequent editions, there already was ‘practically perpetual copyright’ in these texts.31 After much debate, the provision was therefore amended prior to the passing of the Bill to formally include the words ‘material or substantial’.32
The fact that section 27 received such debate is reflective of the state of publishing of educational textbooks and legal texts in Australia at that time. State-based elementary education had only become mandatory for children in the latter part of the 19th century and it was only by 1885 that the colonies of Victoria, South Australia, Queensland, New South Wales and Tasmania had enacted legislation providing for ‘free, compulsory and secular education’.33 Until the growth of local publisher Angus & Robertson, school texts were generally imported from overseas.34 Once Angus & Robertson began to
26 It was also noted that, pursuant to the existing common law in England, only subsequent editions with substantial alterations were protected: Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2656-2661. 27 Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2657 (Senator Sir Josiah Symon). 28 Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2657 (Senator Sir Josiah Symon). 29 Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2668 (Senator John Clemons). 30 Commonwealth of Australia, Parliamentary Debates, Senate 22 September 1905, 2668 (Senator James Drake). 31 Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2668 (Senator James Drake). 32 Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2669. Debate on other features of the provision, including on the title of the work, continued: see Commonwealth of Australia, Parliamentary Debates, Senate, 22 September 1905, 2669-2679; Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2910-2911. 33 Alan Barcan, A History of Australian Education (1980) 131. 34 See, eg, E A Petherick & Co’s Monthly Catalogue, 28 February 1893 (Vol 4, No 36), 9 (‘Education and School Books’). 142 develop its catalogue, educational texts were included and, as these titles grew, a number of subsequent editions were also published.
A comparison of the first and subsequent editions of a number of Angus & Robertson’s educational texts highlights what the Federal Parliament was purposely seeking to avoid under section 27: republication of texts with minor amendments, generating new copyright and subsequently perpetual copyright through stepping-stone. For example, the first and second editions of Angus & Robertson’s original educational texts The Growth of the Empire: A Handbook to the History of Great Britain35 and The Geology of Sydney and the Blue Mountains: A Popular Introduction to the Study of Geology36 are virtually identical, with few amendments. There are greater changes in the text Geography of New South Wales; three editions were published over roughly the same period of the other two books.37 However, it is debatable that these subsequent editions deserved new copyright and arguably it would not have been obtained pursuant to section 27.
This discussion, and the revised section 27, raises a number of public domain issues. First, the debate surrounding the amendment of section 27 indicates that, at this time, there was no desire on the part of the Federal Parliament to introduce a perpetual length of copyright for books – or, at least, books that had been published. The term of protection for books is discussed in Part II below, but for the present purposes it is enough to note that copyright protection for published books at this time was clearly limited in term. The Federal Parliament was intolerant of authors potentially using a legislative loophole to secure a limitless term of copyright.
Second, the wording of this provision also reinforces the public domain aspects of section 27. The limited length of protection is reflected in the wording of the section: it
35 Cf Arthur W Jose, The Growth of the Empire: A Handbook to the History of Great Britain (1897) with Arthur W Jose, The Growth of the Empire: A Handbook to the History of Great Britain (2nd ed, 1900). The only differences I could identify were the inclusion of two additional maps; the removal of one map; and the revision of one map. 36 Cf J Milne Curran, The Geology of Sydney and the Blue Mountains: A Popular Introduction to the Study of Geology (1898) with J Milne Curran The Geology of Sydney and the Blue Mountains: A Popular Introduction to the Study of Geology (2nd ed, 1899). The only differences that I identified were the inclusion of a ‘Preface to the Second Edition’; differences between some of the images included; and the addition of two colour maps in the second edition. 37 Cf J M Taylor, Geography of New South Wales (1898) with J M Taylor, Geography of New South Wales (3rd ed, 1902). 143 was explicitly recognised that copyright in published books eventually expired. In a similar vein, section 27 not only referenced the entitlement of an individual to reproduce a work that was in the public domain, but went one step further: it referred to this entitlement as a right. Under section 27, an individual had a right to reproduce a public domain work. This is arguably the only time that the Australian public has had their rights so explicitly enunciated and therefore so well protected under copyright law.38
In the words of Senator Symon, without the amendments to section 27 ‘the public may be robbed of the consideration to which they are entitled.’ The public – and the public interest in this case - was served by focus on the public domain, rather than the introduction of greater private interests or public rights.
This is in contrast to the final provision that I will discuss in relation to books, section 28 of the Copyright Act 1905, which provided a limitation on the exclusive rights and private rights of the copyright owner:
Copyright in a book shall not be infringed by a person making an abridgment or translation of the book for his private use (unless he uses it publicly or allows it to be used publicly by some other person), or by a person making fair extracts from or otherwise fairly dealing with the contents of the book for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information.
This section is important as it defined, for the first time under Australian law, the specific number of ways that the public could interact with a published book, beyond simply reading it.39 It provided a defence for the use of parts of a book, whether this was for the purposes of a book review, or for a broader purpose, to create an entirely new work. An individual could also create private abridgments and translations, if he or she desired.40
38 As Cahir notes, the public do not have a positive right to the fair dealing provisions of the United Kingdom Copyright, Designs and Patents Act 1988 (c 48): these are just defences to infringement. The same position applies in Australia. See John Cahir, ‘The public domain: right or liberty?’ in Charlotte Waelde and Hector MacQueen (eds), Intellectual Property: The Many Faces of the Public Domain (2007) 35, 40. See also Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact (2005) 10, discussed in Chapter One above. 39 Atkinson comments that ‘the Australian Act [of 1905, in contrast to the later British Act] seemed to contemplate a broader ambit of copying activity by the individual.’ See Atkinson, above n 2, 90, footnote 12. Burrell and Coleman argue that this section ‘provided for a fair use defence in unambiguous terms’: see Burrell and Coleman, above n 38, 257. 40 Section 28 attracted some controversy before the Copyright Bill was passed, although perhaps not as much as might be expected. One of the main issues under consideration was whether section 28 would 144
Section 28 is quite different from the preceding provision discussed, section 27. The latter provision referred to an entitlement of the public that would have existed, regardless of whether it was explicitly mentioned in the Copyright Act 1905. Section 27 simply codified the public’s entitlement to a particular use of the public domain and referred to such a use as a ‘right’. However, pursuant to section 28 the public was entitled to particular private and transformative uses of works; uses that it would not have been entitled to but for this provision. On this basis, section 28 is what I term a ‘public right’, reminiscent of the fair dealing provisions included in later statutes. The consequences flowing from these two different provisions will be discussed later in the Conclusion to this Part.
ii. ARTISTIC WORK COPYRIGHT
In contrast to the provisions regulating copyright in books, the sections granting copyright to artistic works were quite brief and subject to little parliamentary debate. Pursuant to section 4, an ‘artistic work’ was defined to include
(a) any painting, drawing, or sculpture ; and (b) any engraving, etching, print, lithograph, woodcut, photograph, or other work of art produced by any process, mechanical or otherwise, by which impressions or representations of works of art can be taken or multiplied[.]
Section 34 defined the nature of the copyright in an artistic work: the owner had ‘the exclusive right to reproduce or authorize another…to reproduce the artistic work, or any material part of it, in any manner, form, or size, in any material, or by any process, or for any purpose.’ Section 35 then stated that copyright subsisted in every artistic work that was made in Australia following the commencement of the 1905 Act, regardless of whether the creator of that work was a British subject. Section 37 provided that the author was the first owner of the copyright in that artistic work.
allow publishers of reviews to essentially ‘thieve’ copyright-protected articles by republishing them, and seek protection under this provision: Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2911 (Senator George Pearce). Another query related to a problem still faced by courts today: determining whether an extract or quotation from a copyright-protected work constituted an infringement: Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2912 (Senator John Keating). Ultimately, however the provision was passed, with little amendment. 145 Arguably more important than the rights granted was the term of protection for such works. This will be discussed in Section B below.
iii. LECTURES
The peculiar form of proprietary rights falling under the category of ‘lecture copyright’ was explored in the colonial context in Chapter Four.41 The Copyright Act 1905 preserved these rights and extended their application. Pursuant to section 15(1), a ‘lecturing right in a lecture’ was defined as ‘the exclusive right to deliver it, or authorize its delivery, in public, and, except as hereinafter provided, to report it.’ A ‘lecture’ was defined in section 4 to include a sermon; the importance of this inclusion will be discussed in greater detail below. Section 16(3) further stated that this lecture right began with the first delivery of the lecture in public in Australia. However, the lecturing right would cease if the lecture were subsequently published as a book (with the consent of the owner of the lecturing right).42 Thus, copyright and the lecturing right subsisted independently and were mutually exclusive: only one type of right could subsist at a time.
As I noted in Chapter Four, the main issue with respect to lectures was their reporting and whether the facts and ideas presented in those lectures could be reproduced and reported in newspapers.43 This issue was somewhat clarified under the 1905 Act, although the power of the author to restrain reporting of the lecture remained. Pursuant to section 33(1), unless reporting of the lecture was prohibited by notice then a newspaper report of the lecture would not infringe the lecturing right. However, section 33(2) made the provision of notice a simple task: a prohibition on the reporting of the lecture could either be given orally at the start of the lecture, or given by a written notice affixed in a prominent place.44 Therefore, the restriction on the reporting of these lectures remained and it was arguably easier for the author of the lecture to restrict its
41 See Chapter Four Part II Sections A(iv) and C(ii) above. 42 Copyright Act 1905 s 17(4). 43 See Chapter Four Part II Section A(iv) above. 44 Where a series of lectures were to be delivered, notice need only be given once: see Copyright Act 1905 s 33(3). 146 reporting under the 1905 Act than the equivalent colonial provisions, further curtailing any dissemination of public domain ideas and facts presented in that lecture.45
Further, as I discussed in Chapter Four, under the colonial copyright statutes (and the 1835 UK Lecture Copyright Act) protection was denied to lectures delivered in a university, public school, college, or public foundation.46 Such lectures would therefore have entered the public domain upon delivery. This distinction was removed under the 1905 Act and this category of lectures no longer excluded from protection, though some members of the Senate questioned whether university lecturers, paid on the public purse, should be entitled to protection.47 However, the predominant issue that arose in the course of parliamentary debates was what categories of lectures – if any – should be excluded from protection under the Copyright Act 1905. Discussion revolved around two types: sermons and political addresses.
Pursuant to section 4 of the Copyright Bill as originally introduced into the Senate, the term ‘lecture’ was defined as ‘a piece for recitation or any address, but does not include a political speech or a sermon delivered in a place of public worship.’48 Senator Keating explained that this exclusion was necessary because ‘[s]ermons and political addresses are delivered in such circumstances that in the eye of the law they are held to be dedicated to the public from the moment of their delivery’49 (emphasis added). Senator Keating’s comment suggests that, given certain types of lecture were allegedly
45 It is important to note that the exclusive rights in a lecture only extended to the delivery and reporting of the lecture; therefore, simply by default, an individual was entitled to take notes from that lecture, for private purposes. This position was confirmed in parliamentary debate: see Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2180 (Senator John Keating). However, those notes could go no further. 46 Chapter Four Part II Section C(ii) above. 47 In the course of parliamentary debate the following exchange occurred: Senator WALKER (New South Wales). – Will this clause apply to lectures delivered at a University by a professor? University professors are paid like a schoolmaster to lecture to the students, and I should like to know whether any of the latter would be debarred from taking notes of lectures so delivered. Senator KEATING (Tasmania – Honorary Minister). - Under this clause a University student would be at perfect liberty to take whatever notes of a lecture he thought necessary for his own private use, but he would not be allowed to take an extended note…and publish the lecture without the authority of the lecturer. See Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2180. 48 See Commonwealth of Australia, Parliamentary Debates, Senate, 12 October 1905, 3458. 49 Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905, 2918 (Senator John Keating). 147 ‘dedicated to the public’, those lectures should be in the public domain, free for all to use, upon delivery.
Such sentiments did not remain in the Copyright Bill. Many members of the Senate were outraged by the fact that protection would not be available for their political speeches, though there was some confusion between the terms ‘lecturing right’ and ‘copyright’:
Senator MILLEN. – What! Is there to be no copyright in political addresses?
Senator KEATING. – If the honorable senator chooses to deliver a political address as a lecture, and takes steps to preserve the copyright, perhaps he may do so. Otherwise political addresses are excluded from the benefit of this Bill.50
Political addresses, however, were not popular with newspaper or book publishers at that time, perhaps caused by the confusion surrounding the lecturing right provisions in force. Investigation into political speeches delivered by members of Parliament involved in the introduction of the Copyright Act 1905 and subsequently published reveals that many of these publications were direct reproductions of parliamentary debates, undertaken by parliamentary printers,51 although there were some exceptions.52 Interestingly, there was one topic that guaranteed publication of a speech by a parliamentarian (or member of the High Court), though arguably not directly relevant to any ministerial portfolio: William Shakespeare, whose public domain works were the cause of much debate and celebration during this period.53
In contrast, when consideration is given to what lectures were actually being published prior to the introduction of the 1905 statute, it is more surprising that sermons, as opposed to political addresses, were originally to be denied protection. The production
50 Commonwealth of Australia, Parliamentary Debates, Senate, 24 August 1905, 1430. 51 See, eg, Speech by Senator Staniforth Smith on British New Guinea Outlining A Policy of Development for Our New Possession (1905); Speeches by Senator The Hon. J.T. Walker, Senator A.J.J. St. Ledger and Senator Lt. Colonel The Hon. Sir Albert John Gould, V.D., on the Appropriation (Works and Buildings) Bill (1910). 52 For example, in 1900 future Justice of the High Court Henry Higgins had a collection of addresses on the Australian Commonwealth Bill published: see Henry Bourne Higgins, Essays and Addresses on The Australian Commonwealth Bill (1900, The Atlas Press). 53 See, eg, J H Symon, Shakespeare Quotation: A Lecture (1901, Eneas Mackay); The Hon Sir Josiah Symon, Shakespeare at Home (1905, Hussey & Gillingham); Mr Justice Higgins, Shakspere’s Aims and Ideals [sic] (1907, Sands & McDougall). See also Martyn Lyons, ‘Literary Anniversaries: Commemorating Shakespeare and Others, 1900-1940’ in Martyn Lyons and John Arnold (eds) A 148 of printed sermons was popular with many colonial publishers, arguably due to the fact that such addresses were usually short in length and could subsequently be easily published and sold quite cheaply. In the 50 years prior to Federation numerous colonial publishing firms produced a range of sermons produced by Australian churchmen of all standings.54 The continued publication of such works over a substantial period of time indicates that there was a market for such publications and thus it is not surprising that the proposed definition was removed before the Bill was passed and ‘sermons’ explicitly included in the definitions of lectures.55
iv. CONCLUSION
A number of points can be distilled from the preceding analysis with respect to the public domain as conceptualised under the Copyright Act 1905.
First, there was an expansion of the exclusive rights of the copyright owner in a book under the 1905 statute. The rights of translation, dramatisation, and abridgment were codified and subsequently there was no question as to whether such rights were in the public domain.
Second, the 1905 statute introduced the first formal public right, section 28, though there was still some codification of what the public was entitled to do through the public domain, for example, the use of editions of books in which copyright had expired, pursuant to section 27. The Parliament was adamant that publishers should not be able to use copyright in subsequent editions to gain perpetual copyright by ‘stepping stone’, a practice that was already underway in the publication of educational texts in Australia.
History of the Book in Australia 1891-1945: A National Culture in a Colonised Market (2001) 389- 400. 54 See, eg, “The Victor’s Crown.” A Sermon on the Occasion of the Death of the Venerable William Cowper, D.D., Archdracon of Cumberland and Incumbent of St. Phillip’s Sydney. Preached in the Parish Church of St. Philip, by the Right Reverend The Lord Bishop of Sydney, on Sunday, July 12th, 1858 (1858, W.R. Piddington); David Blair, The New Gospel of the Deadened Brain, or, Spiritism Exploded (1872, J. Brooks); D M Berry, Judgment Without Evidence: A Cross-Examination of “Religion Without Superstition” (1885, George Robertson & Co); Joseph Campbell, Difficulties of Belief No. 1. Creation; or Moses and Geology (1895, Angus & Robertson); Alfred Barry, The Prayer for Wisdom: A Prayer for These Times (1889, Turner & Henderson). In her exploration of the Angus & Robertson catalogue, Alison identifies seven texts on theology published during the period 1888- 1890 and the majority of these appear to be sermons: see Jennifer M.E. Alison, Angus and Robertson as Publishers 1888-1900: A Business History (PhD Thesis, University of New South Wales 1997) Appendix 3 ‘Angus and Robertson Publications 1888-1900 Listed By Subject/Genre’ 303. 149
Third, what the Parliament conceptualised as being in the ‘public interest’ did not always correspond with what would have been the most beneficial for the public domain. This is illustrated by the wording of section 30, which was more restrictive of the public domain than was necessary under international treaties at that time.
Fourth, and finally, the Federal Parliament made some unusual choices with respect to the lecturing right in sermons, political addresses, and speeches given in an educational context. In the first instance there was a clear market for sermons and no reason why those addresses should be denied a lecturing right. However, the reasoning given to the protection of political addresses was weak and there was no discussion of the inclusion of a section similar to those in the colonial statute that would have provided no lecturing right subsisted in such addresses. Given the restrictive nature of the notice provisions for lectures at that time, the denial of copyright protection to such works would have arguably been beneficial to the broader community.
B. TERMS OF PROTECTION
i. BOOKS
In Chapter Four I noted the enthusiasm of colonial readers for books and similar, serial- based fiction publications.56 Such enthusiasm clearly continued after Federation and one of the concerns of the Federal Parliament was that the public should be able to access books at affordable prices.57 For example, Senator Smith, when discussing an appropriate term of protection for books, noted that:
I think it is well worthy of consideration whether we should not somewhat limit that time in the interest of the great mass of the public who are desirous to obtain works of literature, and who in many cases cannot obtain those works unless they are published in what are termed cheap editions.58
55 Tasmanian Senator Dobson was responsible for the proposal: see Commonwealth of Australia, Parliamentary Debates, Senate, 12 October 1905, 3462 (Senator Henry Dobson). 56 See Chapter Four Part II Section A(i) above. 57 Indeed, as Lyons notes, ‘[i]t is clear that one reason why Australia was such a strong reading society in this period was because Australian readers got their books very cheaply’: see Martyn Lyons, ‘Britain’s Largest Export Market’ in Martyn Lyons and John Arnold (eds), A History of the Book in Australia 1891-1945: A National Culture in a Colonised Martket (2001) 19, 25. 58 Commonwealth of Australia, Parliamentary Debates, Senate, 30 August 1905, 1646 (Senator Miles Staniforth Smith). 150 Such a statement inherently illustrates the importance of the public domain at 1905: the public benefited from publishers reproducing for a cheap price books that were out of copyright, arguably providing one of the clearest reasons as to why the public domain mattered at this time. The term of copyright for books was therefore a significant issue.59 As Sir Josiah Symon noted, ‘[t]his is undoubtedly, if not the most important, one of the most important provisions of the Bill. The whole advantage or disadvantage of the Bill rests on the duration of copyright granted under it.’60 However, the original length of protection proposed in the Copyright Bill was quite different from that provided in the colonial copyright statutes and the later Act. Pursuant to section 17(1) of the Copyright Bill as introduced into the Senate:
The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall subsist for the term of the author’s life and thirty years after the end of the year in which he dies, and no longer.61 [emphasis added]
Section 17(2) then provided that where first publication, performance or delivery occurred following the death of the author, the relevant copyright, performing right or lecturing right would extend for 30 years following this first publication, performance or delivery.
This period was intended to apply to all categories of creations, including an artistic work, with the intention of creating uniformity between Australia and any future United Kingdom copyright legislation.62 While this period was longer than any term provided in the colonial statutes, it also purported to introduce another, more minor term extension: that copyright would subsist until the end of the year in which the author died.
Two points are noteworthy for the purposes of this discussion. The first is the use of the phrase ‘and no longer’. This appeared in section 17(1) as introduced, though it was
59 The Bill was only just into its Second Reading when debate on the term of protection began: see Commonwealth of Australia, Parliamentary Debates, Senate, 30 August 1905, 1636-1640 (Senator Henry Dobson, Senator John Keating, Senator Edward Mulcahy, Senator Edward Millen, Senator Thomas Playford, Senator Miles Staniforth Smith, Senator Sir Josiah Symon, Senator James Walker). 60 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2181 (Senator Sir Josiah Symon). 61 Copyright Bill 1905 (Cth) s 17(1). 62 See Commonwealth of Australia, Parliamentary Debates, Senate, 24 August 1905, 1430 (Senator John Keating). 151 ultimately removed by the passing of the Act, arguably due to the fact that it would not read well with the amended provision.63 These few words do not appear to have garnered any attention during parliamentary debate, but their effect is clear. Copyright was intended to subsist for the duration specified in the provision, and not a day more. That copyright was considered a limited right was again reinforced by this proposed provision. Once that time had passed the book would enter the public domain.
The second is the fact that, as with the phrase ‘and no longer’, the proposed term did not remain. When the proposed provision was considered in the Senate, Senator Givens immediately requested an amendment.64 Indeed, Senator Givens even argued that the existing Imperial and colonial term of 42 years was too long for copyright protection, later revealing that he believed 35 years was more appropriate.65 The Senator further stated that the suggested term ‘would have the effect of limiting the publication of valuable works at a time when they ought to be free to the public.’66 ‘Thirty’ was subsequently replaced, in a number of separate amendments, with ‘forty-two years’ and ‘the life of the author and seven years’.67
Therefore, under the Copyright Act 1905 the length of protection for books remained the same as provided in the colonial statutes. Pursuant to section 17(1), copyright subsisted for the term of 42 years or the life of the author and seven years, whichever was longer. Section 17(2) was also amended, providing that where a book was published posthumously it would be entitled to 42 years protection. Again, this was the
63 The amended provision finishes with the words ‘whichever shall last the longer’: see Copyright Act 1905 s 17(1). Adding the phrase ‘and no longer’ onto the end would have reduced the aesthetics of the provision. 64 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2181 (Senator Thomas Givens). For the full debate on this provision, see Commonwealth of Australia, Parliamentary Debates, 13 September 1905, 2181-2190. 65 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2182 (Senator Thomas Givens). 66 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2181 (Senator Thomas Givens). 67 See Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2190. After this amendment was made, Senator Stewart delivered one of the few copyright-maximalist speeches on the Act, implying that copyright should last indefinitely. However, there was no suggestion in parliamentary debate that the duration of copyright under section 17 should be perpetual. See Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2190 (Senator James Stewart). But see the discussion between Senators Givens and Keating involving an article written by Mark Twain, advocating a term of perpetual copyright protection: Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2186 (Senator Thomas Givens and Senator John Keating). 152 same as the colonial statutes, but longer than the Parliament had initially proposed. Section 17(3) provided for cases of joint authorship: where a book was written by joint authors, copyright would subsist for the longer between 42 years or ‘their joint lives and the life of the survivor of them, and seven years’. This was the first time that joint authorship appeared in an Australian copyright statute.
As I noted in Chapter Four, one issue that is often overlooked in public domain scholarship is how long copyright would have subsisted in a book produced by an author at a certain age, in light of life expectancies at the time. However, given that it appears that one of the main reasons the public domain was valued at this time was the provision of cheap editions of books, as discussed above, such calculations are quite significant. These calculations illustrate how long it would take for these cheap editions to begin production, based on when the book would enter the public domain. Therefore, using statistical information collected by the Australian Bureau of Statistics, the following calculations can be made regarding the length that copyright would have subsisted in a book based on how many more years a person at a certain age would have been expected to live.
In this instance, separate Tables are used for male and female authors and Tables D and E are arranged slightly different to Table A above. In Tables D and E, the first column provides the age of the author at 1908, a hypothetical year of publication chosen for the present purposes. The second column states the additional years of life expectancy for an individual during the period 1901-1910, based on data from the Australian Bureau of Statistics. The third column illustrates the duration of copyright for that book; again, either life of the author plus seven years, or 42 years. The final column identifies what year copyright in the book would have expired in each case, had publication occurred in 1908.
153 TABLE D: DURATION OF COPYRIGHT IN WORKS PRODUCED BY MALES IN LIGHT OF LIFE 68 EXPECTANCIES IN THE PERIOD 1901-1910
Age at Expectation of Duration of Copyright Year in Which 1908 Additional Years of Copyright Would Life at that Age Expire, If Book Published 1908 20 44.74 Life of the author plus seven 1960 years; for a total of 51.74 years protection 25 40.60 Life of the author plus seven 1955 years; for a total of 47.60 years protection 30 36.52 Life of the author plus seven 1951 years; for a total of 43.52 years protection 35 32.49 42 years 1950 40 28.56 42 years 1950 45 24.78 42 years 1950 50 21.16 42 years 1950 55 17.67 42 years 1950 60 14.35 42 years 1950
Interestingly, the pattern that emerged under the colonial statutes remained here. The life-plus-seven term of protection would have applied to books created by men under the age of about 35 years old, whereas the 42-year term would have applied for those older than 35 years. A similar pattern emerges when the same calculations are done for female authors:
68 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.2: Life expectancy at single ages (ex), males, Australia, 1881 onwards’, 2008,
Age at Expectation of Duration of Copyright Year in Which 1908 Additional Years of Copyright Would Life at that Age Expire, if Book Published 1908 20 47.52 Life of the author plus 7 1962 years; for a total of 54.52 years protection 25 43.36 Life of the author plus 7 1958 years; for a total of 50.36 years protection 30 39.33 Life of the author plus 7 1954 years; for a total of 46.33 years protection 35 35.37 Life of the author plus 7 1950 years; for a total of 42.37 years protection 40 31.47 42 years 1950 45 27.59 42 years 1950 50 23.69 42 years 1950 55 19.85 42 years 1950 60 16.20 42 years 1950
In this case, given that women generally had (and indeed continue to have) a longer life expectancy, female authors who produced works at ages 20 through 35 would have enjoyed the seven-year posthumous term of protection. The only shift was for a woman who produced a book at age 35. Under the colonial statutes, the 42-year period would have applied, based on the fact a woman during that time would only be expected to live another 32.58 years.70 In the 1901-1910 period, however, a woman gained a little under three additional years and would be expected to live another 35.37 years. Thus, the life of the author-plus-seven years period would apply; though, as Table D illustrates, by what may have only amounted to a few months. From about the age of 40, the static 42- year period would have applied. On that basis, any book published in 1908 would have been released into the public domain in 1950.
69 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.6 Life expectancy at single ages (ex), females, Australia, 1881 onwards’, 2008,
One final issue remains: protection for ‘unpublished literary compositions’. As noted in both Chapters Two and Four above, section 7 of the 1905 Act provided that ‘the Common Law of England relating to proprietary rights in unpublished literary compositions’ extended throughout the Commonwealth and thus unpublished books also received protection.71 Under the common law such unpublished compositions would have been entitled to perpetual protection and, as in the colonies, these works would not have entered the public domain if they remained unpublished.
Although the common law would have protected unpublished literary composition regardless of the inclusion of section 7, this provision highlights the fact that the Federal Parliament believed that the continued protection of such unpublished literary creations should occur. This is in stark contrast to the position of many parliamentarians on the issue of the term of protection for published books, illustrating that although the Federal Parliament believed the term should be limited for published books, protection for unpublished creations should continue. This is in spite of the fact that this meant such creations would never enter the public domain.
ii. ARTISTIC WORK COPYRIGHT
Section 36 arguably provided one of the more significant changes under the Copyright Act 1905. Pursuant to this provision, copyright began with the making of the artistic
71 See Chapter Two Part II Section B and Chapter Four Part II Section B(i) above. 156 work and subsisted ‘for the term of forty-two years or for the author’s life and seven years whichever shall last longer.’72
Section 36 therefore created an inconsistent situation under Australian copyright law. Artistic works created prior to the 1905 Act would have been protected under the applicable colonial statute. In Victoria, New South Wales, South Australia and Western Australia, such works would have been protected for either 14 years in the case of paintings, drawings, works or sculptures and engravings, or three years for photographs and negatives. However, works created in either Tasmania or Queensland prior to 1905 Act, or in any jurisdiction in Australia after the passing of the Federal legislation, were entitled to the longer term of the life of the author and seven years, or 42 years.
The different lengths of protection available for artistic works were noted early in parliamentary debate on the Copyright Bill, though not subjected to any particular scrutiny.73 In a different context, some parliamentarians suggested that it would not be possible to pass any laws that conflicted with those enacted in the UK, reflecting an earlier comment made by Senator Symon that should a provision ‘be inconsistent with the Imperial law, it can have no effect until ratified by the Imperial authorities. It is, therefore, incumbent upon us to be particularly careful that we do not impinge upon, or conflict with, that Imperial law.’74 On this basis, one reason why this particular period was introduced for artistic works may have been a fear that the shorter term of protection would not be permitted under then-current Imperial conditions. Another reason may be that the Parliament wished that all categories of creation protected under the Copyright Act 1905 be for the same duration. Yet no formal position was given for the change in parliamentary debate, echoing the silence of the Legislative Assembly of the colony of Victoria, the first legislature to introduce the reduced period of protection.75
72 Again, as with copyright in books, the owner needed to register the artistic work in question prior to commencing any action for infringement. See Copyright Act 1905 s 74(1). 73 See Commonwealth of Australia, Parliamentary Debates, Senate, 24 August 1905, 1429 (Senator John Keating). 74 Commonwealth of Australia, Parliamentary Debates, Senator, 30 August 1905, 1641 (Senator Sir Josiah Symon). 75 See Chapter Four Part II Section B(ii) above. 157 This issue was noted when the Copyright Bill was finally debated in the House of Representatives on 18 December 1905, three days before the Bill received assent. When this clause was raised, House of Representatives member Mr Conroy vehemently opposed its introduction, rightly noting that ‘[w]e are asked, without rhyme or reason, to extend the term of artistic copyright to forty-two years.’76 Mr Conroy further argued that
Considering that the proprietors of patents, which represent the highest efforts of mechanical genius, are protected for only fourteen years, surely that is a sufficiently long term to apply to artistic copyrights! I contend that in this Bill we are going too far because we are lessening the rights of individuals. What would be thought if forty-two years had to elapse before we could take advantage of any patent? We must fix a reasonable period at which the public shall secure a return for the exclusive rights which they have conferred upon particular individuals.77 [emphasis added]
Mr Conroy moved that the term ‘forty-two’ be replaced with ‘fourteen’, thus attempting to restore the colonial period of protection to the Federal Bill. However, the amendment was negatived and a further proposal that a 28-year period be introduced was also denied.78 Thus, it was not until three days before this Bill received assent that a member of the legislature recognised both the substantial increase in the length given to artistic works under the Bill and the loss of rights that this could cause the public.
As I noted in Chapter Four, one of the mysteries of Australia’s public domain is why the colonial Victorian Parliament introduced the 14 and three year terms of protection for certain artistic works as part of its 1869 copyright legislation.79 Another of these mysteries is arguably why, in 1905, the Federal Parliament scrapped these lengths entirely with little debate as to its actual existence, and substantially extended the term of protection for artistic works. There are two possible reasons. First, that the Federal Parliament wished the terms of protection should be uniform with the Imperial position; or second, that the duration of the rights in all manner of protected creations be the same period.
76 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7268 (Mr Alfred Conroy). 77 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7269 (Mr Alfred Conroy). 78 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7269 (Mr Alfred Conroy). 79 See Chapter Four Part II Section B(ii) above. 158 Indeed, the lack of debate provides an interesting juxtaposition to the parliamentary discussion surrounding books. As discussed above, in that instance members of the Federal Parliament were adamant the period remain the same, whereas in the case of artistic works few considered why such a change should be made. Perhaps, given that in the former instance a positive use for the existing term was identified (the creation of cheap editions) that allowed the public domain to be maintained; in the latter instance of artistic works because no such use could be easily identified, and thus the change was made.80
iii. LECTURES
In contrast to the colonial and UK statutes granting lecturing rights, the Copyright Act 1905 specified a term of protection for such rights.81 Pursuant to section 17(1), a lecture right subsisted for either 42 years or the life of the author and seven years, whichever of those two was the longer period. Under section 17(2), where a lecture was delivered after the death of the author, the period of protection would run for 42 years. The duration of a lecturing right was therefore the same as granted for books and artistic works.
Some members of the House of Representatives questioned the period of protection granted to lectures, with Mr Conroy noting that ‘[w]e are making it possible for actions for infringement to arise after the generation which first heard the lecture had passed away.’82 Despite the correctness of such a statement, the period remained. This is arguably unfortunate given that, as noted in Section A above, where notice was given the lecture could not be reported, thus stifling the reporting of facts and information from such lectures for a significant period of time.83
80 For example, as noted in Chapter Four, art publishing did not become commonplace in Australia until 1916: see Chapter Four Part II Section B(ii) above. 81 See discussion above, Chapter Four Part II Section B(iv). 82 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7262 (Mr Alfred Conroy). 83 Cf Copyright Act 1905 s 28, discussed above, where copyright in a ‘book’ would not be infringed in certain circumstances. This did not extend to a lecture protected under lecture copyright, but would apply where the lecture was subsequently published and thus protected under copyright as a book. Modern fair dealing provisions made no distinction in the application of the defence to the categories of creation protected under the Act: see Copyright Act 1968 (Cth) ss 40, 41, 41A, 42, 43, 103, 103A, 103AA, 103B, 103C, 104. 159 iv. CONCLUSION
The above discussion has revealed the maintenance of the term of protection for one form of creation; an extension of the period of protection for a second category of creation; and the clarification of the term of protection for a third category of creation under the Copyright Act 1905.
In the first instance, the maintenance of Australia’s public domain underpinned the decision of the Federal Parliament to keep the term of protection for books to life of the author plus seven years, or 42 years. The provision of cheap books to the public – through the expiration of copyright – was the major reason identified by the Parliament to maintain the Imperial and colonial length of protection. Members of the Federal Parliament were also adamant that the term of protection for published works should always be limited.
In distinct contrast, in the second instance, there was no clear policy underlying the decision of the Federal Parliament to extend the term of protection for artistic works from 14 years or three years, as provided by the colonial copyright statutes, to life of the author plus seven years, or 42 years, under the Federal law. No reason was given for the change, though it is probable the reason was either uniformity of term between creations or uniformity with the laws of the British Empire. This extension brings to mind a comment by Bently, on the issue of the more modern doctrine of regional harmonization, particularly through the use of directives to harmonise the laws of the European Union.84 Although change to the term of protection occurred many years earlier, the same sentiment applies: ‘The losers - the public - play virtually no role in the debate, and the sacrifice of the public’s domain is not seen as a curtailment of a liberty or a deprivation of a pre-existing, established right.’85 There was no debate as to whether this change was in the interest of the public, or of broader benefit to the public domain.
In the third instance, the term of protection for lectures was formally stipulated; this was lacking from the colonial and similar UK lecture statutes. Despite the fact that some
84 Lionel Bently, ‘R. v The Author: From Death Penalty to Community Service 20th Annual Horace S. Manges Lecture, Tuesday, April 10, 2007’ (2008) 32 Columbia Journal of Law & the Arts 1, 52-57. 85 Ibid 55. 160 parliamentarians questioned whether it was appropriate to provide protection for lectures for ‘generations’ after the first delivery, the period remained. As with artistic works, if a public domain market could be identified it is arguable that a shorter period of protection may have been enacted. Yet this term perhaps particularly damaging, given the stringency of the reporting and notice provisions meant the facts and ideas delivered in such lectures could not be reported freely.
C. ADDITIONAL PUBLIC DOMAIN FEATURES
i. ‘BLASPHEMOUS, INDECENT, SEDITIOUS, OR LIBELLOUS WORK OR MATTER’
One of the most interesting provisions of the Copyright Act 1905 is directly relevant to a discussion of the Australian public domain. Pursuant to section 6
No copyright, performing right or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libellous work or matter.
The parliamentary debates indicate that this provision emanated from the UK Bill on literary copyright that I discussed in Part I above.86 Previously, similar provisions were contained in customs statutes of both the UK and colony of Victoria, where, for example, ‘Blasphemous indecent or obscene prints paintings books cards lithographic or other blasphemous indecent or obscene articles’ had to be forfeited and would be subsequently destroyed by the relevant authorities.87 Similarly, a number of UK courts had refused to either enforce copyright or grant certain remedies on the basis that the work in question was considered immoral or obscene.88 However, this was the first provision of its type to be included in a copyright statute. Its effect was that any work deemed to be ‘blasphemous, indecent, seditious, or libellous’ was not entitled to
86 For example, in a discussion of whether the word ‘indecent’ should be substituted with the term ‘immoral’, Senator Keating stated that, ‘It will be convenient to adhere to the words of the Copyright Bill as passed by the House of Lords as far as possible, so that in the event of the Imperial Parliament hereafter passing this legislation, our measure will be uniform with theirs.’: see Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2155 (Senator John Keating). 87 Customs Act 1890 (Vic), 54 Vict no 1081, s 49; see also An Act to amend and consolidate the Laws relating to the Customs of the United Kingdom and of the Isle of Man, and certain Laws relating to Trade and Navigation and the British Possessions 16 & 17 Vict c 107 (1853), s 44; An Act to consolidate the Customs Laws 39 & 40 Vict c 36 (1876), s 42. The term ‘blasphemous’ only appears in the Victorian version of this provision. 88 For a fuller account see generally David Saunders, ‘Copyright, Obscenity and Literary History’ (1990) 57(2) ELH 431. 161 copyright protection, as opposed to the material being forfeited and subsequently destroyed.89
It is not difficult to understand why such works would have been singled out for negative treatment in a copyright statute, given that, to the State, these works would not have warranted the same ‘incentive’ for creation as other works. The Parliament may also have wished to be seen as discouraging the development of a profitable market for such creations within Australia. Such issues were confirmed in the course of parliamentary debate, where Senator Symon noted that
I do not think, for instance, that anyone would wish to give the advantage of copyright to books like The Fruits of Philosophy. There may be a demand for books of that character greater than for other books which could be mentioned. What we want to stop is the making of such books a profitable property in the hands of their authors. For myself, I say at once that such a book as The Fruits of Philosophy should not have the advantage of copyright. That is what we ought to stop.90
This statement is clear evidence of copyright law being used for the purposes of censorship, albeit by denying protection in order to dissuade authors from writing such works and publishers from printing them.91 These works would therefore enter the public domain upon creation.
When viewed from a modern perspective this provision can be considered somewhat self-defeating; these works would automatically enter the public domain and there would have been no legal restriction on their reproduction, thus allowing their allegedly undesirable content to spread. Indeed, it is interesting that The Fruits of Philosophy was identified as one of the texts that should not enjoy the ‘advantage of copyright’. The
89 The threshold issue that arises, of course, is how a work would have been classified as being a part of this category. Such an issue would arguably only have arisen in the course of the registration of the work (see Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905, 7251-7253) or in legal proceedings where the defendant may have argued this provision as a part of their defence (see Commonwealth of Australia, Parliamentary Debates, Senate,13 September 1905, 2158 (Senator John Keating)). 90 Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2156 (Senator Sir Josiah Symon). 91 The potential problems of introducing a provision of this nature were also noted. Senator Givens acknowledged that, ‘We should be careful not to insert any provision which may take away an author’s right to his own productions simply because of any feeling or prejudice which may exist in the mind of the general public.’: see Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2157 (Senator Thomas Givens). The Bible and works by Byron and Shakespeare were all listed as potentially falling foul this provision: see Commonwealth of Australia, Parliamentary Debates, Senate, 13 September 1905, 2157 (Senator Thomas Givens, Senator Hugh de Largie and Senator George Pearce). 162 Fruits of Philosophy was a pamphlet written by Charles Knowlton in the 19th century advising married couples on taboo subjects such as contraception, home remedies for sexual arousal, and the female orgasm. The publishers of the pamphlet were tried for its production.92 Although parliamentary debates do not refer to it, the introduction of section 6 followed the infamous 1904 Report of the Royal Commission on the Decline of the Birth-Rate and on the Mortality of Infants in New South Wales. This report, as Heath notes, ‘shocked the Commonwealth and State governments, with its picture of Australia as a morally decadent society wallowing in obscene literature and the use of “preventives to conception”.’93 The Fruits of Philosophy was one example of this ‘obscene literature’.
As noted by Senator Symon, The Fruits of Philosophy was clearly one of the works that, in light of its subject matter (and arguably the declining birth rate of the Commonwealth) to which the Federal Parliament intended that section 6 would apply. Unfortunately for the Parliament, multiple Australian editions were produced by pre- and-post Federation publishers; one edition was printed in 1905.94 Further, popular colonial publisher George Robertson & Co also published a set of lectures delivered in Australia by The Fruits of Philosophy publisher Annie Besant on the controversial issue of theosophy95 – and none of these publications appeared to attract the ire of authorities. Thus, the intention of the Parliament appears to have backfired; denying copyright and deeming such works to enter the public domain does not appear to have hindered their publication, success, or the publication of related works.
The inclusion of section 6 in the Copyright Act 1905 is significant in this Thesis for a number of reasons. It is clear from the parliamentary debate and discussion above that the Federal Parliament did not consider the potential power of these works being in the public domain at this time. The Parliament believed that the public interest – the protection of the public from such publications - would be best served if it removed the incentive for the creation of these works. Yet, it did not consider that removing
92 For a more complete analysis see S. Chandrasekhar, “A Dirty, Filthy Book”: The Writings of Charles Knowlton and Annie Besant on Reproductive Physiology and Birth Control and an Account of the Bradlaugh-Besant Trial (1981); see also Peter Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia (revised ed, 1974) 49-52. 93 Heath, above n 24, 70. 94 See Fruits of philosophy: the private companion for young married people: with complete illustrated list of preventive and surgical appliances (1905, Will Andrade, Sydney). 163 copyright would mean that such works entered the public domain. Such a decision is arguably consistent with how the public domain was treated at this time – there was no clear policy or conception of the public domain, as illustrated by the earlier parts of this Chapter. Beyond the benefits of cheap editions of public domain books, there was no consideration of the broader nature of the public domain. In this instance, it would have been advisable to introduce stronger penalties for the creation of such ‘blasphemous, indecent, seditious, or libellous work or matter.’ Instead the Federal Parliament introduced a provision that broadened the public domain at this time.
III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1912
Chapter Five has considered a number of significant issues regarding the public domain in Australia. One of the most predominant issues was how, under the Copyright Act 1905, public domain considerations jostled alongside those of private interests, the public interest, and the first public right in Australia, section 28. As the analysis in this Chapter has revealed, there was no neat correlation between these different interests. A decision in the public interest did not always match what would have been best for the public domain. For example, the decision to reject what the Berne Convention provided with respect to the right of translation entering the public domain after ten years may, in the eyes of the Parliament, have benefited the public interest, but it did not benefit the public domain.
Further, in contrast to the colonial statutes, in developing the 1905 statute the Federal Parliament enunciated specific policies for a number of the legislative decisions that it made on the issue of copyright. For example, the term of protection for books remained as set under the colonial copyright statues because the Parliament was adamant that the public should have access to cheap books at the earliest possible time. In a similar vein, although protection was granted to subsequent editions pursuant to section 27, the Federal legislature was careful to limit that protection to subsequent editions featuring ‘material or substantial alterations or additions’ and it reiterated in that provision that any other person had a right to reproduce a former edition of that book where the copyright had expired. Finally, although it had the effect of creating a public domain of ‘sinful works’, the decision to exclude blasphemous, indecent, seditious, or libellous
95 Annie Besant, Australian lectures, 1908 (1908, George Robertson & Co). 164 works from protection was at least underpinned by a decision that the Parliament did not want to encourage the creation of such works by providing copyright in them – though with no consideration of what this meant for the public domain.
Nevertheless, a number of unusual provisions that affected Australia’s public domain were introduced into the statute with no reason: the term of protection for artistic works was extended from 14 years (paintings, drawings, sculptures, engravings, or three years (photographs), under the colonial statutes, to life of the author plus seven years, or 42 years, whichever period was longer. There was no reason given for the extension and barely a mention of the previous term. No legitimate reason was identified for including political addresses under the umbrella of the lecturing right, although the history examined in this Chapter has revealed that there were good reasons for sermons to be protected, given the burgeoning sermon market.
Only seven years after its passing, the Copyright Act 1905 became another repealed statute, relegated to the history books and Australian copyright became closer to the laws of the United Kingdom than ever before. These subsequent statutes, the Copyright Act 1911 and the Copyright Act 1912, will now be explored.
165 CHAPTER SIX
AN AUSTRALIAN PUBLIC DOMAIN WITH AN IMPERIAL FLAVOUR: THE 1911 AND 1912 COPYRIGHT ACTS
I. INTRODUCTION: THE IMPERIAL ACT AND ITS ADOPTION IN AUSTRALIA
Only three years after Australia enacted the Copyright Act 1905 (Cth), the Berlin revision of the Berne Convention gave the British Government a new impetus to re- examine its copyright laws.1 The laws of the United Kingdom with respect to copyright still lay splintered, with separate statutes for books, paintings, sculptures, engravings and lectures, despite the fact that many colonies of the United Kingdom had managed to create singular statutes for copyright.2 The 1878 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights,3 which had criticised the status of copyright throughout the Commonwealth, had never been acted on.4 The two UK Bills on literary and artistic copyright that had provided the basis for much of the drafting of the Copyright Act 1905 had never been passed into formal law. However, it was clear that many amendments would be needed in order for the United Kingdom to comply with the latest revision of the Berne Convention.
Subsequently in 1909 the Law of Copyright Committee was convened in the UK,5 with its final report recommending that a plethora of changes be made to English law in order to incorporate the Berne revisions. These included an extension of the term of copyright and the removal of formalities for copyright protection.6 Following this report, in 1910, representatives from the British dominions met in the United Kingdom for an Imperial Copyright Conference to gather colonial opinions on the proposed changes. The Imperial Copyright Conference had similar terms of reference to its national predecessor, but with a further view ‘to obtain uniformity of legislation as
1 Revised Berne Convention for the Protection of Literary and Artistic Works of November 13, 1908. See also Catherine Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (2006) 289-290. 2 See, eg, Literary Copyright Act 1842 (UK) 5 & 6 Vict, c 45; Lectures Copyright Act 1835 (UK) 5 & 6 Wm IV,c 65; and Fine Art Copyright Act 1862 (UK) 25 & 26 Vict, c 68. 3 Report of the Royal Commission on Laws and Regulations Relating to Home, Colonial and Foreign Copyrights (1878, c 2046). 4 See Chapter Four Part I above. 5 Report of the Committee on the Law of Copyright, Cd 4976 (1909) 1. 166 regards copyright throughout the British Empire.’7 Lord Hallam Tennyson,8 the second Governor-General of Australia and son of famed British poet, Alfred Tennyson, represented Australia.9 Australia supported the resolutions of the conference, proposing an extension of the term of copyright (Resolution 7), ratification of the Berne Convention (Resolution 1), the abolition of formalities (Resolution 8), and the inclusion architecture within the realm of copyright (Resolution 9).
It took only another year before a new copyright law was introduced in the United Kingdom10 and, a year after that, this English statute became Australian law. Section 8 of the Copyright Act 1912 (Cth) read:
The British Copyright Act, a copy of which is set out in the Schedule to this Act, shall, subject to any modifications provided by this Act, be in force in the Commonwealth, and shall be deemed to have been in force therein as from the first day of July, One thousand nine hundred and twelve.11
Few copyright scholars, either in Australia or abroad, have considered the introduction or provisions of the longest-running copyright statute in force in Australia since Federation, the Copyright Act 1911 (Imp).12 It does not appear that the Australian Parliament was in any way forced to introduce this UK statute, a point that was reiterated throughout the passing of the Copyright Act 1912.13 Burrell, in the most
6 The current English position was described as ‘anomalous, uncertain, and productive of great disadvantage and annoyance to authors with little or no advantage to the public’: see Report of the Committee on the Law of Copyright, Cd 4976 (1909) 12. 7 Imperial Copyright Conference, 1910 – Memorandum of the Proceedings, Cd 5272 (1910) 5. 8 Roma D. Hodgkinson, ‘Tennyson, Hallam (1852 - 1928)’, Australian Dictionary of Biography (Online Edition) available at
It is not the purpose of this Chapter, however, to consider why Australia adopted the 1911 statute, but rather the impact of its provisions of the shape and boundaries of Australia’s public domain while this Act was in force. A recurring issue throughout this Thesis has been the need to consider the distinctiveness of Australian considerations from those of other jurisdictions, in order to discover the precise nature of Australia’s public domain and if and why it mattered. On that basis, over the previous two Chapters colonial and early post-Federation copyright laws have been carefully considered from an Australian perspective, despite the British influence on both laws. In this Chapter,
respect to self-governing dominions, of which the Commonwealth of Australia was one, pursuant to section 35(1) of the Act. 14 Robert Burrell, ‘Copyright Reform in the Early Twentieth Century: The View from Australia’ (2006) 27 Journal of Legal History 239, 257-264. See also Benedict Atkinson, The True History of Copyright: The Australian Experience 1905-2005 (2007) 94-97. Atkinson argues that ‘pragmatic reasons’ were behind Australia’s adoption of the Copyright Act 1911: at 95. 15 For example, Burrell notes the ‘divided loyalty’ that many figures of Australia’s early Federal governments felt regarding Britain and Australia. A number had been born in England and then migrated to Australia, as was the position for many Australian residents before, during and after this period: see Burrell, above n 14, 257-258. As Schreuder and Ward note in a recent examination of this period of Australia’s history, ‘To earlier generations of Australians, ‘Empire’ was a key conceptual anchor of their identity and security in a fast-expanding world of modernity. To some it even remained ‘home’ well into the twentieth century’: see Deryck M Schreuder and Stuart Ward, ‘Introduction: What Became of Australia’s Empire’ in Deryck M Schreuder and Stuart Ward, Australia’s Empire (2008) 1, 2. 16 Atkinson also notes the privileged position of British publishers in Australia: see Atkinson, above n 14, 77, 106-108. 17 Martyn Lyons, ‘Introduction’ in Martyn Lyons and John Arnold (eds), A History of the Book in Australia 1891-1945: A National Culture in a Colonised Market xiii, xviii. 168 however, it is impossible to evaluate Australia’s public domain between 1912 and 1967 without reference to English law.
This Chapter evaluates the nature of Australia’s public domain under the 1911 UK and 1912 Australian statutes.18 It adopts the structure of Chapters Four and Five and as such three public domain issues will be considered:
A. The rights granted; B. The terms of protection; and C. Additional public domain features.
In the first two categories, two types of works will be evaluated: literary works and artistic works. In the latter category, lectures and works disqualified from copyright protection due to immorality or other legal reasons will be analysed. Within each discussion, both the legislation and any local case law evaluating the applicable provisions will be considered: as this Chapter will illustrate, in contrast to the 1905 statute, there was no lack of interpretation of the provisions of the 1911 Act.
II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACTS 1911 AND 1912
A. THE RIGHTS GRANTED
i. LITERARY WORKS
In contrast to the 1842, colonial and 1905 copyright statutes, the 1911 Act used the phrase ‘literary work’, as opposed to the term ‘book’. This was the first of a number of differences imported into Australia by the adoption of the 1911 English law. Section 35(1), the interpretation provision of the 1911 statute, defined the term ‘literary work’ to include ‘maps, charts, plans, tables and compilations’. This non-exhaustive definition was less specific than the term ‘book’ as it appeared in the colonial and 1905 Acts. Consequently, as local case law (discussed in greater detail below) illustrates, the phrase ‘literary work’ was interpreted as encompassing a wide range of printed creations.
18 It should be noted that during the period the 1912 Act was law, several amending statutes were passed affecting its provisions: see Copyright Act 1933 (Cth); Copyright Act 1935 (Cth); Statute Law Revision Act 1950 (Cth); Copyright Act 1963 (Cth). Any changes to the Commonwealth or Imperial law by these statutes will only be mentioned where relevant. 169 Pursuant to section 1 of the 1911 Act, copyright subsisted in every original literary work throughout the British dominions in two instances:
A. in the case of a published work, where the work was first published in His Majesty’s dominions;19 B. in the case of an unpublished work, where, at the date of the creation, the author was a British subject or resident in the British dominions.20
This was the first time that an Australian or UK copyright law provided statutory protection for unpublished works, finally removing such creations from the realm of the common law.21 As was the position under the colonial and 1905 legislation (and also dictated by the Berne Convention by that time),22 registration was not required for the subsistence of copyright.23
In contrast to the Copyright Act 1905, where there was no judicial consideration of the provisions of that statute, a plethora of Australian case law emerged with respect to one key aspect of the Copyright Act 1911: what constituted an ‘original literary work’ for the purposes of section 1. This was the first time that an Australian or UK copyright statute included a requirement that a literary creation needed to be original in order to receive copyright protection.24 Given that this was a precondition to the subsistence of
19 Copyright Act 1911 (Imp) s 1(1)(a). ‘Publication’ was further defined in section 1(3) as the ‘issue of copies of the work to the public’. 20 Copyright Act 1911 (Imp) s 1(1)(b). 21 Section 31 of the Copyright Act 1911 (Imp) stated that: No person shall be entitled to copyright or any similar right in any literary, dramatic, musical, or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence. See also Commonwealth of Australia, Parliamentary Debates, Senate, 5 October 1911, 1107 (Senator John Keating); J.M. Easton, The Law of Copyright (5th edition, 1915) 24-26; Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49, 55. 22 Article 4 of the Revised Berne Convention for the Protection of Literary and Artistic Works of November 13 1908 read in part: ‘The enjoyment and the exercise of any of these rights shall not be subject to any formality’. 23 Under the Copyright Act 1912 registration only became an issue where the copyright owner sought to pursue certain remedies for infringement: see Copyright Act 1912 (Cth) s 26. These remedies were provided in sections 15, 16 and 17 of the Copyright Act 1912. 24 For example, in Robinson v Sands & McDougall Pty Ltd Barton J noted that ‘Originality was not expressly required by the English Act of 1842.’: (1916) 22 CLR 124, 131. His Honour did not, however, note that the same was true under the colonial or 1905 statutes. See also Easton, above n 21, 49-52. 170 copyright, if a work did not meet the originality requirement of section 1, copyright protection would be denied and the work would technically enter the public domain.
From the cases decided during this period concerning what constituted an ‘original literary work’ it possible to distil several points regarding Australia’s public domain. First, it was rare for Australian courts to deny protection to literary works under the 1911 statute. As Ricketson notes, the Australian judiciary being left to interpret originality ‘led to the courts setting the level of originality at a rather lower level than under other national copyright laws, with the consequence that a wide array of subject matter has been accorded protection.’25 In evaluating this issue for the purposes of the subsistence of copyright, courts considered both the standard or originality and the idea/expression dichotomy, two public domain issues that I identified earlier in Chapter One.26 Although these are distinct issues, originality and the idea/expression dichotomy were often treated as inter-related. Where a work did not meet the threshold of originality set by a court it would not be protected; in a similar vein, a court would only protect the expression of a work and not the underlying facts or ideas.
Early cases on originality and the idea/expression dichotomy set the standard for how the courts, at all levels, would treat these issues while the 1912 Act was in force. However, these cases did not address particularly new or difficult conceptions of ‘original literary works’. The first opportunity that the judiciary had to consider what constituted an ‘original literary work’ concerned a map. The defendant in Robinson v Sands & McDougall Pty Ltd27 (‘Robinson’) argued that maps created by the plaintiff were not suitably original to warrant copyright protection.28 Given that maps were included in the definition of a ‘literary work’ in section 35(1), such a case would have been difficult to establish. As Barton J, who presided over the decision in a single-judge capacity in the High Court, noted:
It is true that practically everything conveyed in the plaintiff’s map was in existence before its publication in sources from which everything presented in the map had been derived. No man can invent a map, the office of which is to present things ascertained, and in a sense it is difficult, if not impossible, to say that any fresh map is original. But
25 Sam Ricketson, ‘The Concept of Originality in Anglo-Australian Copyright Law’ (1991) 9(2) Copyright Reporter 1, 2. 26 See Chapter One Part II Section A (iv) and (v) above. 27 (1916) 22 CLR 124. 28 Robinson (1916) 22 CLR 124, 131. 171 it would be a long step to say that therefore no map could be the subject of copyright. Nor is it necessary to produce something which will be striking to the eye.29
The Robinson decision was appealed and subsequently considered before a three-justice panel of the High Court. Isaacs J, delivering the opinion of the High Court, Sands & McDougall Pty Ltd v Robinson30 (‘Sands’), again considered the issue of originality in the plaintiff’s maps. His Honour noted that the plaintiff had ‘unquestionably prepared it [the map] by taking the common stock of information in Australia and, applying it to personal, that is, independent, intellectual effort in the exercise of judgment and discrimination, had produced a map that was new’.31 The defendant, however, still argued ‘that a work must now [under the 1911 Act] be original in the same sense that an invention must be novel’32 and that the plaintiff was therefore not an ‘author’ within the meaning of the statute. In defining the term ‘original work’ under the Act, Isaacs J adopted the phraseology of Lord Eldon in Wilkins v Aikin:33 ‘a mental operation deserving the character of an original work.’34 The decision ultimately went in favour of the plaintiff.
Four years later, in Blackie & Sons Ltd v The Lothian Book Publishing Co. Pty Ltd (‘Blackie’),35 the High Court again reviewed the originality of another form of literary work that was not new: an annotated edition of a public domain work, Shakespeare’s The Life of King Henry the Fifth. However, unlike previous decisions, the argument was not couched in terms of originality, but instead in the language of the idea/expression dichotomy. Consideration of this issue emerged at two stages: whether copyright subsisted in the work and, if so, whether the defendant had infringed this copyright.
In the first instance, Starke J stated that although the annotated edition drew upon ‘materials [that] are well known to Shakespearian scholars, and are, in the main, sources of information open to all men’,36 this did not preclude copyright protection. However, the more difficult question was whether the plaintiff’s work had been infringed. His
29 Robinson (1916) 22 CLR 124, 133. 30 (1917) 23 CLR 49. 31 Sands (1917) 23 CLR 49, 52. 32 Sands (1917) 23 CLR 49, 53. 33 (1810) 34 ER 163. 34 Sands (1917) 23 CLR 49, 55-56. 35 (1921) 29 CLR 396. See also Finn v Pugliese (1918) 18 SR (NSW) 530, 533; Meccano Ltd v Anthony Hordern & Sons Ltd (1918) 18 SR (NSW) 606. 172 Honour noted that ‘the plaintiff has not acquired the right to the materials which were commons sources of information…The defendant was free to use common materials’.37 Thus the issue in question was ‘whether the defendant’s book or any substantial part thereof was copied from the plaintiff’s book, or whether it was the result of independent labour or research and a resort to other sources of information that were open to all…?’38 Ultimately, Starke J found that infringement had occurred.
Further, and arguably more importantly for the purposes of a discussion of Australia’s public domain, Starke J also noted that
And for the purpose of this examination I took it to be clear that, as to literary works, the object of the Copyright Act is not to accord protection to ideas but to the particular form of expression in which an author conveys his ideas or information to the world. (See Hollinrake v. Truswell; University of London Press Ltd. v. University Tutorial Press Ltd.; Copinger on Copyright, 5th ed., p. 2.)39
This type of reasoning was adopted in later decisions on these issues, albeit with various results. Subsequent decisions were divided: while all recognised the idea/expression dichotomy and the originality needed for copyright to be found to subsist, courts in different jurisdictions around Australia would often find different results in cases based on similar facts.
Indeed, the majority of Australian cases on what constituted an ‘original literary work’ for the purposes of the Copyright Act 1911 concerned a quite limited publishing niche: horse racing information and programs.40 Between 1925 and 1947 Australian courts decided seven cases where the plaintiff claimed copyright protection in horse racing information. This highlights the second issue that cases on originality revealed about Australia’s public domain during this period: the type of information that was considered valuable and thus worth protecting by copyright and keeping from the public domain.
36 Blackie (1921) 29 CLR 396, 398. 37 Blackie (1921) 29 CLR 396, 399. 38 Blackie (1921) 29 CLR 396, 399. 39 Blackie (1921) 29 CLR 396, 400. 40 But see Real Estate Institute of NSW v Wood (1923) 23 SR (NSW) 349 (whether a compilation of information for the sale of land constituted an original literary work); Sampson v Brokensha & Shaw Ltd (1935) 37 WALR 90 (compilation was not an original work as there was ‘no peculiar labour, skill or experience involved’: at 92). 173 As this Thesis has illustrated, at numerous points in the history of the public domain, certain categories of information and facts that were considered to hold particular value and subsequently either a copyright statute or case law protected such information. For example, as discussed in Chapter Four, in Victoria, South Australia, Western Australia, and Tasmania statutory protection was given to all information conveyed to those colonies via a telegraphic message.41 At that time, general news information was expensive to obtain and so both the legislature – and subsequently the courts – provided copyright protection for the acquisition of such information via telegram.42 However, by the early 1920s, a particular niche of valuable information had emerged, with a number of plaintiffs going to court to use copyright to protect this asset and keep it from the public domain: horse racing information.
When viewed against the development of the racing industry in Australia this is not particularly surprising as horse racing and gambling had been a popular pastime since the early days of the colonies.43 Marcus Clarke’s first novel, Long Odds, in part concerned horse racing, although Clarke was criticised for being ‘no authority on racing, in a country where racing was taken very seriously.’44 Indeed, in 1914 popular Australian author Banjo Patterson wrote in an Australian ‘Declaration of Independence’: ‘All men are born free and equal; and each man is entitled to life, liberty and the pursuit of horse racing.’45 Horse racing became a prominent pastime in the 1920s and 1930s, as it was during this period that one of Australia’s most iconic sporting figures – Phar Lap – dominated races and headlines in Australia and abroad. Phar Lap’s success at the Melbourne Cup (a race held in Melbourne, Victoria, that is today still described as ‘the race that stops a nation’) in 1930 further stoked the
41 The Telegraphic Messages Copyright Act 1871 (Vic), 35 Vict no 414; The Telegram Copyright Act 1872 (SA), 35 & 36 Vict no 10; The Telegram Copyright Act 1872 (WA), 36 Vict no 7; The Newspaper Copyright Act 1891, 55 Vict no 49. 42 See generally Chapter Four Part II Section A(iii) above. 43 See Wayne Peake, Unregistered proprietary horse racing in Sydney 1888-1942 (PhD Thesis, University of Western Sydney, 2004) 29-42. 44 Brian Elliott, Marcus Clarke (1958) 119. 45 A.B. Patterson, quoted in David Headon, ‘Given by God, Sport of Kings, or A Mug’s Game: Horse Racing in Australian Literature’ (1988) 5(1) Sporting Traditions: The Journal of the Australian Society for Sports History 30, 30
Thus, in an industry that made its money based on the fluctuation of odds, starting times, and horse weights, these types of basic information held significant commercial value. As noted by Wolff J in one of the later decisions on horse racing information, Winterbottom for the Western Australian Turf Club v Wintle:48
To conduct a race club it is necessary, amongst other things, to compile and keep an elaborate system of records of horses, form, pedigree, and to administer rules relating to the eligibility of owners, trainers, and the qualifications of horses for entry to races; to fix the conditions of entry for races, the details of the race, stakes, and suchlike.49
Plaintiffs sought to invoke copyright to protect this information from reproduction by rival clubs and competitors – and the concurrent effect of this was to keep such information out of Australia’s public domain. The first case on horse racing information, Smith’s Newspapers Ltd v The Labor Daily (Smith’s Newspapers),50 featured predictions of the winners of a number of horse races, published in the plaintiff’s newspaper. The day after these predictions were printed, the defendant would include the selection in its own newspaper, as a point of comparison with the predictions made by other metropolitan newspapers.51 The plaintiff claimed that this was an infringement of copyright; however, Harvey CJ in Eq found that ‘what the plaintiff is trying to protect in this case is the opinion expressed and not the form of words in which the opinion is expressed.’52
46 See, eg, ‘The Melbourne Cup – Phar Lap’s Stupendous Task’, The Argus, 3 November 1930, 9
Interestingly, the exception to this trend was the oft-cited decision of the High Court in Victoria Park Racing and Recreations Grounds Co Ltd v Taylor58 (‘Victoria Park’), where the plaintiff argued that the defendant had infringed its copyright. This argument puzzled the High Court as the various Justices could not ascertain precisely what had been infringed. Both Latham CJ and Dixon J considered whether there was copyright in the plaintiff’s race book and racecourse boards.59 However, as Latham CJ concluded, ‘copyright does not operate to give any person an exclusive right to state or describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.’60 This
53 (1932) 49 WN (NSW) 27. 54 (1932) 49 WN (NSW) 102. 55 [1934] SASR 87. 56 (1936) 37 SR (NSW) 322 (Supreme Court of New South Wales); (1937) 58 CLR 479 (High Court of Australia). 57 See Canterbury Park Race Course Co Ltd v Hopkins (1932) 49 WN (NSW) 27, 28; Moorefield Race Club Ltd v Longfield (1932) 49 WN (NSW) 102, 102; Mander v O’Brien [1934] SASR 87, 91-92; Winterbottom for the Western Australian Turf Club v Wintle (1948) 50 WALR 58, 67. 58 (1937) 58 CLR 479. On the issue of copyright and the Victoria Park decision, see Jill McKeough, ‘Horses and the law: the enduring legacy of Victoria Park Racing’ in Andrew T. Kenyon, Megan Richardson and Sam Ricketson (eds), Landmarks in Australian Intellectual Property Law (2009) 53, 61-66. 59 Victoria Park (1937) 58 CLR 479, 497-498 per Latham CJ; Dixon J at 510-511. 60 Victoria Park (1937) 58 CLR 479, 498. See also John Fairfax & Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 413 (an injunction would only be available to a newspaper ‘on the basis of infringement of copyright, for a newspaper can have no exclusive right to the dissemination of items or news or events published by it’: see (1960) SR (NSW) 413, 414.); Inala Industries Pty Ltd v Associated Enterprises Pty Ltd (1960) Qd R 562, 569-571 (copyright subsisted in engineering plans, despite the fact that ‘[n]one of the ideas represented in the drawings were novel in the sense that they had been conceived by Day or by the plaintiffs for the first time.’: at 570); 176 statement by Latham CJ provides a nice contrast to the other cases that emerged during this period and a reminder from the High Court that, under Australian copyright law, facts, information and ideas constituted part of Australia’s public domain.
Third, it is also important to note that in these cases the judiciary appeared to have forgotten that there were numerous copyright laws in operation in Australia (or, more precisely, the non-federated colonies of Australia) prior the 1912 Act. There were no references in these decisions to any previous colonial or federal copyright statute.61 Therefore the pre-1912 public domain made no appearance in the judicial considerations of the 1911 and 1912 Acts. This is particularly noteworthy given a point that I discussed in both Chapters Four and Five: how, generally, there were no policies underpinning legislative decisions that either expressly or impliedly affected the public domain pursuant to either the colonial or 1905 legislation. The same may be said for the judiciary: although this case law affected the shape and boundaries of Australia’s public domain, there was no reference to how it had previously been treated or considered.
Turning to the exclusive rights of the owner of the copyright in an ‘original literary work’, section 2 of the Copyright Act 1911 defined the term ‘copyright’ as ‘the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever.’ In the case of unpublished works copyright was defined as the exclusive right ‘to publish the work or any substantial part thereof’.62 Copyright also included the ‘sole right’ to do the following acts, or to authorise their undertaking:
A. To ‘produce, reproduce, perform or publish any translation of the work’;63 B. ‘to convert it into a dramatic work, by way of performance in public or otherwise’;64 and C. ‘to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered’.65
Australian Consolidated Press Ltd v Morgan (1965/1966) 39 ALJR 32, 34 (‘…the law does not give any proprietary right to knowledge or information. Under the laws of copyright, the literary form in which knowledge or information is conveyed or cast may be the subject of copyright’: at 34). 61 In Australian Consolidated Press v Morgan Barwick CJ made reference to T M Hall & Co v Whittington & Co (1892) 18 VLR 525, a decision of the Supreme Court of Victoria discussed above in Chapter Four: see (1965/1966) 39 ALJR 32, 34. 62 Copyright Act 1911 (Imp) s 1(2). 63 Copyright Act 1911 (Imp) s 1(2)(a). 64 Copyright Act 1911 (Imp) s 1(2)(c). 177
Infringement of these rights occurred where a person undertook one of the preceding acts without the permission of copyright owner.66
Although this was the first time that the first two exclusive rights listed above – translation and dramatisation – had been incorporated into a UK copyright statute, both had been included in the Copyright Act 1905 and therefore neither was new to Australian law or changed the boundaries of Australia’s public domain.67 However, the final right was new and took account of technological developments: ‘any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.’ Such a right was not included in the 1905 statute given that mechanical reproductions had not developed sufficiently to dictate the need for this type of copyright.68
The introduction, however, of the right to make a cinematograph film based on an existing literary work was particularly timely, as by 1912 a budding feature film industry had begun to develop in Australia and a number of cinematic adaptations of literary works had already been released.69 The first full-length feature film ever created, The Story of the Kelly Gang, had been made entirely in Australia and opened in late 1906.70 Running at nearly 60 minutes and spread over six reels, the film explored the exploits of infamous Australian bushranger Ned Kelly, who had been hung only 26
65 Copyright Act 1911 (Imp) s 1(2)(d). 66 Copyright Act 1911 (Imp) s 2(1); see also section 2(2) for other types of infringement not relevant to the current discussion. 67 See Chapter Five Part II Section A(i) above. 68 Commonwealth of Australia, Parliamentary Debates, Senate, 18 October 1911, 1513 (Senator John Keating). 69 See also Burrell, who notes with surprise that the Federal Parliament did not include such a right in the Copyright Act 1905, given the state of film adaptations of popular literary works by that time: Burrell, above n 14, 252-253. Yet as the discussion following this footnote considers, feature film production did not commence in Australia until 1906. 70 See generally Ina Bertrand, ‘The Story of the Kelly Gang’ in Geoff Mayer and Keith Beattie, The Cinema of Australia and New Zealand (2007) 11-18. The Australian film industry itself was pioneered by the Salvation Army’s Limelight Department who, between 1892 and its eventual closure in 1910, produced a range of both religious and secular films: see Albert Moran and Errol Vieth, Historical Dictionary of Australian and New Zealand Cinema (2005) 32. This included the mammoth series of thirteen short films titled Soldiers of the Cross in 1900: see Andrew Pike and Ross Cooper, Australian Film 1900 – 1977: A Guide to Feature Film Production (2nd ed, 1998) 4-5. During the 1910s the Australian film industry continued to grow; as Moran and Vieth note, in the period 1910-1912 alone, ‘almost 90 narrative films were made…[f]rom 1906 to 1911, the Australian industry made more of these films than anywhere else’: Vieth and Moran (2005) 32. Thus by the introduction of the Copyright Act 1912 and the ‘mechanical performance’ right pursuant to the Copyright Act 1911, Australia was arguably producing more films than any other country. 178 years earlier in 1880.71 The Story of the Kelly Gang was followed shortly after by the production of films based on local novels including Rolf Boldrewood’s Robbery Under Arms in 1907 and two films based on For the Term of His Natural Life: a silent version, For the Term of His Natural Life, and another, The Life of Rufus Dawes in 1908 and 1911 respectively.72 The introduction of a right to make a cinematograph film of a literary work – and thus the removal of such a right from the public domain – was therefore timely in light of film industry developments in Australia by 1912. It is important to note though that, despite the fact that an author had the right to convert his or her literary work into a cinematograph film, there was confusion as to what provisions of the Copyright Act 1911 protected the subsequent cinematograph film adaptations, though this issue will not be considered here.73
Finally, the Copyright Act 1911 also specified a number of actions that did not constitute an infringement of copyright, similar to section 28 of the 1905 Act discussed in Chapter Five.74 The following actions were excluded from infringement:
A. fair dealing of a literary work ‘for the purposes of private study, research, criticism, review, or newspaper summary’;75 B. ‘publication in a collection, mainly composed of non-copyright matter, bonâ fide intended for the use of schools…of short passages from published literary works’, so long as certain conditions were met;76 and C. ‘reading or recitation in public by one person of any reasonable extract from any published work.’77
For the public domain purposes of this Thesis, it is notable that the 1911 Act used the term ‘non-copyright matter’ in section 2(1)(iv). No definition of this phrase was given
71 See ‘The Story of the Kelly Gang (1906) – Australian Screen’
ii. ARTISTIC WORKS
Section 35(1) of the Copyright Act 1911 included ‘works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs’. A number of these terms were given more extensive definitions. For example, an ‘architectural work of art’ was defined in part as ‘any building or structure having artistic character or design…or any model for such building or structure’. This was the first time that architectural works were included in a UK copyright statute, an addition that was required by the Berlin revision of the Berne Convention.79 Although architectural works of art will not be considered in any great detail here, for the purposes of this Thesis its inclusion was a significant change as, for the first time, buildings80 were protected under copyright law and thus this category of creation removed from the public domain. Works of architecture were no longer a part of Australia’s public domain; the same may be said for ‘works of artistic craftsmanship’.
Pursuant to section 1, copyright subsisted in an original, published artistic work upon first publication81 or in an unpublished artistic work at the date of creation.82 Aside from the new protection for architectural works of art and works of artistic craftsmanship, the 1911 Act provided similar rights that had been granted to the owners of copyright in artistic works under the colonial or 1905 statutes, with one notable exception. Section 1(2) granted the ‘sole right to produce or reproduce the substantial work thereof in any material form’ and to authorise such reproductions. However, section 1(2)(c) stipulated an unusual right that many may not have realised was in the
78 L C F Oldfield, The Law of Copyright (1912) 51. 79 Revised Berne Convention for the Protection of Literary and Artistic Works of November 13 1908 Art 2. 80 Plans for buildings would have been protected as ‘drawings’ under previous copyright statutes. For example, section 2 of the Copyright Act 1869 (Vic) stated that ‘the words “drawing and painting” shall mean and include every drawing and painting made in any manner and material and by any process’: see 33 Vict no 350 s 2. However this was the first time that copyright protected the completed, constructed buildings. 81 Section 1(3) further provided that ‘publication’ did not include ‘the exhibition in public of an artistic work’ or ‘the construction of an architectural work of art’. 82 Copyright Act 1911 s 1(1). 180 public domain prior to the 1911 Act: the exclusive right to convert an artistic work ‘into a dramatic work, by way of performance in public or otherwise’.
Oldfield, in his 1912 annotated UK text, argues that section 1(2)(c) was ‘probably meant to cover exhibitions of tableaux vivants’83 and there are merits to such a suggestion. Tableaux vivants, the French phrase for ‘living pictures’ were a popular pastime prior to the 20th century, held either privately or publicly for profit, including in Australia.84 Artistic works would be re-created with living individuals standing in for figures depicted in the artworks.85 In terms of the legal consequences of such creations, in the UK decision Hanfstaengl v Empire Palace86 it was held that tableaux vivants did not infringe the copyright in the pictures that the tableaux were based upon.87 However, Easton suggests that section 1(2)(c) was not directed at tableaux. He argues that, given the definition of ‘performance’ in section 35(1) as ‘any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument’, tableux would not be covered.88 Easton further suggests ‘that there can be no “performance” of a work within the meaning of the Copyright Act if there is an absence of both words and action’89 and tableux involved neither words nor action. Whatever the effect of section 1(2)(c), it technically removed a right from the public domain that many would not have realised was a part of the public domain to begin with: the right to convert an artistic work into a dramatic work.
Infringement of the preceding rights occurred where a person undertook one of the ‘sole rights’ of the copyright owner,90 although section 2(1) also specified certain public rights. As section 28 of the Copyright Act 1905 applied only to the reproduction of books, these were the first exceptions to infringement for the reproduction of artistic works:
83 Oldfield, above n 72, 42; Easton, above n 21, 143-144. 84 See Anita Callaway, Visual Ephemera: Theatrical Art in Nineteenth-Century Australia (2000) 72-84. 85 See, eg, Mary Chapman, ‘“Living Pictures”: Women and Tableaux Vivants in Nineteenth-Century American Fiction and Culture’ (1996) 18(3) Wide Angle 22. 86 Hanfstaengl v Empire Palace [1894] 2 Ch 1. 87 [1894] 2 Ch 1, 5-6. 88 Easton, above n 21, 186. 89 Ibid. 90 See also Copyright Act 1911 (Imp) s 2(1)(ii), (2) for other types of infringement not relevant to the current discussion. 181
A. To make ‘[a]ny fair dealing’ of an artistic work, for the specified statutory purposes;91 and B. To make or publish paintings, drawing, photographs of sculptures or works of ‘artistic craftsmanship’, if such sculptures or works were in a ‘public place or building’ or to do the same of architectural works of art.92
The subsistence of copyright and the rights of the owner of such copyright in an artistic work were considered in Cuisenaire v Reed93 and Beck v Montana Constructions Pty Ltd.94 In Cuisenaire v Reed, the plaintiff was a Belgian resident who had created a method for educating primary school children on the basics of arithmetic. In 1952 he published a book titled Les Nombres en Couleurs and in conjunction sets of 241 réglettes, or rods, that were different colours and lengths and a main aspect of instruction.95 In 1958 the Cuisenaire Company of Australia Ltd was formed as the licensee and distributor of the materials in Australia.96 However, in 1959, the defendant also began to manufacture the rods. The plaintiff sued for copyright infringement on four counts: in two of these he claimed the defendant had infringed his artistic copyright in the rods themselves.
Pape J considered the construction of the term ‘artistic works’ under the Copyright Act 1911 and, more specifically, whether the rods could be described as works of artistic craftsmanship under that interpretation. His Honour answered this question in the negative, employing the idea/expression dichotomy in his reasoning: ‘[n]o doubt the idea of using such tools or counters was arrived at after considerable original thought, but copyright does not extend to protect ideas.’97 Pape J further stated that:
The very fact that the author of this so-called artistic work is said to be the plaintiff seems to me to go far to establish that in reality what is sought to be achieved in this action is the protection of the idea behind the plaintiff'’s system of teaching mathematics for the duration of his life and a period of fifty years from his death. If this box of rods is an artistic work or a work of artistic craftsmanship, then, as I have
91 Copyright Act 1911 (Imp) s 2(1)(i). 92 Copyright Act 1911 (Imp) s 2(1)(iii). 93 [1963] VR 719. 94 (1964) 80 WN (NSW) 1578. 95 Cuisenaire v Reed [1963] VR 719, 721. 96 Cuisenaire v Reed [1963] VR 719, 722. 97 Cuisenaire v Reed [1963] VR 719, 731. 182 already pointed out, it is the artistic work itself, and not the idea behind it, which is entitled to protection.98
Two years later, Jacobs J considered the subsistence of copyright in architectural plans in Beck v Montana Constructions Pty Ltd. In that case, the plaintiffs were two architects who had drawn up plans of home units for the owner of a block of land that was subsequently sold, with the original plans attached to the sale. The purchaser, named as the first defendant, had then commissioned a second set of architects, the second defendant to the proceedings, who it was claimed infringed copyright in the first set of architectural plans. Ultimately, Jacobs J found that infringement had occurred but an implied licence existed that gave both defendants permission to copy the plans.99 However, in obiter, Jacobs J made a number of comments noteworthy to a public domain discussion:
It is clear I think that the degree of protection of an architectural plan must of its nature be very limited and it seems to me that one of the reasons for the severe limitation in the degree of protection under the law of copyright is that in an architectural plan more than any other forms of literary or artistic production there is a greater element which may be described as common to all plans and that the particular portion of the plan which may be regarded as belonging to the owner of the copyright, the particular features of it and of the expression must consequently be more limited.100
The comments of Pape and Jacobs JJ are significant for Australia’s public domain for two reasons. First, the repeat adoption by both judges of the idea/expression dichotomy indicates its application beyond the context of literary works. An author could not claim that his or her creation was an ‘artistic work’ where all that he or she was attempting to do was claim copyright in an idea. Second, it is arguable that these comments also suggests that the judiciary may be reluctant to grant copyright protection where a plaintiff does not deserve such protection, with Pape J identifying one reason being the extensive term of copyright protection, discussed in greater detail in Part B below. In a similar vein, the comments made by Jacobs J illustrate a reluctance to grant copyright protection to one person in an industry where individuals regularly used aspects that are ‘common to all plans’: that is, public domain aspects. However, as Chapter Seven will illustrate, later decisions on architectural copyright recognised this distinction but failed to maintain it to any substantial degree.101
98 Ibid. 99 Beck v Montana Constructions Pty Ltd (1964) 80 WN (NSW) 1578, 1580-1581. 100 Beck v Montana Constructions Pty Ltd (1964) 80 WN (NSW) 1578, 1580. 101 See Chapter Seven Part II Section A(ii) below. 183
iii. CONCLUSION
This section has revealed a number of issues regarding the nature and significance of the public domain under the 1911 and 1912 statutes.
First, two new rights were introduced under the Copyright Act 1911, one for the owner of the copyright in a literary work, and the other for the owner of the copyright in an artistic work. The owner of the copyright in a literary work was granted a new exclusive right to convert the literary work into a record, or convert it into a cinematograph film. The owner of the copyright in an artistic work was granted an additional exclusive right to convert the artistic work into a dramatic work. The grant of an exclusive right to undertake these two actions highlighted the fact that, previously, these actions had been a part of the public domain. However, it was arguably only the first action – the ability to convert an literary work into a cinematograph film without any legal repercussions – that was of any benefit to the public when this was in the public domain.
Second, the judiciary set a low standard for what constituted an ‘original literary work’. However, in determining the standard of originality for both literary and artistic works, the judiciary invoked an oft-cited public domain doctrine: the idea/expression dichotomy, thus confirming its existence under Australian copyright law.
Third, copyright case law that emerged under the Copyright Act 1911 in Australia illustrated what was considered to be valuable information during this period: horse racing information. Race club proprietors therefore endeavoured, most often successfully, to rely on copyright to protect this information and it was subsequently kept out of the public domain. This continued a theme established in Chapter Four: copyright law being invoked to protect information considered valuable at that time and this information providing an exception to the doctrine that information is in the public domain.
Fourth and finally, protection for unpublished literary works was incorporated into statute. Although this did not affect the public domain to any significant degree as common law copyright previously protected unpublished creations, protection for these
184 works was finally included in a statute, removing any doubt as to whether these works would ever enter the public domain.
B. TERMS OF PROTECTION
i. LITERARY WORKS
One of the major changes to both Australian and UK copyright law under the Copyright Act 1911 and Copyright Act 1912 was the extension to the term of copyright protection. The term of copyright in the United Kingdom remained, since 1842, at life of the author plus seven years, or 42 years from publication, whichever term was longer, as was the case in Australia under the 1905 Act.102 Yet, for the first time since its creation in 1886, the Berlin revision of the Berne Convention specified a minimum period of protection for creations: ‘life of the author and fifty years after his death.’103 Thus, in order for the UK to comply with the Berne Convention, the existing term of protection required amendment and support for such a change is apparent in comments made by the Law of Copyright Committee, the Imperial Copyright Conference and, later, the Australian Federal Parliament.
In the course of its review, the Law on Copyright Committee questioned witnesses as to their opinion on the proposed term extension, with the vast majority – mainly author and publisher groups - favouring an increased term.104 The only witness who believed such a term extension was ‘unreasonable’105 was Harry Vane Stow, Secretary to the Federation of Master Printers and representative of the London Chamber of Commerce.106 In the course of giving evidence to the Committee, Stow commented on why a reduced term was important:
My constituents consider the extension unreasonable as being contrary to the interests of the workers in our industry and the declared public interest on the dissemination of cheap and good literature. On that point it is important to remember what has been said
102 5 & 6 Vict c 45 (1842), s 3. 103 Revised Berne Convention for the Protection of Literary and Artistic Works of November 13 1908 Art 7. There were some exceptions to this period: each Union member was entitled to determine the length of protection for photographs, posthumous works, and anonymous and pseudonymous works. 104 Report of the Committee on the Law of Copyright, above n 5, 16 -17. 105 Ibid 17. 106 Minutes of Evidence taken before the Law of Copyright Committee, above n 5, [3787], 4 August 1909. 185 so frequently about the advantage of having at the earliest possible time a reprint of any really important literature….107
Charles Dickens’ Pickwick Papers was given as an example of such ‘important literature’ and the ‘public domain’ was explicitly referred to for housing this work.108 The public domain at this time, therefore, continued to be important for the same reasons that I identified in both Chapters Four and Five: publishers would reprint public domain works and sell them cheaply, ensuring that a greater portion of the public would be able to access and read these works. Thus, at this time the purpose of the public domain was quite democratic in nature: the fact that cheap editions could be created from the works embodied in it ensured that a broader audience would get to enjoy and learn from these works. These reflections are similar to the comments made by Australian parliamentarians at the passing of the 1905 Australian Act, extracted above in Chapter Five, further confirming the nature and the importance of the public domain at this time.109
Like the Law on Copyright Committee, the Imperial Copyright Conference also endorsed the term extension.110 As discussed above briefly, Australia’s own representative, Lord Hallam Tennyson, was apparently influential in the adoption of this term – despite the fact that His Lordship had been given explicit instructions to deter any term extension to 50 years post-mortem.111 Given that few authors would benefit from an extended term of copyright in Australia, Lord Tennyson was directly instructed to support a lesser term of protection.112 However, Lord Tennyson did not follow such instructions and, according to Atkinson, prior to the Conference His Lordship pestered Australian officials to allow him to support the proposed extension.113 Yet, His Lordship’s actions during the Conference were arguably more damaging. Seville writes that, in addition to supporting the longer term from the outset of the Conference, Lord Tennyson also produced ‘lists of books which had fallen into the public domain, but
107 Minutes of Evidence taken before the Law of Copyright Committee, above n 5, [3787], Mr. Harry Vane Stow, 4 August 1909. 108 Ibid. 109 See Chapter Five Part II Section B(i) above. 110 Imperial Copyright Conference, 1910 – Memorandum of the Proceedings, Cd 5272 (1910) 7. 111 Reasons for opposing a longer term of protection included the resistance of members of the Federal Parliament to a life-plus-30 term in 1905 and the fact that, given the low number of books published in Australia when compared to the UK, few Australian publishers would benefit from the term: see Atkinson, above n 14, 64. 112 Ibid. 113 Ibid 64-66. 186 would have been profitable to their families with the proposed extension as evidence.114 Marcus Clarke may have been on that list.
It is perhaps ironic then that, during the passing of the Copyright Act 1912 Senator McGregor commented ‘I feel sure that the great majority of the people of Australia would be very well satisfied with his [Lord Tennyson’s] representation at [the Imperial Copyright] Conference’.115 Yet Lord Tennyson’s actions at the Imperial Copyright Conference were in direct opposition to interests of the Australian public and more supportive of the Empire. Indeed, it is worth questioning whether His Lordship was even able to conceive a solely ‘Australian’ public. As illustrated, the benefit of the public domain at this time was that the public could access cheap editions of works. Given that few Australian authors would have profited from the proposed term extension, but the broader Australian public would have benefitted from the entrance of more works into the public domain, the Commonwealth Government requested that Lord Tennyson oppose any term extension. Evidence suggests that His Lordship acted to the contrary.116
By the time the proposed extension reached the Australian Parliament, this Imperial extension received little national criticism,117 in spite of the resistance that members of the Federal Parliament had expressed regarding any change to the term under the 1905 Act.118 This was also the first time the term of protection for literary creations would be changed since the inception of the colonies.
114 Seville, above n 1, 141. 115 Commonwealth of Australia, Parliamentary Debates, Senate, 26 July 1912, 1334 (Senator Gregor McGregor). 116 Although both Atkinson and Seville note the role of Lord Tennyson’s influence on the adoption of the life-plus-50 year period at the Imperial Copyright Conference, Lord Tennyson makes no appearance in Bently’s discussion on the enactment of the term extension. See Lionel Bently, Lionel Bently, ‘R. v The Author: From Death Penalty to Community Service 20th Annual Horace S. Manges Lecture, Tuesday, April 10, 2007’ (2008) 32 Columbia Journal of Law & the Arts 1, 78-81. 117 But see Commonwealth of Australia, Parliamentary Debates, House of Representatives, 30 October 1912, 4864 (Mr Patrick Glynn): I personally take a different view, and it would have been perfectly competent for us to limit the period [of copyright protection] to twenty-five years, thirty years, or forty years, instead of the fifty years arranged, in addition to the life of the author. At the same time, with a view to uniformity, and remembering that the Imperial representatives at the Convention in Berlin in 1908 had discussed these matters elaborately, it was thought inexpedient for the Commonwealth to suggest a shorter period than that adopted in the United Kingdom. 118 See Commonwealth of Australia, Parliamentary Debates, 13 September 1905, 2181-2190. 187 Pursuant to section 3 of the 1911 Act, copyright subsisted in a literary work for ‘the life of the author and a period of fifty years after his death’. Where the work was created through joint authorship, under section 16(1) copyright subsisted ‘for the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer’. In the case of unpublished works that were published posthumously, section 17(1) provided that copyright continued to subsist indefinitely until publication and then for a defined period of 50 years following first publication. Therefore, in the case of unpublished works, the application of perpetual protection until publication (as originally provided under common law) was now incorporated into statute.119 In one of the few Australian articles on copyright law penned prior to the introduction of the Copyright Act 1968 (Cth), Sawer discusses section 17(1) and considers that ‘the possibility of a copyright continuing forever was probably never contemplated by the draftsman of the Copyright Act’.120 This statement was incorrect: the section reflected the previous position under the common law, which the legislative drafters arguably realised was perpetual.
In an attempt to counteract the effects of the term extension, the UK Parliament introduced an unusual exception: pursuant to section 3, following the passing of 25 years, or, where copyright subsisted at the passing of the 1911 Act, 30 years after the death of the author, copyright would not be infringed if a copy of a literary work was made for the purposes of sale, where certain criteria were met, including the provision of notice in a prescribed form and the payment of royalties.121 This compulsory licence was praised in the Federal Parliament by Senator McGregor, who noted that ‘[i]t would be injurious to the interests of the people, however, if, after liberal terms had been given to the owners of copyright, anything were done to prevent the public from getting the advantage of publication of the work.’122 However, the existence of such a provision was injurious to the public, although it was crafted in the name of the ‘public interest’. Under the Copyright Act 1911, a private right was extended (the term of copyright) and
119 This is in contrast to section 7 of the Copyright Act 1905, discussed above in numerous parts of this Thesis. That section provided a reminder that the common law of the United Kingdom protected ‘unpublished literary compositions’, as opposed to providing statutory protection for such creations. 120 Geoffrey Sawer, ‘Copyright in Letters Unpublished At Writer’s Death’ (1966) 3(3) Archives and Manuscripts: The Journal of the Archives Section of the Library Association of Australia 27, 29. 121 See Copyright Act 1911 (Imp) s 3. 122 Commonwealth of Australia, Parliamentary Debates, Senate, 26 July 1912, 1336 (Senator Gregor McGregor); see also Atkinson’s critique of the section 3 proviso in the UK: Atkinson, above n 14, 79- 80. 188 a public right was introduced in an attempt to fulfil a role that had previously been a major part of the public domain: the provision of cheap editions after copyright had expired. Copyright no longer had to expire for the publication of these cheap editions to occur pursuant to section 3.123
Further, by the time that copyright in many of the books entitled to this longer term would expire, technology had developed to allow greater reproduction of works by the individual – the photocopier, the computer, and, in some cases, the advent of the Internet. On that basis, it is arguable that the 1912 term extension is the event that has had the most impact on the history and future of Australia’s public domain. Although, as this Thesis has illustrated, there have been numerous provisions that have had some impact on the boundaries of Australia’s public domain, the term extension under the 1911 Act arguably had the most impact of any single event. Statistics on the duration of copyright confirm such a proposition, illustrating that the impact of the 1912 extension continues even today.
A number of issues must be noted before proceeding. First, given the different ages at which authors could create works it is infeasible to consider the duration of copyright for all works created by males and females at ages 20 through 60 based on the differences in life expectancies between 1912 and 1967. On that basis, two ages have been chosen as examples for each sex – 35 and 45 – and compared against statistical data available from the Australian Bureau of Statistics.
Second, unlike Tables A, D and E, given that the period of protection was static at life of the author and 50 years, this column has been omitted for Tables F (men) and H (women). In its place is an example of the publication year of a book, as a contrast with when that book would enter the public domain.
123 A section 3-style provision was not included in the Copyright Act 1968 (Cth). Indeed, in its 1959 report on Australian copyright law the Spicer Committee recommended the removal of section 3 and deemed its existence incompatible with the Brussels revision of the Berne Convention: Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Chairman Sir John Spicer), Report of the Committee appointed by the Attorney-General to consider what alterations are desirable in the copyright law of the Commonwealth (1959) [60] (hereafter ‘The Spicer Committee’). See also LR Zines, ‘Revision of Copyright Law’ (1963) 37 Australian Law Journal 247, 250. 189 Third, as section 4 of the Copyright Act 1912 repealed the Copyright Act 1905, copyright protection for works initially protected by the 1905 statute transferred to the 1912 Act, thus extending the length of protection for all those works.
Fourth, the following Tables do not take into account the extension of the copyright term under the Australia-United States Free Trade Agreement 2004 and the subsequent US Free Trade Agreement Implementation Act 2004 (Cth). These details can be found in Chapter Seven below.
Fifth and finally, statistics on life expectancies for males and females are only available from the Australian Bureau of Statistics for the periods 1920-1922, 1932-1934, 1946- 1948, 1953-1955, 1960-1962, and 1965-1967. Calculations are therefore given on the basis of these statistics.
190 TABLE F: DURATION OF COPYRIGHT IN LITERARY WORKS PRODUCED BY MALES IN LIGHT OF 124 LIFE EXPECTANCIES IN THE PERIOD 1912-1967
Year Example Expectation of Year of Death Year in Which of Age Additional Years Based on Copyright of Life at that Age Earliest Date Would Expire as Calculation (eg 1920, 1932, etc) 1920 – 1922 35 34.20 1954 2004 1920 – 1922 45 26.03 1946 1996 1932 – 1934 35 35.46 1967 2017 1932 – 1934 45 26.87 1958 2008 1946 – 1948 35 35.79 1981 2031 1946 – 1948 45 26.83 1972 2022 1953 – 1955 35 36.25 1989 2039 1953 – 1955 45 27.18 1980 2030 1960 – 1962 35 36.45 1996 2046 1960 – 1962 45 27.38 1987 2037 1965 – 1967 35 36.04 2001 2051 1965 – 1967 45 26.99 1991 2041
TABLE G: DATE OF PUBLICATION COMPARED WITH EXPIRATION OF COPYRIGHT BASED ON TABLE F
Example Date of Year in Which Complete Duration Publication Copyright Would of Copyright Expire Protection 1. Author is 35 in 1920 2004 84 years 1920; dies in 1954 2. Author is 35 in 1932 2017 85 years 1932; dies in 1967 3. Author is 35 in 1946 2031 85 years 1946; dies in 1981 4. Author is 35 in 1953 2039 86 years 1953; dies in 1989 5. Author is 35 in 1960 2046 86 years 1960; dies in 1996 6. Author is 35 in 1965 2051 86 years 1965; dies in 2001
124 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.2: Life expectancy at single ages (ex), males, Australia, 1881 onwards’, 2008,
Year Example Expectation of Year of Death Year in Which of Age Additional Years Based on Copyright of Life at that Age Earliest Date Would Expire as Calculation (eg 1920, 1932, etc) 1920 – 1922 35 37.28 1957 2007 1920 – 1922 45 28.99 1948 1998 1932 – 1934 35 38.37 1970 2020 1932 – 1934 45 29.74 1961 2011 1946 – 1948 35 39.46 1985 2035 1946 – 1948 45 30.45 1976 2026 1953 – 1955 35 40.67 1993 2043 1953 – 1955 45 31.44 1984 2034 1960 – 1962 35 41.70 2001 2051 1960 – 1962 45 32.38 1992 2042 1965 – 1967 35 41.56 2006 2056 1965 – 1967 45 32.26 1997 2047
TABLE I: DATE OF PUBLICATION COMPARED WITH EXPIRATION OF COPYRIGHT BASED ON TABLE H
Example Date of Year in Which Complete Duration Publication Copyright Would of Copyright Expire Protection 1. Author is 35 in 1920 2007 87 years 1920; dies in 1957 2. Author is 35 in 1932 2020 88 years 1932; dies in 1970 3. Author is 35 in 1946 2035 89 years 1946; dies in 1985 4. Author is 35 in 1953 2043 90 years 1953; dies in 1993 5. Author is 35 in 1960 2051 91 years 1960; dies in 2001 6. Author is 35 in 1965 2056 91 years 1965; dies in 2006
The above groupings of statistics provide a distinct contrast to those presented in Chapters Four and Five and a number of conclusions can be drawn. First, the impact of
125 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.6 Life expectancy at single ages (ex), females, Australia, 1881 onwards’, 2008, 192 the term extension is illustrated in these statistics. Under the colonial statutes, the period of protection ranged from 42 years – 51.45 years (author aged 15 years at publication) for a male and from 42 to 54.54 years (15 aged years at publication) for a female.126 This period was slightly extended when the same calculations were undertaken for the 1905 statute: 42 years – 51.74 years (author aged 20 years at publication)127 and 42 years to 54.52 years (author aged 20 years at publication) respectively.128 Yet Tables F and H illustrate that, due to the term extension, the full duration of copyright for works produced by males ranged between 84 – 86 years, and 87 – 91 years for females. This was an additional period of approximately 40 years protection.
Further, as predicted above, copyright continued to subsist in these works throughout the creation and development of different technologies. Indeed, in many cases, copyright that first subsisted during this period will continue as the technologies that replace personal computers and the Internet begin to develop. For example, works produced by a 35 year old male and female would reach 2051 and 2056 respectively. Again, this is even without the 20-year term extension that I will address in Chapter Seven below.
ii. ARTISTIC WORKS
As was the case with respect to literary works, copyright subsisted in artistic works, regardless of publication, for the life of the author and 50 years after their death, albeit with one exception. Pursuant to Article 7, photographs were not subject to the Berlin- mandated minimum length of protection. Thus under section 21 of the 1911 Act it was stated that copyright subsisted in a photograph for 50 years ‘from the making of the original negative from which the photograph was directly or indirectly derived’.
The impact of the increase in the term of protection for artistic works is particularly acute when compared with the terms provided under the colonial statutes (14 years for paintings, drawings, sculptures and engravings, and three years for photographs) and the Copyright Act 1905 (either life of the author plus seven years, or 42 years). In a period
Although any extension of the term of copyright has the potential to adversely affect the public domain, in the case of artistic works it is more difficult to determine the direct effect that this would have had on the public. As I noted above, the term extension for literary works meant that the Australian public would have to wait longer to access cheap editions of books, a long-established benefit of the public domain. The benefit to the public flowing from artistic works being in the public domain is more difficult to establish, though it is possible to hypothesise. By 1912, and on the basis of future technological developments that occurred until the 1912 statute was repealed, the ability to reproduce paintings and drawings evolved. While artistic works produced under the colonial and 1905 statutes could only have been copied by either hand or perhaps photography or lithography, by the time that copyright expired in artistic works under the 1912 statute such images would be able to be copied via a scanner, by a publisher or by an individual and used for any purpose. When viewed in this light, the term extension for artistic works did have an impact on Australia’s public domain.
The 1911 statute also distinguished between unpublished artistic works and other types of unpublished creations, although it is arguable that this distinction was of benefit the public domain. This amendment also solved an issue raised in Chapter Four, as to whether any common law copyright or other right subsisted in unpublished artistic works.129 As noted above with respect to unpublished literary works, where a literary work was unpublished at the death of the author, copyright would subsist from the death
128 Chapter Five Section II Part B(i) Table E above. 129 See Chapter Four Part II Section B(ii). Mansell v Valley Printing Co [1908] 1 Ch 567 established that, under the Fine Arts Copyright Act 1862 (25 & 26 Vict c 68), statutory copyright protection did not occur until the work was published, but until that time the plaintiff had a common law right to property that gave the author ‘an exclusive right to publish or refrain from publishing it, as he may please’: [1908] 1 Ch 567, 573. However, this finding by Swinfen Eady J appears to overlook the fact that statutory copyright subsisted when the work was made, the same position as under the colonial copyright statutes. The decision was affirmed on appeal in Mansell v Valley Printing Co [1908] 2 Ch 441 and cited with approval in Bowden Brothers v Amalgamated Pictorials Ltd [1911] 1 Ch 386. Section 1(3) of the 1911 Act provided that ‘publication, in relation to any work, means the distribution of copies of the work to the public, and does not include…the exhibition in public of an artistic work’, suggesting that publication would only occur when copies of the artistic work were issued. 194 of the author until first publication, and then for 50 years following publication.130 Such protection did not extend to artistic works, except in the case of engravings: section 17(1) of the 1911 statute only provided protection for the posthumous publication of engravings.
Oldfield, in his 1912 text on UK copyright law, stated that the reason for this omission was that the ‘original [artistic work] was valuable itself apart from the copyright’.131 He further added that ‘to give an extended posthumous production to such works might tend to encourage the owners of such works keeping them hidden from the public in private collections’. Whatever the reason, copyright subsequently subsisted in both published and unpublished artistic works (with the exception of photographs and, due to section 17(1), engravings) for life of the author and 50 years. After that time, the artistic work – whether published or unpublished - would enter the public domain.
iii. CONCLUSION
From the preceding analysis it is possible to conclude a number of points regarding the term of copyright and the impact on Australia’s public domain under the 1911 and 1912 statutes.
First, Tables F and H illustrated, the term extension introduced by section 3 of the 1911 Act added approximately 40 years to the duration of copyright-protected literary and artistic works. Of all the provisions and term extensions discussed in this Thesis, this was the singular most significant event on the boundaries of the public domain with respect to literary works. In the case of artistic works, the period of protection had grown from 14 years under the colonial statutes to over 84 years under the 1911 Act, highlighting a significant impact on the boundaries of the public domain.
Second, however, there were some exceptions to this negative impact. Under the 1911 Act photographs would only be protected for 50 years, as dictated by Berne. Similarly, the 1911 statute provided that there was no additional copyright protection for ‘unpublished’ artistic works: with the exception of engravings, copyright in all artistic
130 Copyright Act 1911 (Imp) s 17(1). 131 Oldfield, above n 78, 110. 195 works, whether published or unpublished, would subsist for life of the author plus 50 years. After that period, an artistic work would enter the public domain. Subsequently there would be no perpetual protection for ‘unpublished’ artistic works.
Third, however, an unusual exception regarding the reproduction of published literary works was also provided under section 3 of the Copyright Act 1911. This compulsory licence was introduced in an attempt to counteract the substantial term extension. It was deliberately enacted to fulfil a role previously undertaken by the public domain: the publication of works. Under the 1911 statute the public domain no longer meant that, at 25 years after the death of the author a work could be reprinted with no legal consequences, due to the extension of the term of copyright. Section 3 introduced a public right to undertake a role previously fulfilled by the public domain.
C. ADDITIONAL PUBLIC DOMAIN FEATURES
i. LECTURE COPYRIGHT
Protection for lectures was retained under the Copyright Act 1911. Section 35(1) defined the term ‘lecture’ to include an ‘address, speech or sermon’, reflecting the privileged position of sermons identified above in Chapter Five.132 Pursuant to section 1(2), the copyright in a lecture was defined to mean the right ‘to deliver, the work or any substantial part thereof in public’. However, it is the exception to this right rather than the right itself that is relevant to a discussion of the public domain. Pursuant to section 20:
Notwithstanding anything in this Act, it shall not be an infringement of copyright in an address of a political nature delivered at a public meeting to publish a report thereof in a newspaper.
Section 20 appeared, prima facie, similar to the exemption of protection for political addresses originally contained in the Copyright Bill 1905 that had been removed prior to the passing of the Copyright Act 1905 on account of its unpopularity with Federal
132 See Chapter Five Part II Section A(iii) above. Pursuant to section 4 of the Copyright Bill 1905 as originally introduced, a ‘lecture’ was defined as ‘a piece for recitation or any address, but does not include a political speech or sermon delivered in a place of public worship.’ However, as I discussed, a market for sermons had developed prior ro the enactment of the Copyright Act 1905 and the subsistence of a lecturing right – which would subsequently convert into copyright upon publication of the sermon – was arguably rightly deserved. 196 politicians.133 In contrast, the 1912 Federal Parliament seemed more receptive to section 20. In the parliamentary debates accompanying the passing of the 1912 statute, Senator McGregor, referring to this provision, stated that ‘[p]olitical speeches are exempt from copyright. That is to say, if a politician or candidate addresses a public meeting, the newspapers can publish reports of his speech without any fear of being prosecuted for infringing his lecturing right.’134
It would be a mistake to suggest that political addresses were therefore ‘exempt from copyright’ in the strict sense that this work was therefore in the public domain. Section 20 provided that a newspaper was not liable for copyright infringement for publishing a report of a political address; however, it did not exempt political addresses from copyright protection. It created an exception to infringement: a public right for newspapers to print political addresses delivered at public meetings.135 While this provision was created by the UK Parliament, it is reminiscent of the decision of the Federal Parliament discussed earlier in Chapter Five: section 30 of the 1905 statute. This provision substituted a public right for a public domain entitlement – the right to apply to the Minister to compel the creation of a translation of a work after a decade, rather than that right entering the public domain after that time, as provided under the Berne Convention.136 A similar position applied with respect to section 20 of the Copyright Act 1911: the UK Parliament could have provided that no copyright would subsist in political addresses, that would have highlighted the democratic nature of the public domain identified at various parts of this Thesis.137 Instead, an exception to infringement was adopted. Political addresses, therefore, did not enter the public domain pursuant to section 20.
133 See Chapter Five Part II Section A(iii). 134 Commonwealth of Australia, Parliamentary Debates, Senate, 26 July 1912, 1337 (Senator Gregor McGregor). 135 In contrast, the Attorney-General William Hughes correctly identified section 20 as an exception to infringement: see Commonwealth of Australia, Parliamentary Debates, House of Representatives, 30 October 1912, 4860 (Mr William Hughes, Attorney-General). 136 See Chapter Five Part II Section A(i) above. 137 See Chapter Three, ‘Constitutional Foundations Part Two: The Australian Constitutional Implied Guarantee of Freedom of Political Communication and the Public Domain’. It is also worth noting that section 18 of the Copyright Act 1911 provided the first Crown copyright protection for works, further affecting the democratic nature of the public domain. 197 ii. ‘IMMORALITY AND OTHER DISQUALIFICATIONS RECOGNIZED BY THE LAW’
In Chapter Five I noted that section 6 of the Copyright Act 1905 denied copyright protection to ‘blasphemous, indecent, seditious, or libellous work[s]’ and thus such works would enter Australia’s public domain.138 Neither the 1911 nor 1912 statutes contained a similar provision. However, in the High Court decision in Sands & McDougall Pty Ltd v Robinson, discussed above with respect to the originality requirement for literary works, Isaacs J stated in obiter that ‘[a]ll literary works are protected if “original.” That is the only condition - apart, of course, from certain disentitling considerations, as immorality and other disqualifications recognized by the law.’139 Isaacs J did not enter into this issue any further, nor did His Honour refer to section 6 of the Copyright Act 1905. Although Isaacs J did not cite it, his statement in part reflected the 1916 UK decision Glyn v Weston Feature Film Company.140 In that case, Younger J stated that ‘copyright cannot exist in a work of a tendency so grossly immoral as this’, indicating that where a work offended public morals a Court of Equity would deny protection to it.141 Yet the comments by each judge reflect different issues; Isaacs J suggested that copyright would not subsist in the immoral work, whereas Younger J suggested that in the case of immoral works equity would not act to protect the plaintiff. It is only the former that implies that during this period Australia’s ‘public domain of sinful works’ lived on, albeit in case law rather than statute. However, there are no Australian decisions where copyright protection was denied on such grounds.
iii. CONCLUSION
Two issues of significance are apparent from the preceding discussion.
First, section 20 continued a theme that I identified in Chapter Five above: the expansion of public rights in statutory copyright law at the expense of the boundaries and standing of the public domain. Rather than introduce a provision that denied the subsistence of copyright in political addresses as was originally proposed in the Copyright Bill 1905, the Copyright Act 1911 introduced an exception to infringement allowing newspapers to publish such addresses. While a public right is undoubtedly
138 See Chapter Five Part II Section C(i) above. 139 (1917) 23 CLR 49, 57. 140 [1916] 1 Ch 261. 141 [1916] 1 Ch 261, 269-270. See also Oldfield, above n 78, 12-13. 198 better for the public interest than no attempt to offset private rights – particularly with regard to the reporting of lectures, which was previously difficult to do under the colonial and 1905 statutes - it is unfortunate that such works were not ‘donated’ to the public domain.
Second, a provision that specifically introduced one category of works – section 6 of the 1905 statute – was not included in the 1911 Act, thus technically removing ‘blasphemous, indecent, seditious, or libellous work[s]’ from the public domain. Although one member of the High Court suggested that such works would be denied protection by the courts, there were no further cases under the 1912 statute either confirming or rejecting this proposition.
III. AUSTRALIA’S PUBLIC DOMAIN PRIOR TO 1968
A number of the findings presented in this Chapter have been in marked contrast to those in Chapters Four and Five. The most apparent contrast was the enactment of a United Kingdom statute to regulate Australia’s national copyright system. Although the colonial and 1905 copyright statutes were heavily influenced by UK laws, even to the point of the inclusion of identical provisions, these local laws were at least debated and shaped by Australia’s colonial and subsequently Federal legislatures and subsequently passed by those same legislatures. The 1911 Act was not. Further, unlike Chapters Four and Five, there was also greater judicial interpretation of the provisions of the Copyright Act 1911 and Copyright Act 1912. Subsequently a number of public domain doctrines identified in Chapter One – the standard of originality and the idea/expression dichotomy – made their first appearances in these judicial determinations. This was in distinct contrast to the colonial and 1905 statutes, where few cases emerged on their provisions and thus most of what could be learnt about the public domain was from the legislation in force at that time.
A number of similarities, however, with themes in previous Chapters also emerged. The most notable of these is the continuation of a theme identified in Chapter Five: the introduction of a public right where the public domain either previously did or could have fulfilled the role of the public right. This was apparent in two cases identified in this Chapter: section 20, with regard to political addresses and section 3, with regard to
199 the publication of editions 25 years after the author died. Although the Australian Federal Parliament did not make these choices, as was the case under the Copyright Act 1905, these provisions affected the public domain and its significance during this period.
In conclusion, in many respects, the seeds of modern copyright law and Australia’s public domain today – a low standard of originality; recognition of the idea/expression dichotomy (in all categories of works); and an extended post-mortem length of protection – were all planted in the drafting, adoption and interpretation of the Copyright Act 1911. The final statute that this Thesis will now consider – the Copyright Act 1968 (Cth) – has been the subject of far greater attention for its impact on the public domain than any of the statutes considered over the course of the previous three Chapters. Nevertheless, the boundaries and significance of Australia’s public domain still remain fundamentally unconsidered. Chapter Seven, therefore, aims to begin a discussion on the effect of this law on Australia’s public domain to the present day.
200 CHAPTER SEVEN
THE COPYRIGHT ACT 1968 AND THE MODERN DEVELOPMENT OF AUSTRALIA’S PUBLIC DOMAIN
I. INTRODUCTION: THE BIRTH AND UNSTOPPABLE GROWTH OF THE COPYRIGHT ACT 1968
The Copyright Act 1968 (Cth) began the same as all other copyright statutes in Australia and the colonies before it: following the introduction of a statute of the United Kingdom. In 1956, the UK Parliament superseded the Copyright Act 1911 (Imp) with the Copyright Act 1956 (UK), following the 1952 report of the Gregory Committee, recommending a multitude of changes to the copyright law of the UK.1 Yet as Sawer, somewhat tongue-in-cheek, notes in a 1969 article, the UK Parliament ‘obligingly kept [the 1911 statute] on foot for the one purpose of its application pursuant to the Commonwealth Copyright Act 1912.’2 Long after the UK Parliament ‘repealed and replaced’ the 1911 Act it remained law in Australia, as confirmed by the High Court in Copyright Owners Reproduction Society v E.M.I. (Australia).3
In 1959, a committee on copyright, chaired by Sir John Spicer4 (the ‘Spicer Committee’) recommended the adoption of a new copyright law in Australia. The Terms of Reference for that review were ‘to examine the copyright law of Australia and to advise which of the amendments recently made in the law of copyright in the United Kingdom should be incorporated into Australia copyright law and what other alterations or additions, if any, should be [made] to the copyright law of Australia’,5 though the Spicer Committee ultimately recommended that a new Australian copyright law be introduced, rather than enacting the 1956 statute in its entirety. However, more importantly for the present purpose, in its report the Spicer Committee identified that
1 Great Britain, Report of the Copyright Committee, Cmd 8662 (1952). 2 G. Sawer, ‘The Commonwealth Copyright Act 1968’ (1969) 43 Australian Law Journal 8, 8. 3 (1958) 100 CLR 597, 604. See also Committee to Consider What Alterations Are Desirable to the Copyright Law of the Commonwealth (Chairman Sir John Spicer), Report of the Committee appointed by the Attorney-General to consider what alterations are desirable to the law of the Commonwealth (1959) [17]-[22] (hereafter ‘The Spicer Committee’); Hamish R Gray, ‘The Sovereignty of the Imperial Parliament’ (1960) 23 Modern Law Review 647; F A R Bennion, ‘Copyright and the Statute of Westminster’ (1961) 24 Modern Law Review 355. 4 Geoff Browne, ‘Spicer, Sir John Armstrong (1899 – 1978)’, Australian Dictionary of Biography Online Edition at
In arriving at our recommendations our task has essentially been one of balancing the interests of the copyright owner with those of copyright users and the general public. The primary end of the law on this subject is to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright is in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered.6
This comment suggests that the ‘copyright balance’ is binary in nature: the interests of owners as opposed to the interests of users. Yet Australia’s copyright paradigm is arguably more complex than the Spicer Committee submitted: when viewed against the lens of history, as presented in Chapters Four, Five and Six, copyright appears to encompass a far more complicated relationship between private interests, public rights, the public domain and what is perceived to be in the ‘public interest’. The trouble is that, since the Spicer Committee’s comment was made in 1959, there has been no change in discourse on this dichotomy: Australian law continues to maintain that owner/user, either/or position.7 ‘Owners’ are given an increasing number of rights and longer durations of protection. ‘Users’ are granted piecemeal exceptions to infringement to permit certain types of behaviour in specific circumstances.8 For example, the 1968 statute, as introduced, contained the most extensive list of exceptions to infringement to date in any Australian copyright statute.9 Subsequently this list has greatly expanded,10
6 Ibid [13] (emphasis in original). 7 See, eg, Attorney-General’s Department, Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age (2005)
The struggle to achieve ‘balance’ continues today and thus from its enactment the 1968 statute has been a difficult law to both manage (for the legislature) and interpret (for the judiciary). Despite multiple law reform reviews aimed at reducing the complexity of the law and simplifying its provisions,12 the Copyright Act 1968 remains long, hard to understand and perpetually unable to reflect current technological innovations and the dilemmas posed by these new technologies.13 When viewed against the other statutes I consider in this Thesis, it made me yearn for the simple, more streamlined days of the
10 For example, reproduction of an insubstantial part of a literary work that is in hardcopy form (s 135ZG) – (1989); fair dealing for the purpose of parody of satire (s 41A) - (2006); reproduction of books, newspapers and periodical publications, in a different form, where such reproduction is for private use (s 43C) - (2006); reproduction of a literary work by a body administering a library or archives, an educational institution, or for a person with a disability, in certain circumstances (s 200AB(1)-(4)) - (2006). 11 It is also worth noting that in the 1980 decision Commonwealth v John Fairfax & Sons Ltd Mason J suggested that a public interest defence, not contained in the Copyright Act 1968, also existed pursuant to the Australian common law. Mason J noted that, ‘[a]lthough copyright is regulated by statute, public interest may also be a defence to infringement of copyright….It makes legitimate the publication of confidential information or material in which copyright subsists so as to protect the community from destruction, damage or harm’: (1980) 147 CLR 39, 56-57. However, Gummow J rejected this position in a case concerning architectural plans, an area examined with respect to the 1968 statute and the public domain in greater detail below. In Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 19 IPR 44 the defendant claimed that, if it had infringed the copyright in certain plans created by the plaintiff that it had re-printed in a newspaper advertisement, such publication was ‘excused at law as a matter of “public interest”’: (1990) 19 IPR 44, 46. Gummow J dismissed its existence as vehemently as Mason J had previously asserted it in the Fairfax decision, finding that the provisions of the Copyright Act 1968 detailed all available defences to copyright infringement: see (1990) 19 IPR 44, 55. 12 See, eg, Copyright Law Committee on Reprographic Reproduction, Report of the Copyright Law Committee on Reprographic Reproduction (1976)
Surprisingly, given the complexity of the statute, there has actually been some scholarly analysis of Australia’s public domain under the 1968 Act. Where such discussion has occurred, the literature generally focuses on one of two issues, either examining the relationship between the public domain and Indigenous cultural creations14 or the public domain in the context of the Australia-United States Free Trade Agreement 2004. However, public domain discourse falling into the latter category generally only examines one aspect of the public domain: the term of copyright.15 Similarly, although some additional copyright literature has examined a number of aspects that in fact comprise part of Australia’s public domain – for example, the standard of originality and the idea/expression dichotomy – few have evaluated the relationship between these areas and Australia’s public domain.16 These unanswered questions are the challenge for this Chapter.
On that basis, this Chapter commences a broader discussion on the shaping and potential significance of the public domain under the Copyright Act 1968, from its enactment through to today. It adopts the structure of Chapters Four, Five and Six and considers three public domain issues:
A. The rights granted; B. Terms of protection; and
Amendment Act 2006’ (2006) 66 Computers & Law: Journal for the Australian and New Zealand Societies for Computers and the Law 1, 3-6. 14 See Chapter One Part I footnote 42 above. 15 See, eg, Rina Sheftalovich, ‘Protection of the Public Domain – One of the Most Significant Challenges in the Law of Intellectual Property in the 21st Century’ (2005) 63 Intellectual Property Forum: Journal of the Intellectual Property Society of Australian and New Zealand 10; Matthew Rimmer ‘Robbery Under Arms: Copyright Law and the Australia-United States Free Trade Agreement’ (2006) 11(3) First Monday
Given the number of provisions that have the potential to affect Australia’s public domain I confine my analysis to two categories of copyright-protected creations: literary works and artistic works. However, I will also briefly consider the relationship between a new type of protected creation that emerged under the Copyright Act 1968, published edition copyright, and the public domain under the heading ‘Additional public domain features’. A more expansive evaluation of the public domain and other aspects of the 1968 statute must be left to later literature.
Before proceeding, one issue deserves a brief mention: public rights. I noted above the significant role that these piecemeal rights of ‘users’ have played with respect to the development of the Copyright Act, and in previous Chapters I discussed the details of any prominent public rights that the statute under consideration contained. Much has been written elsewhere, in both an academic and practical context, on the different provisions falling under this category.17 These defences are meant to be for the ‘public’ or the ‘users’ of copyright material but it is arguable that legal practitioners, let alone the public, are unable to come to any conclusions as to whether certain actions are justified under these provisions. I believe that a separate discussion needs to occur regarding the exceptions to infringements provided under current Australian copyright and therefore in this Chapter I will not undertake any further discussion of the public rights contained in the 1968 statute. The focus here is on Australia’s public domain.
‘Compilation copyright: A matter calling for “a certain…sobriety”’ (2009) 19 Australian Intellectual Property Journal 231-266. 17 See, eg, Peter Brudenall, ‘Fair Dealing in Australian Copyright Law: Rights of Access Under the Microscope’ (1997) 20 University of New South Wales Law Journal 443-463; Michael Fraser, ‘Fair is foul and foul is fair: from analogue to digital fair dealing’ (1998) 9 Journal of Law and Information Science 93-109; Michael Handler and David Rolph, ‘“A Real Pea Souper”: The Panel Case and the Development of the Fair Dealing Defences to Copyright Infringement in Australia’ (2003) 27 Melbourne University Law Review 381-422; Melissa de Zwart, ‘Seriously Entertaining: The Panel and the Future of Fair Dealing’ (2003) 8 Media & Arts Law Review 1-17; Maree Sainsbury, ‘Parody, satire and copyright infringement: The latest addition to the Australian fair dealing law’ (2007) 12 Media & Arts Law Review 212-319; Melissa de Zwart, ‘Australia’s Fair Dealing Exceptions: Do They Facilitate or Inhibit Creativity in the Production of Television Comedy?’ in Andrew T Kenyon (ed) TV Futures: Digital Television Policy in Australia (2007) 166-195. 205 II. PUBLIC DOMAIN ASPECTS OF THE COPYRIGHT ACT 1968
A. THE RIGHTS GRANTED
i. LITERARY WORKS
Pursuant to section 32 of the Copyright Act 1968 as passed, both unpublished and published literary works would be protected under copyright law, where certain criteria were met in each case.18 Under section 32(1) copyright would subsist in an unpublished original literary work in two cases: first, where the author of that work was either a qualified person at the time that the work was made; or second, where the work was made over an extended period, the author was a qualified person for a substantial part of that period.19 Subsistence of copyright in published literary works was subsequently addressed in section 32(2): copyright subsisted in a work if it had been published, or if copyright had subsisted prior to first publication, then it would continue to subsist. A number of criteria had to be met for protection: first publication must have occurred in Australia, and the author must have been a qualified person at the time of publication or where the author had died, been a qualified person immediately before his death.20 The criterion for the subsistence of copyright in a literary work remains the same today.
The term literary work was defined in section 10, the interpretations provision of the 1968 Act as passed, to include ‘a written table or compilation.’ Today, that definition has been modified slightly and it is stated in section 10(1), the current interpretations section, that:
literary work includes: a. a table, or compilation, expressed in words, figures or symbols; and b. a computer program or compilation of computer programs.21
18 As was the case under the Copyright Act 1911, section 32 of the Copyright Act covers the subsistence of copyright in literary, dramatic, musical and artistic works; it is not specific to literary works. However, only the literary work aspects will be discussed here and, in the section below, the subsistence of copyright in artistic works. 19 The term ‘qualified person’ was further defined in section 32(4) as ‘an Australian citizen, an Australian protected person or a person resident in Australia.’ 20 Copyright Act 1968 (Cth) s 32(2)(c)-(e). 21 The definition of a ‘literary work’ was amended pursuant to the Copyright Amendment Act 1984 (Cth) to include computer programs, though computer programs will not be considered in any detail here. See also Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581; Apple Computer Inc v Computer Edge Pty Ltd (1984) 53 ALR 225; Computer Edge Pty Ltd v Apple Computer Inc (1985) 161 CLR 171. 206 It is the subsistence of copyright in compilations that I will focus on here. The fact that, as was the case under the Copyright Act 1911, ‘compilations’ were explicitly included as part of the definition of a ‘literary work’ in 1968, and that such a detail has been retained, indicates a legislative intent that this type of creation should be protected by copyright. Yet for the present purposes, the more significant question regarding compilation copyright was and subsequently has been left to Australia’s judiciary for examination - what compilations justify protection as a literary work under the Copyright Act 1968.22 As noted above, such a determination was and remains critical to Australia’s public domain: many cases have involved compilations of public domain facts where it was the information, rather than the actual compilation, that was of value to the copyright owner.23 Thus, debate as to what circumstances will lead to the protection of a compilation and the type of compilations that will be protected have continued under the Copyright Act 1968.
In the context of the 1968 statute, deliberation on these issues began prior to its enactment, by virtue of a comment in the Spicer Committee report:
Several football bodies have submitted to us that copyright should exist in the lists prepared by those bodies, of the names of players and the numbers allotted to them for purposes of identification. It is said that the sale of football publications is the means of adding to the revenue of football clubs and the prior publication of such lists by, for example, newspapers would deprive them of the major part of such revenue. We are unable to see how copyright can be conferred merely in respect of the name of a player associated with his football number. It has been held that copyright may exist in various compilations such as an alphabetical list of railway stations, a list of fox-hounds and hunting dogs and lists of stock exchange prices and football fixtures. In all these cases the question whether copyright exists depends to a large extent on the amount of labour, capital or skill expended in making the compilation. We think that the law in this regard should not be changed.
It seems that the football clubs may have copyright in the lists they prepare as published in the various football publications (see Football League Ltd. v. Littlewoods Pools Ltd., (1959) 3 W.L.R. 42). Such copyright, however, does not prevent a person making his own list by attending a match. In the field of copyright there is not, in our view, any way to legislate against this. Indeed, no proposal on how this could be achieved was submitted to us. We, therefore, reject the submissions in this regard.24
22 This is a particularly controversial question given the fact that Australia has no sui generis protection for database rights, in contrast to, for example, the European Union. See, eg, Mark Davison, The Legal Protection of Databases (2003); Sandra Gosnell, ‘Database Protection Down Under: Would a “Sweaty” Australia Be Better Off With a Northerly Change?’ (2003) 26 University of New South Wales Law Journal 639, 671-677; IceTv Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, [135]-[153]. 23 See Chapter Four Part II Section A(i); Chapter Six Part II Section A(i) above. 24 The Spicer Committee, above n 3, [483]-[484]. 207
Fifty years later, in IceTv Pty Ltd v Nine Network Australia Pty Ltd25 (‘IceTv’), the joint judgment of Gummow, Hayne, and Heydon JJ extracted parts of the above quotation and noted that ‘[t]his [the IceTv] litigation is placed in a different commercial setting, where recent developments in technology are of considerable importance. But much of the area of legal debate is laid out in the above remarks by the Spicer Committee nearly 50 years ago.’26 Between the Spicer Committee’s comments and the IceTV litigation this legal debate continued as Australian courts ultimately found that copyright subsisted in the following types of compilations, though this is by no means an exhaustive listing:
accounting forms (Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd);27 a trade catalogue of motorcycle parts, even where part of that catalogue infringed copyright in another work (A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd);28 various editions of a directory of boating services titled The Pittwater Hawkesbury Brisbane Water Boating Directory (Harpur v Lambourne);29 the ‘Weight Watchers’ weight loss program (Skybase Nominees Pty Ltd v Fortuity Pty Ltd);30 a computer software package (T R Flanagan Smash Repairs Pty Ltd v Jones);31 and telephone directories featuring names and addresses (Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd)32 (‘Desktop Marketing’).
The final case on that list, Desktop Marketing, is often attributed with setting a low originality threshold under Australian copyright law, although problems with the
25 [2009] HCA 14. 26 IceTv [2009] HCA 14, [78]. 27 (1985) 5 IPR 213, 237-238. 28 (1996) 65 FCR 478, 490; see also Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339, 352- 354. 29 (1999) 45 IPR 213, 225. 30 (1996) 36 IPR 529, 534-536. 31 (2000) 172 ALR 467, 473-476; see also Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 144 ALR 528, 540-542. 32 (2001) 51 IPR 257, confirmed on appeal to the Full Federal Court: see (2002) 119 FCR 491. Special leave to appeal to the High Court was refused: see Transcript of Proceedings, Desktop Marketing 208 standard of originality for literary works were identified long before that decision. For example, speaking extra-judicially in 1996 on potential copyright reforms, Sir Anthony Mason noted that ‘If there is to be a change in the concept of copyright, there should be an insistence on a stronger element of originality. In Anglo-Australian copyright law, the threshold requirement for originality is too low.’33 Despite such a recognition, the standard of originality set by Australian courts bowed lower still, culminating in the Desktop Marketing decision. In that case it was established that copyright could subsist in ‘whole of universe’ compilations created solely from public domain facts, merely created from the ‘sweat of the brow’ and no additional creativity.34
The most recent litigation discussing this issue, the IceTv dispute, did not involve the subsistence of copyright in a ‘whole of universe’ compilation, but a compilation of television programme scheduling information that was of great value to its copyright owner, Nine Network Australia. IceTv produces an electronic programming guide (EPG) featuring the details of upcoming shows and films on all major free-to-air broadcasters within Australia, including time and title information and synopses of scheduled programmes. This guide allows individuals to record television broadcasts to personal video recorders.35 Although one method of obtaining the relevant weekly schedule information would be through a license with the broadcaster, IceTV collected the Channel Nine schedule by making their own compilation of this public domain information. An IceTV employee spent three weeks watching Channel Nine and recording by hand the programs shown over that period.36 Following the creation of that basic database, IceTV would cross-reference its EPG with other versions of Nine’s
Systems Pty Ltd v Telstra Corporation Ltd (High Court of Australia, Hayne and Callinan JJ, 20 June 2003). 33 Sir Anthony Mason, ‘Comment: The Users’ Perspective on Issues Arising in Proposals for the Reform of the Law of Copyright’ (1997) 19 Sydney Law Review 65, 74. In the same comment Sir Anthony Mason recognises a number of other elements that belong to Australia’s public domain – for example, the idea/expression dichotomy – but these elements are not attributed to the concept of the ‘public domain’. 34 Subsequent compilation copyright decisions have followed the low standard of originality set in Desktop Marketing. See, eg, Seven Network (Operations) Ltd v Media and Entertainment Arts Alliance (2004) 148 FCR 145, 157; TS&B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 72 IPR 492, 511. 35 See ‘IceTv’
Just as horse racing information and rugby league player names and numbers may not appear to be valuable information, at first glance the commercial significance of time and titles of programs to be broadcast by a television network is arguably not evident. Yet it was this public domain information, contained in its weekly schedule that Nine Network Australia sought to protect in the IceTV litigation. As discussed above, Gummow, Hayne, and Heydon JJ noted in their joint judgment the ‘different commercial setting’ of the IceTV litigation when compared with the rugby league example faced by the Spicer Committee and it is this changed commercial setting that made – and continues to make - this time and title information so valuable, for two reasons. First, it is lucrative for a television network to license their weekly schedule to companies that independently create their own television guides, thus exercising a form of monopoly control over otherwise public domain information. For example, at first instance Bennett J identified a commercial licensing agreement with Yahoo! Australia, who would include the weekly television schedule in its database.38 Second, the fact that the Nine Network Australia would undertake such litigation reflects the changing Australian broadcasting landscape, where personal video recorders are common – and, as highlighted in the example of the services of IceTV, public domain scheduling information plays an important role in facilitating these technological and consumer developments.39
Given that IceTV conceded that Nine Network Australia enjoyed copyright protection in its weekly schedule, neither the Federal Court, the Full Federal Court, or the High Court had the opportunity to reconsider Desktop Marketing. However, the Australia Digital Alliance appeared as amicus curiae, proposing that the High Court re-evaluate Desktop Marketing as part of its decision.40 Neither of the joint judgments of the High
37 IceTv (2007) 73 IPR 99, 138. 38 IceTv (2007) 73 IPR 99, 114, 118. 39 See generally Kathy Bowrey, ‘What Are You Missing Out On? Big Media, Broadcasting, Copyright and Access to Innovation’ in Andrew T Kenyon (ed) TV Futures: Digital Television Policy in Australia (2007) 135-165. 40 The role of amicus curiae, and the importance that public interest organisations such as the Australian Digital Alliance could play in constitutional litigation regarding the public domain, was discussed earlier: see Chapter Two, Part III, Section B above. 210 Court took up this proposal, but in the final paragraphs of their joint judgment, Gummow, Hayne and Heydon JJ stated briefly that:
One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court’s decision in Desktop Marketing and, to the contrary of Desktop Marketing, affirm that there must be some “creative spark” or “exercise of skill and judgment” before a work is sufficiently “original” for the subsistence of copyright.
It is by no means apparent that the law even before the 1911 Act was to any different effect to that for which the Digital Alliance contends. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon “labour and expense” per se and upon misappropriation. However, in the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.41
As a result, it is possible to have copyright protection over a ‘whole of universe’ compilation containing solely public domain information and, until a case meeting the above description is heard, it appears that a low standard of originality for compilations (and literary works more generally) remains. Nevertheless, it is arguable that the standard of originality may go one step lower, as Fairfax Media is currently suing LexisNexis, a division of publisher Reed Elsevier, in the Federal Court of Australia for copyright infringement solely of its headlines and by-lines.42 At the time of writing the judgment of Bennett J remains reserved, however, if infringement has been found to occur, this will further decrease the standard of originality and potentially return copyright to the colonial position of copyright in basic information, as discussed in Chapter Four.43 Such a change may have major repercussions for Australia’s public domain.
41 IceTv [2009] HCA 14, [187]-[188] (citations omitted). 42 Sally Jackson, ‘Fairfax media fight for headline rights’, The Australian, 4 September 2008,
The right to reproduce the work in a ‘material form’ (‘the reproduction right’); The right to publish the work (‘the right of first publication’); The right to perform the work in public (‘the performance right’); The right to broadcast the work (‘the broadcast right’);44 The right to ‘cause the work to be transmitted to subscribers of a diffusion service’ (‘the diffusion right’); The right to make an adaptation of the work.45
It is clear from this list that there were a number of differences between the rights provided under the 1912 (and by virtue of that Act, the 1911 UK) and 1968 statutes. The broadcast and diffusion rights were both new, aimed at dealing with the newer technologies of that time.46 Therefore, despite the technological constraints on undertaking such activities, the ability to undertake these actions without recourse from a copyright owner was removed from Australia’s public domain.
Since the passing of the 1968 statute, the exclusive rights of the owner of the copyright in a literary work have been supplemented twice, with the second revision of greater significance to a discussion of Australia’s public domain.47 Pursuant to the Copyright Amendment (Digital Agenda) Act 2000 (Cth), the broadcast and diffusion rights were repealed and replaced by a new subsection 31(1)(a)(iv), which gave the copyright owner the right ‘to communicate the work to the public’. A definition of the term ‘communicate’ was also added to section 10(1) of the Act, which stated that the term meant ‘make available online or electronically transmit (whether over a path, a
44 The term ‘broadcast’ was defined in section 10 to mean ‘broadcast by wireless telegraphy’. 45 The term ‘adaptation’ was defined in section 10 as the right to: convert the literary work into a dramatic form; translate the work; and to create story version of the work where the content was conveyed solely by pictures. Section 31(1)(a)(viii) subsequently provided that the copyright owner gained the additional right to do any of the above acts in relation to the adaptation. 46 See generally James Lahore, Intellectual Property Law in Australia: Copyright (1977), [1007]-[1008]. 47 The first revision was pursuant to the Copyright (World Trade Organization Amendments) Act 1994 (Cth), where an additional right was included for literary works (other than computer programs), granting the owner the right ‘to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording’: Copyright Act 1968 (Cth) s 31(1)(c). 212 combination of paths, provided by a material substance or otherwise) a work or other subject matter.’ The phrase ‘to the public’ was further defined to mean ‘the public within or outside Australia.’
Although a full analysis of the digital agenda amendments will not be undertaken here, the finalised provisions were the result of a prolonged period of review aimed in part at addressing the perceived problem:
Another major gap in existing copyright protection is the fact that owners of copyright in works do not have effective rights to control the making available on-line of their copyright material. This means that when copyright material is being used on-line it is difficult for copyright owners to obtain any redress or remuneration for such on-line use of their creations.48
Without an appropriate exclusive right granted to the owner of the copyright, any individual could post a literary work on the Internet – online distribution of that material may have been in the public domain. However, what is particularly interesting about this situation is that, for arguably the first time, it was within the technological capabilities of the public to undertake such an action, as opposed to previous instances where, although an action may have comprised part of Australia’s public domain the public did not have access to relevant technology to undertake this permissible activity.
For example, in Chapter Six I noted that the right to ‘make any record, perforated roll, cinematograph film or other contrivance’ was granted to the owner of the copyright in a literary work pursuant to section 1(2)(d) of the Copyright Act 1911.49 This meant that prior to the introduction of this right the action itself – making a film or a record of a literary work – was part of Australia’s public domain. Although Australia was enjoying a growing film industry and a number of books had been converted to cinematograph films prior to the introduction of that right, given the cost and availability of technology at that time, the majority of the Australian public would have been unable to take advantage of this.50 In contrast, according to Australian Bureau of Statistics information collated in the same years as the communication right was introduced, in 2000 over
48 Attorney-General’s Department and Department of Communications and the Arts, Discussion Paper: Copyright Reform and the Digital Agenda – Proposed transmission right, right of making available and enforcement measures (1997) xi. 49 See Chapter Six Part II Section A(i) above. 50 Ibid. 213 53% of Australian homes had computer access and 33% had Internet access.51 Between 1999 and 2000 the number of Australian homes with Internet access doubled.52 It was, therefore, within the technological capabilities of many members of the Australian public to exercise the actions later stipulated under the communication right.
Thus, it is perhaps not surprising that the Explanatory Memorandum accompanying the Copyright Amendment (Digital Agenda) Bill 1999 confirmed that the new ‘communication right’ was aimed at ‘provid[ing] copyright owners with greater protection for their material in the new digital environment’,53 subsequently removing this action from Australia’s public domain.
ii. ARTISTIC WORKS
The term ‘artistic work’ was defined originally in section 10(1) as:
(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not;54 (c) a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies[.]55
As was the case with respect to literary works, the Copyright Act 1968 as passed provided that copyright subsisted in both unpublished and published artistic works, where the criteria for subsistence were met pursuant to sections 32(1) and (2) respectively. Special provision was also made for artistic works in the form of buildings: pursuant to section 32(3), copyright subsisted in an original artistic work that
51 Australian Bureau of Statistics, Household Use of Information Technology Australia, 8146.0, 2000, 3
Since the passing of the 1968 Act a recurring area of copyright litigation has concerned architectural plans and buildings – and a number of public domain issues have arisen as part of these decisions.58 One of the first cases on architectural plans, decided shortly after the enactment of the 1968 Act,59 highlighted the issues to be faced by the judiciary when dealing with architectural copyright over the next four decades that would have a concurrent impact on Australia’s public domain:
There is undoubted force in the contention that the field of architecture is traditionally one in which new ideas are constantly evolving and being developed. Applications of new architectural ideas and concepts by those who follow the leaders in their profession are legitimate, and will not be restrained by the copyright laws. There is a clear distinction between the protection which the law will afford to an architect’s plans on the one hand, and, on the other hand, the absence of any protection to the architectural idea or concept which may happen to be expressed in any given set of plans. The same distinction applies in the case of a completed house.60
This language reflects one of the categories of the public domain - the idea/expression dichotomy – being applied with respect to an area previously unexplored in this Thesis: the homes of the Australian public. Indeed, what makes architectural copyright perhaps so significant from a public domain perspective is that it is fundamentally quite different from other types of copyright-protected creations discussed in previous Chapters. While copyright in, for example, books, newspapers, sculptures and paintings affects how the Australian public enjoys its ‘entertainment’ public domain, architectural copyright has the capacity to affect how the Australian public shelters their physical selves. Yet concepts of ‘home’ and ‘home ownership’ in the post-World War II periods are arguably tied into Australian culture more than any book, film, television series, or play. To the Australian public, a home is much more than a shelter: the ownership of a home is tied into concepts of the ‘Australian dream’ or the ‘Australian way of life’.61 This is
56 Copyright Act 1968 (Cth) s 32(3)(a). 57 Copyright Act 1968 (Cth) s 32(3)(b). 58 This area was briefly touched upon in Chapter Six: see Chapter Six Part II Section A(ii) above. 59 See also Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265. That decision was decided under the Copyright Act 1911 and the plans in question were treated as an ‘original literary work’: see [1970] 3 NSWR 265, 269. 60 Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, 284. 61 See eg John Garnaut, ‘End of the Great Australian Dream?’, The Age (Melbourne), 14 July 2003
We’re not just obsessed with owning our homes, or even with owning homes that other people rent – we’re obsessed with every detail and dimension of home. Our homes are getting bigger and more expensive...The burgeoning market for lifestyle is more often than not centred in the home, and is geared towards the purchase of things – kitchens, bathrooms, furnishings, colour schemes, accessories, appliances – that will make our homes more lavish and opulent...Not that there is anything wrong with wanting to feather a nest.63
Given the social and cultural significance of homes to the Australian public, copyright, in regulating the features of these properties, has the potential to interfere with this realisation of the ‘Australian dream’. In this respect, the public domain – by containing the unregulated ideas and features that can appear in every Australian home – appears quite significant. Although a definitive list of such public domain aspects has not been undertaken, Tamawood Ltd (formerly called Tamawood Pty Ltd) v Henley Arch Pty Ltd64 (‘Tamawood’) features arguably the most complete listing to date:
The application of the law of copyright to project home plans gives rise to special difficulty. All modern homes have certain features in common. In the case of project homes competing for the same number of dollars, there are pressures towards sameness. Of course, the size, number of rooms and facilities will vary according to the price range. Commonly, however, those in the same price range will be found: (a) to be designed to fit blocks of approximately similar shape and dimensions; (b) to provide for vehicular access and accommodation; and (c) to include features demanded by the market in question, such as, a certain number of bedrooms, a laundry, a kitchen, a family or rumpus room, an ensuite and a walk-in wardrobe (WIR) in association with the main bedroom, build-in wardrobes in the other bedrooms, at least one bathroom in proximity to the other bedrooms, and certain facilities in the kitchen such as a sink, bench, dishwasher, stove, hot plate and microwave oven.65
Yet, just as a low standard of originality has been set for literary works (particularly compilations, as highlighted in the above discussion), a low standard of originality has
Dossetor Address to the Housing Industry Association’ (Speech delivered at the Sydney Exhibition and Convention Centre, Sydney, 2 May 2008)
One additional point, arising from an architectural copyright case, is of significance to a discussion of Australia’s public domain. It requires revisiting an issue considered in Chapter Four: copyright in representations of objects and scenes.69 In their joint judgment in the Tamawood decision Wilcox and Lindgren JJ note that:
A person who draws or photographs an object does not, through the copyright in the drawing or photograph, become entitled to prevent others from drawing or photographing the same object, even though there may be a striking similarity between the two drawings or between the two photographs.70
Wilcox and Lindgren JJ arguably did not realise that this statement recalls the language used in section 37 of the Victorian Copyright Act 1869 (and its colonial equivalents).71 As discussed in Chapter Four pursuant to that provision that the Act did not prejudice the right of any individual ‘to represent any scene or object notwithstanding that there
66 Despite the fact that a judge has never found that an architectural plan was not an ‘original artistic work’, defendants have continued to raise a lack of originality: see, eg, See Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, 280-281; Dronpool Pty Ltd v Hunter (1984) 3 IPR 310, 325; Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd (1987) 9 IPR 88, 90; LED Builders Pty Ltd v Masterton Homes (NSW) Pty Ltd (1994) 30 IPR 447, 449-456; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309, 312-313; Henley Arch Pty Ltd v Tamawood Pty Ltd (2003) 57 IPR 478, 482-483; Tamawood Ltd (formerly called Tamawood Pty Ltd) v Henley Arch Pty Ltd (2004) 61 IPR 378, 386-387; Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52, 56-57; Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375, [10]-[36]. 67 Henley Arch Pty Ltd v Tamawood Pty Ltd (2003) 57 IPR 478, 482; see also Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 43 IPR 1, 17; Tamawood Ltd (formerly called Tamawood Pty Ltd) v Henley Arch Pty Ltd (2004) 61 IPR 378, 386. 68 See Daniel Sullivan, ‘Idea/Expression Dichotomy: Application to Architectural Plans and Computer Software’ (2002) 76 Australian Law Journal 389; see also Matthew Rimmer, ‘Crystal Palaces: Copyright Law and Public Architecture’ (2002) 14(2) Bond Law Review 320; Matthew Rimmer, ‘The Garden of Australian Dreams: The Moral Rights of Landscape Architects’ in Fiona Macmillan and Kathy Bowrey (eds), New Directions in Copyright Law: Volume Three (2006) 134-170. 69 See Chapter Four, Part II Section C(i) above. 70 Tamawood (2004) 61 IPR 378, 386-387. 71 See 33 Vict no 350 (1869, Vic), s 37; 41 & 42 Vict no 95 (SA), s 35; 42 Vict no 20 (NSW), s 26; 54 Vict no 1067 (1890, Vic), s 38; 59 Vict no 24 (WA), s 36. 217 may be copyright in some representation of such scene or object’.72 I noted in my discussion on this provision in Chapter Four that it is difficult to imagine, at least when viewed through modern eyes, why the legislature felt the need to explicitly affirm this right in statute. No such provision has appeared in any post-Federation Australian copyright law, yet it is clear from the statement made by Wilcox and Lindgren JJ in Tamawood that this public domain doctrine remains. What is interesting, however, is that this public domain doctrine has actually undergone a transition from being initially enshrined in statute to now being part of the common law. Still, most importantly for Australia’s public domain, such a doctrine remains.
Finally, with respect to the exclusive rights of the owner of the copyright in an artistic work, these were defined in section 31(1)(b) as:
The right to reproduce the work in a material form (s 31(1)(b)i)); The right to published the work (s 31(1)(b)(ii); The right to include the work in a television broadcast (s 31(1)(b)(iii); and The right to cause a television programme that includes the work to be transmitted to subscribers to a diffusion service (s 31(1)(b)(iv).
The right to convert an artistic work into a dramatic work, as provided by section 1(2)(c) of the Copyright Act 1911 was, perhaps not surprisingly, not included in the 1968 Act.73 This means that, technically, this type of activity was restored to the public domain, although it is unclear what this entails. Further, the final two rights listed above were subsequently superseded pursuant to the Copyright Amendment (Digital Agenda) Act 2000 (Cth) by the new right ‘to communicate the work to the public’, as was the case with respect to literary works.74
iii. CONCLUSION
From the preceding analysis it is possible to draw a number of conclusions regarding the nature of the public domain under the 1968 Copyright Act.
72 See Chapter Four, Part II, Section C(i). 73 See Chapter Six Part II Section A(ii) above. The Copyright Act 1956 (UK) also failed to include such a provision: see Copyright Act 1956 s 3(5). 74 Copyright Act 1968 (Cth) s 31(1)(b)(ii). 218 First, a low level of originality was an issue for both literary works and artistic works, arguably more so than in any previous Chapter. In contrast to the case law discussed in other Chapters, the later decisions on these issues have established the subsistence of copyright in ‘whole of universe’ compilations as literary works. However, members of the judiciary have suggested that this low standard of originality needs re-evaluation, hinting that a more balanced standard may be applied in the future, implicitly benefitting the public domain.
Second, the idea/expression dichotomy remained an important consideration in cases on originality and more generally. Indeed, the case law arising under the Copyright Act 1968 highlighted the significant application of this public domain doctrine within a new category: architectural plans. The public domain-based ideas, contained in such plans, can be used within every Australian home – thus expanding the potential significance of the public domain to homes, rather than merely entertainment or culturally-based products.
Third, an expansion of the rights of the owner of the copyright in both artistic and literary works continued. In terms of literary works, new broadcast and diffusion rights were granted under the 1968 Act as passed, then subsequently amalgamated into a communication right to deal with new digital issues. The owner of the copyright in an artistic work was granted a broadcast right and an additional right where there work was included in a television show and subsequently transmitted via a diffusion service. Again, these rights were amalgamated into a new communication right. Today, the owner of the copyright in a literary or artistic work has extensive control, both online and offline, as to what can be undertaken with respect to his or her work.
B. TERM OF PROTECTION
i. LITERARY WORKS
By 1968, the term of protection for literary works was essentially a moot point, as the Berne-specified minimum period of protection was now firmly ingrained in Australian copyright law.75 The Copyright Act 1968 did introduce one minor change to the life-
75 In its 1959 report the Spicer Committee questioned whether a reduction in the term of protection was preferable given Australia’s status as an importer nation, although ultimately recommended that the term remain the same: the Spicer Committee, above n 3, [50]; see also LR Zines, ‘Revision of 219 plus-50 period of protection: rather than the term of copyright in a literary work expiring 50 years after the date of publication of the work, it would expire 50 years from the end of the calendar year in which publication occurred. The reason given in the Federal Parliament for this minor extension was that ‘[i]t is usually much easier to remember or to find out the year in which a particular event occurred than the actual date on which it happened.’76 On that basis, a number of calculations can be made regarding the length of protection for published literary works, prior to 2004.
Tables J and K are constructed as follows. Separate Tables are once again employed for males and females. The first column of each table provides the relevant period of years. The second column states the age of the author during that period; given the period that each Table spans, the age has been set at 35. The third column provides the number of additional years that the author would have expected to live at that time, based on data from the Australian Bureau of Statistics. The fourth column states the approximate year of death of the author, based on the statistics provided in the third column. The fifth column provides the year in which copyright would have expired (the year of death of the author, plus 50 years).
Copyright Law’ (1963) 37 Australian Law Journal 247, 249; Benedict Atkinson, The True History of Copyright: The Australian Experience 1905 – 2005 (2007) 285-288. The Spicer Committee also rejected a submission by the Australasian Performing Rights Association to extend the term of copyright protection based on the need for uniformity with European nations: Ibid [503]. 76 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 16 May 1968, 1531 (Mr Nigel Bowen). 220 TABLE J: DURATION OF COPYRIGHT IN LITERARY WORKS PRODUCED BY MALES IN LIGHT OF 77 LIFE EXPECTANCIES IN THE PERIOD 1967-2004
Year Example Expectation of Year of Death Year in of Age Additional Based on Earliest Which Years of Life Date as Copyright at that Age Calculation (eg Would Expire 1970, 1975, etc) 1970 – 1972 35 36.23 2006 2056 1975 – 1977 35 37.46 2012 2062 1980 – 1982 35 38.77 2018 2068 1985 – 1987 35 40.12 2025 2075 1990 – 1992 35 41.37 2031 2081 1995 – 1997 35 42.57 2037 2087 1997 – 1999 35 43.11 2040 2090 1999 – 2001 35 43.84 2042 2092 2000 – 2002 35 44.08 2044 2094 2002 – 2004 35 44.61 2046 2096
TABLE K: DURATION OF COPYRIGHT IN LITERARY WORKS PRODUCED BY FEMALES IN LIGHT 78 OF LIFE EXPECTANCIES IN THE PERIOD 1967-2004
Year Example Expectation of Year of Death Year in of Age Additional Based on Earliest Which Years of Life Date as Copyright at that Age Calculation (eg Would Expire 1970, 1975, etc) 1970 – 1972 35 41.88 2011 2061 1975 – 1977 35 43.43 2018 2068 1980 – 1982 35 44.81 2024 2074 1985 – 1987 35 45.63 2030 2080 1990 – 1992 35 46.61 2036 2086 1995 – 1997 35 47.44 2042 2092 1997 – 1999 35 47.84 2044 2094 1999 – 2001 35 48.43 2047 2097 2000 – 2002 35 48.57 2048 2098 2002 – 2004 35 48.95 2050 2100
77 Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.2: Life expectancy at single ages (ex), males, Australia, 1881 onwards’, 2008,
The more significant term extension occurred on 1 January 2005, as a result of the Australia-United States Free Trade Agreement 2004 (AUSFTA). That bilateral free trade agreement stipulated that both Australia and the United States had to provide copyright protection for literary works for the term of ‘life of the author and 70 years after the author’s death’ for published works.79 In the case of posthumous publications, the term of protection was to be ‘70 years from the end of the calendar year of the first authorised publication of the work’ for unpublished literary creations.80 Where an authorised publication of the work had not occurred within 50 years from the creation of the work, it was also provided that copyright could end ‘not less than 70 years from the end of the calendar year of the creation of the work’ – that is, copyright in unpublished works could expire after a period of 70 years.81
As United States law already included these terms of protection – and those amendments had survived a constitutional challenge in Eldred v Ashcroft,82 as discussed in Chapter Two83 - only Australia was required to amend its copyright law. This was despite previously resisting the introduction of a term extension after it was adopted in by the European Union and United Kingdom,84 and an undertaking only a few years earlier by the Federal Government that it would not extend the term of copyright.85
79 Australia United States Free Trade Agreement 2004 Art 17.4.4(a). 80 Australia United States Free Trade Agreement 2004 Art 17.4.4(b)(i). 81 Australia United States Free Trade Agreement 2004 Art 17.4.4(b)(ii). 82 537 US 186 (2003). 83 See Chapter Two Part I above. 84 See Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/9; The Duration of Copyright and Rights in Performances Regulations 1995 (UK) (Statutory Instrument 1995 No 3297) reg 5. 85 In 2000 the Intellectual Property and Competition Review Committee recommended against the extension of the term of copyright: see Intellectual Property and Competition Review Committee, Review of intellectual property legislation under the Competition Principles Agreement (2000) 84. In its response to the Committee, the Federal Government accepted the recommendation and further 222
The proposed term extension attracted strong criticism across politics,86 the judiciary,87 industry,88 public interest organisations,89 the media90 and academia.91 Australian Democrats Senator Aden Ridgeway, for example, noted in Senate debate that the term extension
compounds the problem as far as social and education policy goes in terms of our young people and certainly our institutions of higher learning being able to access the information, which was always thought to be free in the public domain once it got there.92
stated that ‘[t]he Government has no plans to extend the general term for works (life of the author plus 50 years)’: see Government Response to Intellectual Property and Competition Review Recommendations, 28 August 2001
Despite the [US] Supreme Court’s ruling [in Eldred], and the willingness of Australian negotiators to accept the position of the United States, it is extremely difficult to understand the policy justification for a further extension for the term of copyright, let alone the application of the extension to existing copyright.94
In many respects, it is unfortunate that any real recognition of the Australian public domain had to wait until the 2004 term extension, as both commentators and members of the legislature finally began to refer to the Australia’s public domain as a positive space. Eventually the requisite changes were implemented as part of the US Free Trade Agreement Implementation Act 2004 (Cth) and section 33(2) of the Copyright Act today provides that copyright subsists in a published literary work ‘until the end of 70 years after the end of the calendar year in which the author of the work died.’ For unpublished literary works that are published posthumously, copyright protection extends for 70 years following publication.95 However, the Federal Government did not take advantage of the one clause of the AUSFTA that would have aided the public domain – the set period of 70 years protection for unpublished works was not introduced and thus perpetual copyright for unpublished literary works remains.96
It is important to consider whether the AUSFTA extension had as great an impact on Australia’s public domain as the accompanying outcry suggested. Certainly, the extension did have some effect on the Australian public domain, as reflected in Senator Ridgeway’s statement: due to the extension it will be an additional 20 years before a literary work enters Australia’s public domain. However, there is evidence to suggest that term extension was not as damaging as it potentially could have been, particularly as the extension was prospective rather than retrospective. The effect of the prospective extension was that only works still protected under copyright were entitled to the
93 See Chapter Two Part III Section A; Chapter Seven Part II Section A(i) above. 94 Justice Sackville, above n 87, 32. 95 Copyright Act 1968 (Cth) s 33(3). 96 In Appendix A I posit that one of the most beneficial reforms to Australia’s public domain would be the introduction of a defined term of protection for unpublished works and suggests ways that this might be achieved: see Appendix A Part III Section A below. 224 additional term; copyright in works that had already entered the public domain was not revived.97
According to Rimmer ‘the [Australian] Government was nervous about implementing a retrospective extension of the copyright term’.98 It is unclear why this would be the case, particularly given the treatment of the public domain that I have identified in this Thesis. There does not appear to be any particular reason why, at that particular time, the Australian Government would have been hesitant to revive copyright in public domain works. As this Thesis has revealed there has never been any formal or informal government policy with respect to copyright and the public domain. Indeed, this decision merely highlights the haphazard legislative approach to the public domain that has been identified throughout this Thesis.
Further, when viewed against previous extensions to the term of copyright in Australia, it is apparent that the AUSFTA extension did not have the largest effect on Australia’s public domain. As discussed above in Chapter Six, the extension to the term of copyright under the Copyright Act 1912 arguably had a more significant impact on the Australian public domain. This is not to dismiss the detrimental significance of the AUSFTA extension, but simply to illustrate that, when viewed against the broader background of Australian copyright history, the previous extension had a greater impact on Australia’s public domain and when works would begin to enter that space.
The following calculations regarding the future expiration of copyright in works in Australia support such a statement. It is important to note that the preceding tables commence with a period of publication of 1932 – 1934. As illustrated in Tables F and H in Chapter Six, copyright in any works produced in this period would continue until 2008 at the earliest, after the introduction of the 2004 term extension. On that basis the
97 Graham Greenleaf, ‘National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)’ (2009) 6 SCRIPT-ed 259, 278-279
In Tables L and M, the first column identifies the period that publication of the literary work occurred. The second column provides an example of the age of an author; again, set at 35. The third column states the expected year of death of that individual, while the fourth column illustrates the year that copyright would have expired pursuant to a ‘life- plus-50’ term. The fifth column provides a contrast to this with the year that copyright will in that literary work will now expire, following the AUSFTA extension. The sixth column lists the total number of years that copyright would subsist in that work.
226 TABLE L:
DURATION OF COPYRIGHT IN LITERARY WORKS PRODUCED BY MALES IN LIGHT OF LIFE EXPECTANCIES IN THE PERIOD 1932-2004 AND THE AUSFTA TERM EXTENSION
Period of Example Year of Expiration of Post- Total Term Publication of Age Death Term After Life AUSFTA of Plus 50 Years Term Copyright 1932 – 1934 35 1967 2017 2037 105 years 1946 – 1948 35 1981 2031 2051 105 years 1953 – 1955 35 1989 2039 2059 106 years 1960 – 1962 35 1996 2046 2066 106 years 1965 - 1967 35 2001 2051 2071 106 years 1970 - 1972 35 2006 2056 2076 106 years 1975 – 1977 35 2012 2062 2082 107 years 1980 – 1982 35 2018 2068 2088 108 years 1985 – 1987 35 2025 2075 2095 110 years 1990 – 1992 35 2031 2081 2101 111 years 1995 – 1997 35 2037 2087 2107 112 years 1997 – 1999 35 2040 2090 2110 113 years 1999 – 2001 35 2042 2092 2112 113 years 2000 – 2002 35 2044 2094 2114 114 years 2002 – 2004 35 2046 2096 2116 114 years
TABLE M: DURATION OF COPYRIGHT IN LITERARY WORKS PRODUCED BY FEMALES IN LIGHT OF LIFE EXPECTANCIES IN THE PERIOD 1932-2004 AND THE AUSFTA TERM EXTENSION
Period of Age Year of Expiration of Post- Total Term Publication Death Term After Life AUSFTA of Copyright Plus 50 Years Term 1932 – 1934 35 1970 2020 2040 108 years 1946 – 1948 35 1985 2035 2055 109 years 1953 – 1955 35 1993 2043 2063 110 years 1960 – 1962 35 2001 2051 2071 111 years 1965 - 1967 35 2006 2056 2076 111 years 1970 - 1972 35 2011 2061 2081 111 years 1975 – 1977 35 2018 2068 2088 113 years 1980 – 1982 35 2024 2074 2094 114 years 1985 – 1987 35 2030 2080 2100 115 years 1990 – 1992 35 2036 2086 2106 116 years 1995 – 1997 35 2042 2092 2112 117 years 1997 – 1999 35 2044 2094 2114 117 years 1999 – 2001 35 2047 2097 2117 118 years 2000 – 2002 35 2048 2098 2118 118 years 2002 – 2004 35 2050 2100 2120 118 years
227 Even if consideration is restricted to the final column in each of the above Tables it is apparent that the term of copyright has come a far way from the ‘life-plus-seven’ or 42 year possible periods of protection that were Australian law only a century beforehand under the Copyright Act 1905. The shortest period of protection above is 105 years, for a work published by a male aged 35 in the early 1930s. Due to an increase in life expectancies over the 20th and 21st centuries, this period has been incidentally increased by a decade. Thus, even aside from the AUSFTA extension, because of increased life expectation, copyright now subsists for well over a century. When the final three columns are viewed in their entirety, it is undeniable that the AUSFTA compounded this problem. Without that extension, for example, copyright in a book published by a 35 year-old female in 2002 would still subsist for approximately 98 years.
In conclusion, it is important to note that the practical implications and broader impact on the public domain, where copyright extends for 118 years, are not yet known. Indeed, it is arguable whether future technologies may need to be designed with such restrictions in mind.99
ii. ARTISTIC WORKS
Under the original 1968 Act, the same term of protection for literary works applied to artistic works, with a few notable exceptions. Pursuant to section 33(2) copyright subsisted in an artistic work ‘until the expiration of fifty years after the expiration of the calendar year in which the author of the work died.’ This was extended to 70 years under the AUSFTA. Further, as was the case under the Copyright Act 1911, artistic works were also excluded from the operation of section 33(3), with the result that there could be no perpetual copyright in these works.100
There were, however, two exceptions to these general provisions that will be the focus of this discussion. The first was for engravings. As was the case under section 17(1) of the Copyright Act 1911, engravings were protected under the 1968 statute until post- mortem publication and ‘fifty years after the expiration of the calendar year in which the
99 For a greater discussion on the future of law and technology see Jonathan Zittrain, The Future of the Internet and How to Stop It (2008), particularly Part III ‘Solutions’. 100 See also James Lahore, Intellectual Property Law in Australia – Copyright (1977) [708]. 228 engraving is first published.’101 This period was extended to 70 years pursuant to the AUSFTA. However, if the engraving remained unpublished then copyright would never expire. This remains the case today.
The second instance is also of significance to a discussion of the Australian public domain. Pursuant to section 33(6), copyright in a photograph would subsist ‘until the expiration of fifty years after the expiration of the calendar year in which the photograph is first published’. This was in direct contrast to section 21 of the 1911 Act, where it was stated that copyright would subsist from the making of the original negative for 50 years, but consistent with the UK approach until the Copyright Act 1956.102 It was also one of the recommendations made by the Spicer Committee, on the basis ‘that the term prescribed by the 1956 Act is more appropriate in view of the advances that have been made in photography since 1911.’103 Further, this change to the term of copyright was specifically highlighted in parliamentary debate on the 1968 Act, where it was aptly noted by the Attorney-General that ‘there will now be a perpetual copyright in an unpublished photograph.’104
What is interesting, however, for the purposes of a discussion of the Australian public domain is that this provision has since been removed by the US-Free Trade Agreement Implementation Act 2004 (Cth). Photographs are now protected for the same period as other artistic works: life of the author plus 70 years. The reason for this was explained in the Explanatory Memorandum to the 2004 statute: although Article 7(4) of the Berne Convention allowed for a different duration of copyright for photographs, pursuant to Article 9 of the 1996 WIPO Copyright Treaty, this Article was not to be applied.105 It was further stated that the ‘amendments are intended to implement article 9. This change will give photographers equal treatment with other artistic creators and, in most cases, benefit photographers by lengthening the term of protection for photographs.’106 However, as the AUSFTA required Australia to accede to the WIPO Copyright Treaty, this change was clearly tied to that multilateral free trade agreement. Thus, on the one
101 Copyright Act 1968 (Cth) s 33(5). 102 Copyright Act 1956 (UK) s 3(4)(b). 103 The Spicer Committee, above n 3, [75]. 104 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 16 May 1968, 1530 (Mr Nigel Bowen). 105 Explanatory Memorandum, US Free Trade Agreement Implementation Bill 2004 (Cth) 112. 106 Ibid. 229 hand, this provision benefitted the Australian public domain by removing the possibility of perpetual copyright for photographs; yet on the other the change also increased the period of protection available for photographs.
iii. CONCLUSION
A number of issues regarding the term of copyright and the public domain have been revealed from this discussion.
First, under the Copyright Act 1968 two extensions to the term of copyright for literary works have occurred: a minor extension at the introduction of the statute and then the more substantial extension pursuant to the AUSFTA. Of all the extensions to the term of copyright that have occurred under Australian law, the AUSFTA extension was the first time that the broader Australian public had the opportunity to voice an opinion on this extension. It was due this criticism that the concept of the public domain finally gained a place in public discourse.
Second, despite the fact that the AUSFTA extension had an undeniable impact on the public domain – copyright now has the potential to run for 118 years – when viewed against the history of the public domain it is clear that the 1912 life-plus-50 extension had a greater impact on Australia’s public domain than the AUSFTA extension. Further, it is unfortunate that the Federal Government did not use the opportunity of the AUSFTA to end a doctrine that has been identified in every Chapter of this Thesis for its detrimental impact on Australia’s public domain – perpetual copyright in unpublished literary works.
Third, the issue of different periods of protection for artistic works continued in this Chapter, a feature that has been present since the colonial copyright statutes. However, as this Chapter illustrated, today the majority of artistic works are protected for the same period, as required under the AUSFTA.
230 C. ADDITIONAL PUBLIC DOMAIN FEATURES
i. PUBLISHED EDITIONS
In any area of law it is rare to be able to pinpoint where the seeds of a new doctrine or groups of rights were formed, however, it is possible to do so with respect to published edition copyright. This concept emanated specifically from a submission made by the UK Publishers Association to the UK Gregory Committee in 1952. In its final report the Gregory Committee stated that:
The Publishers Association have suggested that there should be a copyright in typography. By this they did not mean that particular type designs or founts [sic] should be protected by the Copyright Act…They were seeking protection for typographical arrangements so that a particular edition of a literary or musical work printed by or for a publisher could not be directly and exactly copied by an unscrupulous competitor by photo-lithography or similar means.107
On the basis of this recommendation, section 15 of the Copyright Act 1956 (UK) incorporated protection for typographical arrangements and in its subsequent report the Spicer Committee also recommended the inclusion of a provision similar to section 15 in any forthcoming Commonwealth copyright statute.108 Thus, when the Copyright Act 1968 was introduced Part IV included several sections providing for the subsistence and ownership of copyright in ‘published editions’.
Section 92 provided that copyright subsisted in a published edition of a literary, dramatic, musical or artistic work, or combination of such works, where first publication took place in Australia or the publisher was a qualified person at the date of first publication. Section 88 clarified the nature of this right as ‘the exclusive right to make, by a means that includes a photographic process, a reproduction of the edition.’ Section 96 further provided that copyright subsisted for 25 years after the end of the calendar year in which the published edition was first published.109 These provisions remain the same today.
From a public domain perspective, the introduction of published edition copyright is significant as it was the first time that a publisher was granted any type of right in a
107 Great Britain, Report of the Copyright Committee, Cmd 8662 (1952) [306]. 108 The Spicer Committee, above n 3, [301]-[302]. 231 public domain book that it published for sale.110 Indeed, it was arguably due to the thriving market for public domain books – both in the United Kingdom and subsequently in Australia – that this type of right needed to be introduced. As the Gregory Committee noted in its report that ‘if the work printed [in the published edition] is itself out of copyright, there is nothing to prevent the unscrupulous competitor from copying the work photographically and so benefiting unfairly from the work of the original publisher.’111 Therefore, it was because of the popularity and success of cheap editions of public domain works that this private right was introduced, to protect publishers who created such editions.
It is important to note, however, that the subsistence of published edition copyright did not affect the copyright – or lack thereof – in the underlying work, as provided in section 113(1) and confirmed in Nationwide News v Copyright Agency Ltd.112 In that case, a group of newspaper publishers argued that CAL had authorised the infringement of the published edition copyright that each held in their respective newspapers.113 Ultimately, Sackville J, delivering the opinion of the Full Federal Court, found that no copyright infringement had occurred, or that CAL had authorised any such infringement. In coming to this conclusion, Sackville J mused on the concept of published edition copyright with respect to substantiality, invoking the language of another aspect of Australia’s public domain:
The general principle of copyright law is that copyright does not extend to ideas, but only to the expression of those ideas. But in the case of a published edition copyright, what is protected is not a particular collocation of words or musical notes, or a photographic representation[.] Published edition copyright protects the presentation embodied in the edition. This form of copyright, as the legislative history shows, protects such matters as typographical layout. However, it also protects other aspects of presentation, such as juxtaposition of text and photographs and use of headlines.114
Thus, in the same manner as the expression must be separated from the idea, the published edition must be separated from the underlying work. If no copyright subsists
109 This period was not extended under the AUSFTA. 110 In the Gregory Committee report it was suggested that, in some jurisdictions, unfair competition may have been one method of recourse for the reproduction of published editions in which there was no copyright in the underlying work: see Great Britain, Report of the Copyright Committee, Cmd 8662 (1952) [306]. 111 Ibid. 112 (1996) 136 ALR 273; see also Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497, 503. 113 Nationwide News v Copyright Agency Ltd (1996) 136 ALR 273, 275. 114 Nationwide News v Copyright Agency Ltd (1996) 136 ALR 273, 290-291. 232 in the underlying work, then published edition copyright will not change this. The work would still remain part of the Australian public domain.
Another provision, section 92(2), must also be considered for its effect on Australia’s public domain. This subsection provided that copyright would ‘not apply to an edition that reproduces a previous edition of the same work or works.’ Such a provision is reminiscent of section 27 of the Copyright Act 1905 and the parliamentary debate surrounding its enactment. As noted in Chapter Five, section 27 granted copyright to second or subsequent editions of books where ‘material or substantial alterations’ had been made to the previous edition of that book, thus justifying the subsistence of copyright in the new edition. Yet, the provision also stated that it did not operate to ‘prejudice the right of any person to reproduce a former edition…after the expiration of the copyright in the former edition.’
Even today, section 92(2) operates to the same effect, albeit in a diluted form. First, there can be no perpetual copyright in a published edition; once the initial 25 year period ceases, copyright expires for good. Of course, any copyright in the underlying work will still remain. Second, however, by confirming that no copyright subsisted in later reproductions of published editions, section 92(2) also implicitly suggested what was previously enacted in section 27: that once copyright has expired in that published edition, the public can freely reproduce it. Unfortunately, section 92(2) did not incorporate this as a ‘right’.
III. AUSTRALIA’S PUBLIC DOMAIN TO THE PRESENT DAY
Chapter Seven has presented a picture of a thorny statute, accompanied by equally difficult interpretations of its provisions. Amidst this consideration, however, elements of the public domain have emerged: some that have made appearances in previous Chapters and others that were entirely new. In the former category, comments from the judiciary indicated the common law adoption of the doctrine that to create a drawing of an object does not mean copyright will preclude another from doing the same and, although the standard of originality continued to drop, the flicker of the public domain remained in discussions on that issue. In the latter, the idea/expression dichotomy proved to be of significance for Australian homes and the introduction of published
233 edition copyright reflected the success of the public domain publishing industry considered in previous Chapters. Ultimately, the provisions discussed in this Chapter have reinforced the proposition that the public domain cannot always be divided into simple categories - and again that greater research is needed into these issues.
Further, this Chapter also challenged previous public domain literature suggesting that it has only been pursuant to the Copyright Act 1968 - and its many accompanying amendments - that an ‘enclosure’ of Australia’s public domain has occurred.115 Arguably, the best example of this is with respect to the AUSFTA term extension. The 2004 extension was touted by copyright commentators as condemning Australia’s public domain to a premature and ultimately untimely death. However, as both the analysis of the legislative provisions that enacted this extension and a consideration of the number of years that copyright will subsist for under the life-plus-70 term revealed, while the AUSFTA term extension did have an impact on Australia’s public domain, it was not the most damaging extension. That remains with the Copyright Act 1912, when copyright was extended from life-plus-seven or 42 years, whichever period was longer, to life-plus-50 years.
My legislative exploration is now at an end. It is now time to consider more broadly what has been discovered about the Australian public domain: it boundaries, its distinctive features and, ultimately, its potential significance under Australian law.
115 To use the term of Boyle’s: see, eg, James Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 Law and Contemporary Problems 33 234 CHAPTER EIGHT
CONCLUSIONS ON AUSTRALIA’S PUBLIC DOMAIN
I. INTRODUCTION: MARCUS CLARKE REVISITED
This Thesis commenced from a place of scepticism with respect to the public domain. I was concerned with being unable to reconcile the rhetoric of the public domain, espoused in United States and other international literature, with the reality of this space in an Australian context. The broad public domain of the past, caused by inadequate colonial and Imperial legislation, left one of Australia’s most revered colonial novelists – and, not surprisingly given the discussion in this Thesis, my favourite author - with literary property that was ‘comparatively valueless except in one small part of the world’, the colony of Victoria.1 In my initial research, I was unable to find any reason that helped me to understand why any copyright scholar could respect a space that was responsible for unfairness to authors, or why Australian intellectual property scholars had recognised this issue but failed to analyse this situation and its repercussions more fully.2
Over the course of undertaking this research my position on Australia’s public domain has changed, for two reasons. The first is due to the analysis contained in Chapters Two through Seven. Australia’s public domain is arguably far broader and more complex than either I, or indeed any other Australian copyright scholar, could have envisaged. The colonial position that I had initially judged as unjust for its effect on Marcus Clarke, in reality provided a diverse basis for the development of colonial culture, particularly with respect to dramatisations and colonial theatre. Clarke himself benefitted (at least financially, as opposed to any reputational benefits) from that situation. In contrast, newspapers were able to gain monopolies on information contained in telegraphic messages, against one of the fundamental aspects of the public domain and indeed democracy more generally. Analysis of the post-Federation Australian Constitution and copyright statutes provided greater insight into the boundaries and significance of the public domain and the continuing diminution of this
1 John Finnamore, ‘Imperial Copyright, As Affecting the Colonies’ [1881] The Victorian Review 713, 721. 2 See Chapter One Part I above. 235 space over time. The translation of the public domain and the themes emerging from this analysis will be discussed in Part II below.
The second reason is based on a book review that I read while completing this Thesis. On Saturday 12 September 2009, the New South Wales-based newspaper The Sydney Morning Herald published a review of Cyril Hopkins’ Marcus Clarke, an edited version of a biography written by one of Clarke’s English school friends, Cyril Hopkins.3 The manuscript, held at the Mitchell Library branch of the State Library of New South Wales, had been updated and subsequently published in August 2009.4 Early in this critique of Cyril Hopkins’ Marcus Clarke the reviewer poses a question that may have been running through the minds of many Saturday-morning Herald readers: ‘So why publish a 250-page edited version of Cyril Hopkins’s account (plus 70 pages of notes and attributions) in 2009, 128 years after Clarke’s death?’5
The status of For the Term of His Natural Life as one of Australia’s great novels is forwarded in response, though the answer may also have come from a consideration of other books reviewed in the Herald in recent months, all with a focus on Australian history and literature.6 Similarly, a number of feature and television-based films had been released in 2009, all concerning convictism.7 A biography of one of Australia’s most notable authors – who immortalised that particularly notorious time in Australia’s history – continues this focus. To me, however, both the publication of Cyril Hopkins’
3 Steve Meacham, ‘Serious side of a literary dandy’, The Sydney Morning Herald, Spectrum supplement, 12-13 September 2009, 33. 4 Laurie Hergenhan, Ken Stewart and Michael Wilding (eds) Cyril Hopkins’s Marcus Clarke (2009) xliii. 5 Meacham, above n 3, 33. 6 See eg Babette Smith, ‘The Colony: A History Of Early Sydney’, The Sydney Morning Herald, 7 July 2009
For me this situation was highlighted by another question posed by the reviewer of Cyril Hopkins’ Marcus Clarke, a few paragraphs in: why Clarke never pursued a writing career in the United Kingdom.8 During the late nineteenth century it was common for Australian authors to head to London to establish a literary reputation abroad, after enjoying some success as authors or journalists in Australia.9 Yet, by the time of his death Clarke had ‘barely made a ripple in British publishing’,10 despite the fact that His Natural Life had been published in the United Kingdom in 1878. Similarly, one of the editors of Cyril Hopkins’ Marcus Clarke, Michael Wilding, notes in the Herald review that ‘Hopkins’s memoir shows how desperate Clarke was for international recognition and how prepared he was for serious literary criticism.’11 Meacham suggests Clarke’s family as the reason he remained in Victoria, speculating that ‘[g]iven his literary ambitions, it might have been expected that the single Clarke…would return to Britain.’12
Such speculation suggests that Clarke may have enjoyed greater commercial and critical success had he returned to England, or even if His Natural Life had been first published within the United Kingdom. However, it fails to recognise the stronger legal position that Clarke would also have experienced had either event occurred. Literary success and
8 Meacham, above n 3, 33. 9 See generally, Richard Nile and David Walker, ‘The “Paternoster Row Machine” and the Australian Book Trade, 1890 – 1945’ in Martyn Lyons and John Arnold, A History of the Book in Australia 1891 – 1945 (2001) 3-18. 10 Meacham, above n 3, 33. 11 Ibid. 12 Ibid. 237 adequate copyright protection are quite distinct issues, but too often considerations of commercial success are divorced from the legal position of authors at that time. Commentary on Clarke, other colonial authors and the development of Australian literary culture more generally focuses on the commercial and national and international success of individual authors and industry, rather than providing any consideration of the legal foundations underpinning that industry at the relevant time. For example, in Cyril Hopkins’ Marcus Clarke, the Introduction recounts a story that I also discussed in Chapter Four, regarding a ‘pirate’ dramatisation of Clarke’s novel Long Odds.13 The quote extracted recognises Clarke’s anger at the state of copyright law at the time; yet rather than exploring the issue of copyright in greater detail the biography moves to a discussion of which of Clarke’s works were actually published in the United Kingdom.
Failure to engage in such a discussion results in two important issues being overlooked: first, the different position that Clarke would have found himself in had first publication of his works occurred in the United Kingdom, thus perhaps resulting in a wider reputation but definitely in more adequate copyright protection and what that may have meant for his career;14 and second, the fact that, as illustrated in Chapter Four, such ‘pirate’ dramatisations appear to be quite vital to the development of colonial theatre and Clarke himself engaged in such a practice.15 Thus, greater consideration of industry, social practices, and law reveals the complex interrelationship between these elements – and, most importantly for the purposes of this Thesis, the sustained role that the public domain has played in the development of each in Australia. That ongoing role – and the fact that far greater research on that role is needed – is the second reason why my opinion of the public domain has changed.
In the 128 years since Marcus Clarke passed away, copyright in Australia has developed beyond what any colonial author or legislature could have imagined. This Thesis has mapped the evolution of the public domain against this expansion, as Australia’s Constitution was drafted and its copyright law developed under the colonial copyright statutes, the Copyright Act 1905 (Cth), the Copyright Act 1912 (Cth) and the Copyright Act 1968 (Cth). Chapters Two and Three considered the public domain against the
13 Hergenhan, Stewart and Wilding, above n 4, xxxvi; see Chapter Four Part II Section A(i) above. 14 See Chapter One Part I above. 15 See Chapter Four Part II Section A(i) above. 238 backdrop of two doctrines of the Australia Constitution - the role that it plays with respect to the ‘copyrights’ provision of the Australian Constitution and its possible importance with regard to the Australian constitutional implied guarantee of freedom of political communication. Chapters Four, Five, Six, and Seven have complemented this constitutional analysis by providing a legislative and historical grounding for the public domain in Australian copyright law. Although, in each Chapter, the exclusive rights of the copyright owner became more expansive and the term of copyright protection longer, throughout each stage of development of Australia’s national copyright law elements of the public domain have always been present.
Based on the analysis in the preceding seven Chapters, in this Chapter I draw a number of conclusions regarding the nature and possible significance of Australia’s public domain. In Part II, I consider the traditional categories of the public domain and evaluate whether, and, if so how, these categories have been translated in an Australian context. In Part III, I examine a number of themes that have emerged from the foregoing analysis - the ‘negative’ Australian public domain; the changing role of Australia’s public domain from the colonial period through to today; and finally the relationship between copyright, the public domain and public rights in Australia. Part IV provides an overview of the issues raised and concludes this Thesis.
II. THE CATEGORIES COMPRISING THE PUBLIC DOMAIN AND THEIR RELEVANCE IN AUSTRALIA
In Chapter One I identified seven categories that are considered to comprise the ‘traditional’ public domain:
A. Works that pre-dated protection under any Australian copyright statute; B. works where the statutory-based term of copyright has expired; C. works that did not meet any statutory formalities required for the subsistence of copyright; D. works did not meet the judicially-set standard of originality for the subsistence of copyright; E. facts, ideas and information;
239 F. activities that could be undertaken with respect to a copyright-protected work as such actions were not included in the exclusive rights of the copyright owner; and G. works and other creations that a statute explicitly states that copyright does not subsist in.16
In this Part I will consider the existence of each of these categories of the public domain under Australian law
A. PRE-STATUTORY COPYRIGHT PROTECTION
Works created prior to the creation of statutory copyright are traditionally considered to be a part of the public domain: as copyright would not have subsisted in such works, these creations would have automatically entered the public domain. However, in an Australian context, Chapter Four revealed that there was some protection available to works created in the colonies prior to the introduction of the various colonial copyright statutes. For example, section 14 of the Copyright Act 1869 (Vic)17 provided both retrospective and prospective protection for literary works first published within the colony of Victoria during the lifetime of the author. Every book that was first published in that jurisdiction ‘before or after the passing of [that] Act’ would have been entitled to copyright pursuant to that provision. Thus, books published in the colony of Victoria would have fallen into one of two categories: if the term of copyright still applied, the book would be protected by copyright or, if the relevant period had expired, that book would remain a part of the public domain.
In a similar vein, section 36 of the Victoria Copyright Act 1869 provided that copyright subsisted in every ‘new and original’ artistic creation, ‘which shall be or shall have been made in the colony of Victoria’. Retrospective and prospective protection was therefore available to paintings, drawings, sculptures, engravings, and photographs. However, there was one exception to this protection that did not apply in the case of books: where the artistic creation had been sold or disposed of prior to the commencement of the 1869 statute, copyright would not subsist in that creation. The reason for this is unclear; as noted in Chapter Four, few reasons were given regarding the provisions of the Victorian
16 See Chapter One Part II above. 17 33 Vict no 350 (1869, Vic). 240 Copyright Act. One possibility is that, as the artist had already made a profit from that artistic creation, the Parliament deemed copyright protection to be inappropriate. This reason was forwarded in Chapter Six with respect to the denial of an ongoing length of protection for unpublished artistic works.
Further, although copyright may have subsisted in these cases once the Copyright Act 1869 was introduced, it must be remembered that copyright only protected the creation throughout the colony of Victoria. As noted at multiple points throughout this Thesis, this was the case until the introduction of the International Copyright Act 1886. Therefore, although copyright may have subsisted in works created prior to the introduction of statutory copyright law, there were a number of substantive and geographical limitations on that protection.
Thus, although some retrospective protection was provided for works created in the colonies and, after 1886 that protection would have extended beyond the boundaries of that individual colony, a large amount of colonially-created content would not have been entitled to copyright and would have remained in the public domain.
B. WORKS WHERE COPYRIGHT HAS EXPIRED
The expiration of copyright is the most traditional method for a published work to enter the public domain. Chapters Four through Seven examined how the term of copyright has developed over statutes and time and subsequently when certain categories of (predominantly) works would have entered the public domain. Further, amendment to the duration of protection for different works was also the most consistent method by which the boundaries of Australia’s public domain were altered.
The terms of protection for published literary works from the colonial statutes through the current provisions of the Copyright Act 1968 are illustrated in the following table:
241
TABLE N: LOCAL COPYRIGHT STATUTES AND TERMS OF PROTECTION FOR LITERARY WORKS
Statute Term of Protection Copyright Act 1869 (Vic), Copyright Act Life of the author plus seven years, or 42 1878 (SA), Copyright Act 1879 (NSW), years Copyright Act 1890 (Vic), Copyright Act 1895 (WA) Copyright Act 1905 (Cth) Life of the author plus seven years, or 42 years Copyright Act 1912 (Cth) Life of the author plus 50 years Copyright Act 1968 (Cth) Life of the author plus 50 years Copyright Act 1968, as amended pursuant Life of the author plus 70 years to the Australia-United States Free Trade Agreement 2004
The statistics presented in Chapters Four through Seven illustrated how the various terms of copyright listed in Table N, coupled with constant increases in life expectancy for both men and women, have shaped the total duration of copyright for literary works and thus when these works will enter Australia’s public domain. For example, if a woman published a book aged 35, while the colonial laws were in force she would have received a total of 42 years protection; under the 1905 statute 42.37 years protection; under the 1912 statute, depending on the year of publication, between 87 and 91 years; and, today, following the AUSFTA extension and again depending on the year of publication, between 108 and 118 years.
Throughout this Thesis, I have noted the recurrent argument that the AUSFTA term extension has had the most negative effect on Australia’s public domain to date. However, the evidence presented in Chapters Four through Seven has illustrated that although it would be difficult to deny that the AUSFTA extension was detrimental to Australia’s public domain, the adoption of the Berne Convention ‘life-plus-50’ term of copyright had a far greater effect on the boundaries of the public domain. As illustrated in Tables D and E in Chapter Six, if a 35-year-old Australian man published a book in 1932, then that book would not enter the public domain until 2017, after 85 years of copyright protection. The 20-year term extension under the AUSFTA exacerbated issues with regard to the duration of copyright (copyright will now subsist until 2037), but it did not have as great an impact as the 1912 extension.
242 With respect to the artistic creations, the term of copyright and its impact on the boundaries of Australia’s public domain the position is more difficult, given that different terms were provided for different works and the continual amendment of these terms through statute. Two tables are required to illustrate the relevant terms of copyright for works protected falling into this category.
TABLE O: LOCAL COPYRIGHT STATUTES AND TERMS OF PROTECTION FOR PAINTINGS, DRAWINGS, ENGRAVINGS, AND SCULPTURES
Statute Term of Protection Copyright Act 1869 (Vic), Copyright Act 14 years 1878 (SA), Copyright Act 1879 (NSW), Copyright Act 1890 (Vic), Copyright Act 1895 (WA) Copyright Act 1905 (Cth) Life of the author plus seven years, or 42 years Copyright Act 1912 (Cth) Life of the author plus 50 years Copyright Act 1968 (Cth) Life of the author plus 50 years Copyright Act 1968, as amended pursuant Life of the author plus 70 years to the Australia-United States Free Trade Agreement 2004
TABLE P: LOCAL COPYRIGHT STATUTES AND TERMS OF PROTECTION FOR PHOTOGRAPHS
Statute Term of Protection Copyright Act 1869 (Vic), Copyright Act 3 years from the making of the photo 1878 (SA), Copyright Act 1879 (NSW), Copyright Act 1890 (Vic), Copyright Act 1895 (WA) Copyright Act 1905 (Cth) Life of the author plus seven years, or 42 years Copyright Act 1912 (Cth) 50 years from the making of the photo Copyright Act 1968 (Cth) 50 years following first publication Copyright Act 1968, as amended pursuant Life of the author plus 70 years to the Australia-United States Free Trade Agreement 2004
When considered against current life expectancies, the duration of copyright in artistic works is perhaps even more startling than with respect to literary works: for example, duration of a photograph created by a 35-year-old women has grown from three years pursuant to the colonial laws to upwards of 118 years following the AUSFTA extension. Although this change happened over a period of 135 years, such amendments
243 have had a gradual, though ultimately still severe, impact on the boundaries of this category of Australia’s public domain.
Finally, it is important to remember that there are a number of Australian works that will never enter Australia’s public domain: unpublished works. A recurrent issue throughout this Thesis, while such works remain unpublished such works will never enter Australia’s public domain, whether by this or another category.
C. WORKS THAT DID OR DO NOT MEET STATUTORY FORMALITIES FOR PROTECTION
As predicted in Chapter One, the satisfaction of statutory formalities has never been a requirement for the subsistence of copyright under Australian law and thus no works have entered Australia’s public domain through this method.18 Although registration provisions were incorporated into the colonial copyright statutes,19 the Copyright Act 190520 and the Copyright Act 1912,21 and in some cases affected the rights of the owner to sue for copyright infringement, this category has not been a part of Australia’s public domain or its development.
D. WORKS THAT FAILED OR FAIL TO MEET THE REQUISITE STANDARD OF ORIGINALITY
The requirement that a work be ‘original’ and all that the term entails, in order to receive copyright protection was not an issue under Australian law prior to the introduction of the Copyright Act 1912 and, by virtue of that statute, the UK Copyright Act 1911. Neither statute nor case law that emerged during the colonial period identified any requirement of ‘originality’ for the subsistence of copyright and it was not a statutory requirement pursuant to the Copyright Act 1905. Thus, such a requirement was first introduced into Australian law and jurisprudence pursuant to the UK Copyright Act 1911 and retained under the Copyright Act 1968.
Once this requirement was introduced, few literary or artistic works entered the public domain due to a failure to meet the judicially determined standard of originality. Today,
18 See Chapter One Part II Section A(iii) above. 19 See 33 Vict no 350 (1869, Vic), s 28; 41 & 42 Vict no 95 (SA), s 27; 42 Vict no 20 (NSW), s 17; 54 Vict no 1076 (1890, Vic), s 29; 59 Vict no 24 (WA), s 13. 20 See Copyright Act 1905 s 74. 244 the standard of originality for literary and artistic works remains at a low threshold: although, as revealed in Chapter Seven, defendants in architectural plan cases often raise the standard of originality.22 In the most recent case on this issue, IceTv Pty Ltd v Nine Network Australia Pty Ltd,23 the defendant, IceTV, did not challenge that copyright subsisted in the literary work in question, the Nine Network television schedule. However, in that same case members of the High Court of Australia indicated this threshold may need to be reconsidered in subsequent decisions of this issue.24
Although few works will enter the public domain through this category, such works will eventually enter the public domain when the relevant duration of copyright expires. The same period of protection applies for all manner of literary works, whether it is a telephone directory or a Booker Prize-winning novel. The benefit that will flow to the public domain and Australia’s public from a Nine Network television guide that is out of date by 120 years is another question entirely.
E. FACTS, INFORMATION AND IDEAS
Of all the categories that comprise the public domain, the category of facts, information, and ideas has arguably been the most interesting when viewed in an Australian context. Many would believe that this category would be only second to that of the expiration of the term of copyright when it comes to discussing the public domain. Today, both the judiciary and copyright commentators often note its existence. Yet, as this Thesis has revealed this category has been malleable under Australian law, with valuable information being protected by either copyright statute or in case law. In Chapter Four, I noted how information conveyed by telegraphic message was protected under copyright in four colonies, for various lengths of time. This situation, where information conveyed via telegram was protected under copyright statute, was unique to Australia. Further, this type of information was also protected without the existence of an applicable copyright statute in the Wilson v Rowcroft25 and Wilson v Luke26 decisions.
21 See Copyright Act 1912 ss 15, 16, 17. 22 See Chapter Seven Part II Section A(ii) above. 23 [2009] HCA 14. 24 [2009] HCA 14, [187] – [188] (citations omitted). 25 (1873) 4 AJR 57. 26 (1875) 1 VLR (E) 127. 245 Under subsequent copyright statutes, although the applicable legislation did not explicitly protect facts and information, many literary works were found to be ‘original’ and the copyright subsequently enforced by the courts where it was arguably the information, rather than the way that information was expressed, which was valuable to the copyright owner. This is perhaps best illustrated by the horse racing cases discussed in Chapter Six, where it was pre-race information including race acceptances, barrier positions, and subsequent race results that were of value to the copyright owner, rather than the published pamphlets containing such information.
Therefore, although this category of the public domain exists under Australian law, both statute and case law have affected how this category has been translated in an Australian context.
F. ACTIONS NOT INCLUDED IN THE EXCLUSIVE RIGHTS OF THE COPYRIGHT OWNER
The final category included in the list of areas comprising the ‘traditional’ public domain features actions that are not included within the exclusive rights of the copyright owner and can therefore be undertaken with no recourse under law. In Chapters Four through Seven these actions have generally been examined in the context of the rights of the copyright owner. Thus, the comparable rights of the owner of the copyright in a book (or, to use the modern term, literary work), as these have emerged under the colonial copyright statutes, the Copyright Act 1905, Copyright Act 1912 and Copyright Act 1968 are illustrated in the following table:
246
TABLE Q: DEVELOPMENT OF THE RIGHTS OF THE COPYRIGHT OWNER IN A LITERARY WORK
Statute Rights Granted Copyright Act 1869 (Vic), Copyright Act Right to print and make multiple 1878 (SA), Copyright Act 1879 (NSW), copies of the book Copyright Act 1890 (Vic), Copyright Act 1895 (WA) Copyright Act 1905 (Cth) Right to make copies of the book; Right to abridge the book; Right to translate the book; Right to dramatise the book Copyright Act 1912 (Cth) Right to produce or reproduce the work or any substantial part thereof; Right to produce, reproduce, perform or publish any translation of the work; Right to convert the work into a dramatic work, by way of public performance or otherwise; Right to make any record, perforated roll, cinematograph film by means of which it may be mechanically performed or delivered Copyright Act 1968 (Cth) Right to reproduce the work; Right to publish the work; Right to perform the work in public; Right to broadcast the work; Right to cause the work to be transmitted to subscribers of a diffusion service; Right to make an adaptation of a work Copyright Act 1968 as amended Right to reproduce the work; Right to publish the work; Right to perform the work in public; Right to communicate the work to the public; Right to make an adaptation of a work
This list is a collation of the discussion that occurred throughout Chapters Four through Seven. While the colonial copyright statutes were in force an individual could dramatise
247 or translate a book into a foreign language (or do both, should that individual desire) without any recourse from the owner of the copyright in the original work; these actions were included as part of the statutory rights of the copyright owner pursuant to the Copyright Act 1905. In a similar vein, prior to the introduction of the Copyright Act 1912, an individual could ‘make any record, perforated roll, cinematograph film by means of which it may be mechanically performed or delivered’; this action was included as one of the rights of the copyright owner under the Copyright Act 1911. Further, before the introduction of the distinct ‘communication’ right under the Copyright Amendment (Digital Agenda) Act 2000 (Cth), it is arguable that any individual could have included a literary work, for example, on the Internet, without recourse from the copyright owner.
The exclusive rights of the copyright owner grew with each statute, the introduction of these different types of rights reflecting developments in social practices, industry and technology. However, at a number of points throughout Australian copyright there were actions that could be undertaken with respect to copyright works, where a work could be ‘reproduced’ albeit as a translation, dramatisation or as part of a film, and such actions were part of the public domain. When such actions were removed, the boundaries of the public domain also contracted.
G. WORKS AND OTHER CREATIONS THAT A STATUTE EXPLICITLY STATES THAT COPYRIGHT DOES NOT SUBSIST IN
The existence of this category is particularly unusual in an Australia context where, as will be discussed in greater detail below, Australia’s public domain is based more on ‘negative’ aspects as opposed to positively defined aspects of law. However, two examples support the existence of this category as a part of Australia’s public domain, one from the colonial copyright statutes and the other from the Copyright Act 1905.
The first is section 35 of the Copyright Act 1869 and its colonial equivalents, which provided that copyright did not protect any lecture ‘delivered in any university public school or college, or on any public foundation or by any individual by virtue of or according to any gift endowment or foundation.’ Lectures falling under this definition were therefore explicitly excluded from copyright protection and as such automatically entered the public domain. The second example is section 6 of the Copyright Act 1905,
248 which infamously provided that ‘No copyright, performing right or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libellous work or matter.’ As evidenced by the parliamentary debates cited in Chapter Five, the intention of the Federal Parliament was that such creations did not deserve copyright and therefore became a part of the public domain.
Thus, although provisions falling under this category may be an unusual occurrence, it should be recognised as part of Australia’s public domain. Indeed, it is arguable that there are times that this category technically does not exist, as the copyright statute in force does not contain any specific exclusions to copyright protection. This is the case today. Of course, any the categories of the ‘traditional’ public domain, outlined above, could also be removed by statute (subject potentially to the constitutional considerations discussed in Chapters Two and Three).
H. CONCLUSION
In conclusion, this Part has revealed that all but one of the categories of the public domain discussed in Chapter One exist in an Australia context, the exception being that no work has entered Australia’s public domain by virtue of a failure to meet a statutory formality, as this has never been a requirement of Australian copyright legislation. Therefore, it is possible to conclude that Australia’s public domain consisted and today should be considered as consisting of six distinct categories:
A. works that pre-dated protection under any Australian copyright statute; B. works where the statutory-based term of copyright has expired; C. works that did or do not meet the judicially-set standard of originality for the subsistence of copyright; D. facts, ideas and information; and E. activities that can be undertaken with respect to a copyright-protected work as such actions are not included in the exclusive rights of the copyright owner; and F. works and other creations that a statute explicitly states that copyright does not subsist in.
The above analysis has illustrated that, over time, statutory amendments and judicial decisions have affected the nature of these categories and thus the boundaries of the
249 public domain. The themes emerging from these categories and the public domain more generally will now be discussed in greater detail.
III. THEMES SURROUNDING AUSTRALIA’S PUBLIC DOMAIN
The discussion in Part II has illustrated how the traditional categories of the public domain have appeared and developed in an Australian context. This Part will consider the themes surrounding the public domain that have emerged from the preceding Chapters and the possible significance of the public domain. I will first consider the concept of Australia’s public domain as a ‘negative’ space and how this is consistent with Australian law more generally. Second, I will then consider how the role of the public domain and the significance of this space have evolved over time. Third, I will examine an issue that has remained unconsidered in copyright law discourse both in Australia and more generally - the relationship public domain and public rights - and illustrate that this Thesis reveals that a growth in public rights has led to a diminution of Australia’s public domain.
A. AUSTRALIA’S PUBLIC DOMAIN AS A NEGATIVE SPACE
In Chapter One, I noted that the recurring theme in public domain literature of the ‘negative’ public domain, the public domain that can only be defined with respect to whatever copyright is not and the abhorrence of copyright scholars that the public domain is treated in this way. This opinion is predominantly found in United States literature, where constitutional and legal issues are so often defined in the positive that a doctrine being treated as a ‘negative’ concept is a cause for concern. I also noted that previous definitions of Australia’s public domain, in the scant literature that has emerged on this topic, also considered the public domain as a ‘negative’ concept. For example, Frow’s description was as ‘that space which remains after all other rights in intellectual work have been exhausted.’27
Although no constitutional or statutory analysis underpins that interpretation, it is partially accurate. Australia’s public domain is a negative public domain. This is consistent with the fact that there has been no consistent policy with respect to the
27 John Frow, ‘Public Domain and Collective Rights in Culture’ (1998) 13 Intellectual Property Journal 39, 40 (citation omitted). 250 public domain or Australian copyright law more generally, from the colonial period through to today. Australia’s public domain can be defined by engaging in analyses of positive doctrines and rights and considering what is implicitly, rather than expressly, stated in those constitutional and legislative doctrines.
A number of examples presented throughout this Thesis illustrate this situation. Section 51(xviii) of the Australian Constitution contains a reference to the power of the Parliament to make laws with respect to ‘copyrights’, but the term ‘copyrights’ can arguably not be interpreted without reference to the public domain.28 A consideration of the implied guarantee of political communication, revealed in the text and structure of the Australian Constitution, illustrates that there is no ‘pre-existing right’ to Australia’s public domain, by way of statute or elsewhere, but also that the public domain is quite significant for Australian democracy.29 Copyright statutes define the rights of the owner of the copyright and the term of copyright protection, rather than highlighting what the public can do with respect to public domain works or public domain-based actions with respect to works. I could not have described the actions that were in the public domain under certain statutes above without reference to the exclusive rights provided in those statutes. Occasionally, a copyright statute will contain provisions that exclude certain types of works from protection, or state that the public can undertake certain actions, thus reinforcing or broadening the boundaries of the public domain – but those provisions never use the term ‘public domain’.
That Australia has a ‘negative’ public domain does not mean that the public domain is not an entity deserving or recognition, or that it is not significant; indeed it is entirely consistent with Australian constitutional and legal policy. Australia does not have an overtly rights-based culture; there is no Federal Bill of Rights, at either a constitutional or statutory level.30 Both that situation and the Australian public domain as a ‘negative’ space can be changed; this is merely the state of Australia’s public domain today.31
28 See Chapter Two Parts II and III above. 29 See Chapter Three Part III above. 30 See National Human Rights Consultation, Report (2009). 31 Suggestions for how Australia’s public domain may become more ‘positive’ are made in Appendix A below. 251 B. THE CHANGING ROLE OF THE PUBLIC DOMAIN
The public domain has been significant for various reasons at various times over the past 140 years. The recurring theme that has emerged, however, is that the public domain has always played a democratic role within Australia, ensuring that a larger part of the community was and still is able to interact with a broader range of information and cultural products.
The most recognisable role that the public domain has played is in housing works no longer protected under copyright. Under the colonial and 1905 statutes, once copyright in a work had expired, then numerous publishers could print copies of that work, leading to a wider segment of the community being able to access and enjoy that creation. This was a significant, democratic purpose. As noted in Chapter Four, Petherick’s Collection of Favourite and Approved Authors, one of the premier series of literary publications within the colonies, included a number of Australian and international public domain books. The importance of local publishers having the opportunity to print cheap editions of works and how this was tied to the length of protection was also discussed by the Federal legislature in the passing of the 1905 Act, as noted in Chapter Five. As Senator Symon stated, if the term of copyright was not subject to some reasonable limitation, then a large part of the community would be unable to access many valuable works of literature.
Thus, for a little under one hundred years, this remained one of the primary roles of the public domain in Australia. However, the technological revolution that occurred throughout the late 20th century – beginning with the photocopier, continuing with the computer, and today culminating in the Internet – has now changed this paradigm. Rather than an individual being limited in their interaction with the public domain to accessing cheap editions, an individual can now download public domain novels, reproduce those works, or even create their own ‘remixes’ or versions of their favourite novels. With this additional ‘power’ that has been given to the individual copyright user as a result of the Internet revolution, it is therefore not surprising that the majority of interest in the public domain has occurred in recent years. Although the public domain has always played a democratic and significant role, today this has been expanded and
252 much more is at stake for the public domain – and thus the broader Australian community - than has previously been the case.
Nevertheless, uses of literary works were not limited to the reproduction of cheap editions. As revealed in Chapter Four, the fact that there was no exclusive right of dramatisation granted to the owner of the copyright in a book arguably lead to a greater number of authors dramatising a book and thus a more diverse selection of colonial theatrical productions. In a similar vein, the fact that no right to create a cinematograph film based on a literary work was introduced until the Copyright Act 1912 arguably also helped the burgeoning Australian film industry, with Australia producing more ‘narrative’-based films than any other jurisdiction in the period leading up to 1910. At one point, though completely unintentional on the part of the legislature, section 6 of the Copyright Act 1905 meant that the Australian public and publishers could have greater access to ‘blasphemous, indecent, seditious, or libellous’ literary works.
One of the most interesting issues with respect to the public domain that has emerged from this Thesis is the treatment of facts and information. The recurring theme is that facts and information have always been significant to Australian society – but occasionally the public domain has been seen posing a difficulty to the proper dissemination of facts. In the colonies, the public domain challenged the business model of colonial news publishers – as facts were in the public domain, such information could be disseminated by any individual or publisher without recourse under law. Subsequently both statute and colonial jurisprudence more generally evolved to remove such information from the public domain, to allow greater control over the publication and dissemination of news. Over time, these statutory restrictions have been removed though case law has continued to protect compilations or collections that are nothing more than mere facts. However, today, the fact that information and facts are considered to be a part of the public domain gives this doctrine a constitutional aspect: the fact that basic information is free ensures that Australian copyright law does not fall foul of the Australian constitutional implied guarantee of freedom of political communication. In this respect, the public domain gains much significance from this place in Australian
253 democracy. As noted in Chapter Three, this could be one area where, in the future, the public domain gains additional protection.32
C. FROM PUBLIC DOMAIN TO PUBLIC RIGHTS
One of the major themes that has emerged from this Thesis is the ongoing struggle of copyright law to encompass private rights of authors, public rights, the public interest, and the public domain. It has appeared at various points throughout this Thesis, though predominantly in Chapters Five, Six, and Seven. Thus, the final and perhaps most unexpected conclusion arising from this Thesis is based on an interpretation of this struggle and what it has meant for the status of Australia’s public domain. In summary form, the argument is this: the more public rights that an Australian copyright law has contained, the weaker that Australia’s public domain has been.33 There is evidence to suggest that, throughout the development of Australian copyright law, it has not been possible to have both a strong public domain and strong public rights, though there has been no previous recognition of this situation by Australian copyright scholars. This perhaps reflects the difficulties with borrowing jurisprudence and critiques of copyright law from other jurisdictions, for example, the United States. In this section I will consider the historical, legislative, and constitutional evidence that supports such a proposition and ultimately what this means for the significance of the public domain.
Under the first set of laws analysed in this Thesis, the copyright laws of the various colonies that were discussed in Chapter Four, a clear dichotomy emerged. A work was either protected by copyright (including both statutory or common law copyright depending on publication status) or it was not. This was highlighted in the constitutional analysis in Chapter Two.34 What I have termed throughout this Thesis as ‘public rights’, namely exceptions to copyright infringement, did not exist in these statutes.35 There
32 See Chapter Three Part III Section C above. 33 This argument is not couched in terms of the exclusive rights of the copyright owner: although there has undeniably been an incremental evolution of the exclusive rights of the copyright owner over the last 150 years, this conclusion suggests that the introduction and subsequent development of public rights have had a far more detrimental impact on the significance of the Australian public domain than owner rights. 34 See Chapter Two Part II Section B above. 35 It should be noted that, as discussed in Chapter Four, there were two provisions of the 1869 statute that could be considered exceptions to this argument. The first is section 15, which stated that the Governor could licence the republication of a book in which copyright subsisted, where the proprietor of the copyright refused to republish the work following the death of the author. This is arguably the 254 were works that were protected by copyright and works that were not protected by copyright – in the terms of this Thesis, works that had entered the public domain - and this was the nature of Australian copyright law prior to Federation.
A number of the provisions that appear in the colonial copyright statutes confirm such a proposition. Section 37 of the Victorian Copyright Act 1869 and its equivalents was arguably the most significant. Pursuant to that provision it was stated:
That nothing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object notwithstanding that there may be copyright in some representation of such scene or object.
Two parts of this colonial provision support what I will term the ‘copyright/public domain’ paradigm. The first is that ‘nothing herein contained shall prejudice the right of any person to copy or use any work in which there is no copyright’. In my analysis in Chapter Four I interpreted this provision ‘as reinforcing the position that artistic works that were not entitled to copyright under the Act could be freely reproduced and imitated.’ In section 36 of the Victorian Copyright Act 1869, which immediately preceded section 37, it was stated that works that had been ‘sold or disposed of’ prior to the passing of the 1869 Act were not entitled to copyright. On that basis I further argued that ‘these provisions did not preclude individuals from copying works that had been previously sold and therefore were not entitled to protection’. Thus, the first part of section 37 illustrates the copyright/public domain dichotomy that was prevalent in the colonial statutes. Indeed, the wording of this first part indicates how seriously use of non-copyright-protected works was considered in the colonies: it was framed as a ‘right…to copy or use’ (emphasis added).
provision that bore the closest resemblance to modern public rights: however, it can be distinguished for several reasons. First, section 15 was quite limited in nature: it simply provided that a complaint could be made, rather than guaranteeing that a book could be republished, in contrast to later public rights, particularly section 52 of the 1968 Act, which allows the publication of unpublished works housed in libraries or archives. Section 15 also actually granted the right to the Governor of Victoria, as it was stated that ‘it shall be lawful for the Governor on complaint made to the Attorney-General’ to grant a licence for republication of that book, and then it would ‘be lawful for such complainant to publish such book according to such license.’ Further, it is also unlikely that such a provision was ever actually utilised. Second, the 1869 Act and its equivalents also provided what could be termed a ‘defence’ in infringement proceedings. Under section 22, a defendant could raise the defence that the plaintiff to the proceeding was neither the author, the first publisher, or the proprietor of the copyright, or that another individual was actually the author, proprietor etc of copyright in that book. However, it is possible to distinguish such a defence with such modern defences as fair dealing etc on the basis that section 22 did not permit the defendant to actually do anything with respect to the book in question; it was purely procedural in nature. 255
The second part of section 37 also evidences this copyright/public domain dichotomy. The wording of this part – that any individual may ‘represent any scene or object notwithstanding that there may be copyright in some representation of such scene or object’ – indicated a common sense reading of the provisions with respect to artistic works. One individual creating a painting of the Public Library of Victoria did not preclude another from doing so; copyright would only be infringed where an individual reproduced that first painting. There was no copyright in a landscape; that landscape was ‘public domain’, like facts or information.
The drafting of section 35 of the Victorian Copyright Act 1869 and its colonial equivalents provides further evidence for this pre-Federation copyright/public domain dichotomy. Pursuant to that provision, copyright protection did not extend to any lecture/s ‘delivered in any university public school or college, or on any public foundation or by any individual by virtue of or according to any gift endowment or foundation.’ Viewed with modern eyes, this is an unusual provision. Rather than provide that copyright subsisted in these lectures but then provide an exception to their use, copyright protection was simply denied to such lectures. This is in direct contrast to section 20 of the Copyright Act 1911, where it was stated that a newspaper would not be liable for copyright infringement for publishing a report of a political address. In one instance, namely section 35, copyright would not subsist at all and therefore these works would enter the public domain; in the other, section 20, copyright would subsist but a newspaper was exempt from infringement. The former is an example of the public domain; the latter an example of public rights. Yet, the ‘blanket’ provision meant that certain types of works automatically entered the public domain was far more beneficial than the public right, particularly in contrast to the other stringent measures in force with respect to lectures at that time.
Therefore, when the term ‘copyrights’ is considered, as it appears in section 51(xviii) of the Australian Constitution and what it meant prior to Federation, although there is considerable uncertainty surrounding copyright law at that time and the rights that such a term encompassed, one aspect is clear. There were literary, artistic and dramatic works, and lectures, that were protected by copyright and then those works that were not protected and therefore constituted part of the Australian public domain. Of course,
256 the term ‘public domain’ was not used. However, this is arguably not surprising given that the Berne Convention, which as I noted in Chapter One can generally be considered to be the catalyst for widespread adoption of the term ‘public domain’, was 17 years away when the Victorian statute was passed in 1869. However, similar terms, with the same significance, were used and the effect was ultimately the same.
Since Federation, however, there has been an incremental erosion of the Australian public domain, in part by increases in the exclusive rights of the copyright owner and the applicable term of protection, but also by a greater reliance on statutory public rights. I will term the latter situation the ‘copyright/public rights’ paradigm. There are examples of this paradigm in each Australian copyright statute, commencing with the Copyright Act 1905, where there was still a mixture of public domain and public rights aspects contained in Australian copyright law, to the Copyright Act 1968 (Cth). I will now consider examples that appeared in each copyright statute, before considering what this ultimately means for both Australia’s public domain and this Thesis.
As noted above in Chapter Five, the Copyright Act 1905 was passed during a period of transition for Australia. It was also a period of transition for both copyright and Australia’s public domain. At this stage, elements of the public domain and public rights were both present in Australia’s national copyright law, as the Federal legislature struggled with those concepts of private rights, public rights, the public interest, and the public domain. Section 13(1) of the 1905 statute introduced, for the first time, the exclusive rights to translate and abridge a work (in the latter case, the first time such a right had been based in statute). Those rights were therefore legislatively removed from the public domain. However, section 28 of that Act, the ‘fairly dealing’ provision, provided that ‘Copyright in a book shall not be infringed by a person making an abridgment or translation of the book for his private use’. The Federal legislature did not discuss section 28 in any great detail, but it can readily be concluded that the Parliament included this public right as a means of alleviating some of the problems caused to the public – and thus the public domain - by the introduction of these new exclusive rights.
In a similar vein, it was noted in Chapter Five that, with regard to the right of translation, Article 5 of the 1896 revision of the Berne Convention stated that although
257 this right extended for the entire term of copyright, it could expire after ten years from the date of first publication if the author had not ‘availed himself’ of that right. The right of translation would therefore re-enter the public domain. Rather than adopt this position, the 1905 Act provided in section 30 that, where the author had not exercised this right within ten years of first publication, an application could be made to the Minister who in turn could compel the author to make such a translation. Although the result in both cases was ultimately the same – a translation of the work in question would be made – in the case of the Berne Convention, the translation right would enter the public domain; in the other, an individual had a right to go through a formal legal process to get the desired translation made. These are considerably different rights and the legislature made a conscious choice to introduce a public right – believing that this was in the greater public interest - rather than allow the original exclusive right to enter the public domain.
Additional provisions illustrate that the copyright/public domain dichotomy still retained significance under the 1905 statute, indicating that this was a transitional period from the previous paradigm to the newer copyright/public rights dichotomy. Pursuant to section 27, which as noted in Chapter Five provided for copyright in new editions of works that had ‘material or substantial alterations’, it was further stated that this provision did not operate to ‘prejudice the right of any person to reproduce a former edition…after the expiration of the copyright in the former edition.’ The discussion surrounding the introduction of this provision, in addition to that regarding the extension of the duration of copyright in literary works, indicated that the public domain was still highly valued under Australian law at this time.36
This is in contrast to a development under the Copyright Act 1912, where a public right was specifically introduced that usurped a role previously fulfilled by the public domain. As noted above, with respect to the evolving role of the Australian public domain, and in Chapters Four and Five, one of the primary benefits of the public domain has been that once a book is copyright-free, it can be republished, sold cheaply and could thus reach a broader section of the community. However, when the term of copyright was extended to ‘life-plus-50’ pursuant to section 3 of the Copyright Act
36 See Chapter Five Part II Section A(i) above. 258 1911, a new compulsory licence-style provision was introduced whereby, following the expiration of 25 years from the death of the author, copyright would not be infringed by the reproduction of a work for sale, where certain criteria were met, including the provision of notice and the payment of a royalty.
Although this part of section 3 was created on the basis of good intentions – to enhance the public interest by ensuring that the public would continue to get access to cheap publications and to diminish the effects of the term extension - it had quite negative consequences. Part of the role of the public domain was overtaken by this provision; previously the only way in which this process occurred was when a book entered the public domain. Under section 3 and the public right afforded therein, publishers would no longer need to wait for the work to enter the public domain, all for the payment of a small royalty. The Australian public domain was therefore devalued by the introduction of this public right. Certainly, section 3 did not preclude a work entering the public domain: copyright in that work would still eventually expire, regardless of this provision. Further, as was discussed in Chapter Seven, this compulsory licence was eventually removed due in part to the fact that it was rarely used. Yet, despite these arguments, in theory this public right still usurped a function and part of the significance of the Australian public domain at this time.
The evolution of Australian copyright from a copyright/public domain dichotomy to a copyright/public rights paradigm is most clearly evidenced by the Copyright Act 1968. By this time there were few references to public domain aspects; rather, copyright was regulated with an explicit group of exclusive rights, exceptions to infringement and compulsory licences. In contrast to the parliamentary debates that accompanied the Copyright Act 1905, and even the 1912 law to some extent, there was no reference to public domain aspects of copyright law. In the statute as passed, a few public domain references remained. For example, pursuant to section 92(2), one of the new provisions regarding published edition copyright, which provided that this form of copyright did ‘not apply to an edition that reproduces a previous edition of the same work or works.’ This suggested that published edition copyright does not subsist in subsequent editions of such works and these works initially protected under these provisions enter the public domain. In addition, some references to the public domain were made as part of a ‘public right’. For example, section 44(1)(c) stated it was not an infringement of
259 copyright to include a short extract of a published work in a collection, where that ‘collection consists principally of matter in which copyright does not subsist’.37 Today, the 673-page Copyright Act 1968 contains an astounding collection of public rights, possibly the largest such collection in any copyright statute in the world.38 In these situations, the only protection for a member of the Australian public is provided by a narrowly defined series of public rights scattered throughout the Act. These public rights are supplemented every few years under a growing number of copyright amendment statutes.
Further, this paradigmatic shift is also evidenced with regard to our implied guarantee of freedom of political communication, discussed extensively in Chapter Three. Literature on copyright and freedom of expression repeatedly stresses the importance of the idea/expression dichotomy and exceptions to infringement, in maintaining a balance between these two fundamental doctrines. When considered in greater detail, the idea/expression dichotomy is actually a part of the Australian public domain and public rights – particularly the fair dealing provisions – are being pushed into a role that would be more practically fulfilled – and previously was fulfilled – by the public domain, where works could be used without any of the constraints of copyright law. However, as Chapter Three illustrated with regard to the Australian constitutional implied freedom, the public domain is far more valuable with respect to this freedom than the limited public rights provided by the current Copyright Act. Yet, as further evidenced in that discussion, the Australian public has no positive right to that public domain, for free expression or any other purpose.
The resounding question that emerges from the preceding discussion is why this shift in paradigm has occurred. What changed since the first colonial copyright statute that resulted in a relatively weak public domain in Australia? A number of reasons could be hypothesised, although arguably the most convincing is that it such a shift was an accident in the framing of our national copyright law. One of the recurring themes throughout this Thesis has been the lack of policy underpinning Australian copyright law, from Federation through to today. With Federal copyright policy becoming
37 This provision first appeared as section 2(1)(iv) of the Copyright Act 1911. See Chapter Six Part II Section A (i) above. 38 See Chapter Seven Part I above. 260 increasingly engulfed in international treaties and that copyright ‘balance’, focusing on owner rights and public rights, it is arguable that the Federal Parliament simply lost sight of a public domain that, although defined in the negative, still existed in those early years.
It could also be argued that, with the exception of the Copyright Act 1905 where – perhaps ironically – longevity of that statute was a significant issue, none of the Australian copyright statutes were passed with a view to the long-term consequences of that particular law. Even when the 1912 and 1968 Acts were passed, technologies were developing that would require a re-evaluation of our copyright law within a period of a few years. Thus, no long-term view of copyright law was developed in this country. However, Australia is not alone in this respect: it would be difficult to argue that any jurisdiction undertook such an examination and formulated a definitive copyright policy based upon this exploration.
In the alternative, this shift may not have been due to any development in Australia, but copyright law more generally. It is undeniable that copyright became more regulatory in nature throughout the 20th century. A thriving public domain was arguably the product of little regulation, when it could be inferred that certain actions were not a part of the rights of the copyright owner as such rights were not contained in a statute – for example, as discussed in Chapter Four, the rights of dramatisation and translation. Today, copyright is a highly regulated area of law, the product of numerous intersecting international bilateral and multilateral agreements. It is, therefore, arguable that public rights, as definable sections that could be contained in a statute lent themselves to the heavier regulation of copyright, more so that the ‘negative’, indefinable nature of the public domain.
This is only one conclusion regarding Australia’s public domain. Still, the nature of this conclusion suggests the type of discussion that now needs to occur regarding Australia’s public domain more. That Australia has a ‘negative’ public domain does not mean that Australia has a less significant public domain than any other jurisdiction. Nevertheless, it can be argued that greater positive recognition of this space in the future may help reverse some of the damage caused by the increasing prevalence of the copyright/public rights paradigm.
261 IV. CONCLUSION
It has been the aim of this Thesis to determine the nature of the public domain under Australian copyright law. In this Chapter I have illustrated how the public domain is translated in an Australian context and the different manner in which the traditional categories of the public domain have been created and filled under Australian law. It has highlighted the fact that Australia has a negative public domain, but one that has still played a significant role in Australian law and culture. Further, it has also posited a previously unnoticed dichotomy – the shift from a public domain to public rights emphasis in copyright law – and illustrated that greater research must be undertaken on Australian copyright law more generally, to avoid unintended or unjust consequences.
The Australian public domain must compete against other worthwhile copyright issues to gain the attention of academics, lawyers, parliamentarians, the judiciary and the public. Yet it is an area that would be worth greater consideration by these parties. It is an area where, when a scholar asks one question about it, another ten questions appear, equally fascinating and worthy of a more detailed evaluation. For academics, the parameters of this public space - constitutional, economic, historical, cultural, legislative, and social – still need to be determined in greater detail. For lawyers, the public domain has the capacity to play a role in copyright law that allows for greater engagement with the law itself, beyond the exclusive or public rights provided in a current copyright statute. Parliamentarians would be mindful to look at how copyright statutes and policies affect the nature of the public domain for both current and future generations. For the judiciary, additional engagement with the public domain and the interrelationship between copyright and this space could lead to greater insight for intellectual property jurisprudence. In the case of the public, the possibilities are perhaps endless: the public domain is valuable to all individuals, from a book collector, to a publisher, to an educator, all for different and equally valid reasons.
Thus, although Australia’s public domain is only now being explored – from being buried beneath a ‘cursed law’, as Marcus Clarke might have written – its future existence and significance can be whatever the Australian public decide that they want to achieve with this space. Those possibilities are as broad as the range of creations that will, one day, cast off copyright and become a part of Australia’s public domain.
262 APPENDIX A
POSSIBILITIES FOR REFORM
The preceding analysis has revealed a number of issues regarding Australia’s public domain. The purpose of this analysis was to consider the state and significance of the Australian public domain, rather than highlight its weaknesses. However, it will have become apparent throughout this Thesis that there are certain areas where Australia’s public domain is particularly weak and needs to be, and could be, strengthened. One area falling into the former category is the current duration of protection for copyright works, though, given that Australia is obliged to maintain this duration under the Australia-United States Free Trade Agreement 2004 (AUSFTA), it is unlikely that any reform could be undertaken in that area. In contrast, section 51(xviii) of the Australian Constitution could be amended to reinforce the maxim that copyright, and other types of intellectual property, are generally meant to be limited in duration. This would give some implicit recognition to the public domain within a constitutional setting. Additional constitution research and potential reform would also help to strengthen Australia’s public domain.
In a similar vein, although the duration of copyright for published works is currently a moot point, the perpetual term of copyright for the unpublished works of both private parties and government is one area that could be reformed. This is one relic of pre- Federation copyright where there appears to be no justification for continuing its application in a modern context. Yet in both cases, an end to perpetual copyright would unleash a vast quantity of new material into the public domain.
On the basis of this discussion in this Appendix I recommend possible reforms in three areas:
A. Amendment to section 51(xviii) of the Australian Constitution; B. Further areas for constitutional research; and C. Possible amendments to the Copyright Act 1968 (Cth).
263 I. CONSTITUTIONAL REFORM OF SECTION 51(XVIII)
It is interesting to note that section 51(xviii) was the subject of continual recommendation for reform throughout the latter part of the 20th century. As discussed in Chapter Two, following the interpretation of the trade marks power in the Union Label case it was generally believed that the Federal Parliament was so shackled to what constituted ‘copyrights’ at Federation that newer forms of rights were beyond the power of the legislature.1 The majority of subsequent proposals to reform section 51(xviii) sought to expand this power in light of the many technological and biotechnological developments of the 20th century.2 The Nintendo and Grain Pool decisions, however, changed this view and today the question is very different to one hundred years ago: what doesn’t the Federal Parliament have the power to do with respect to section 51(xviii) and, more specifically, copyrights in Australia?
In light of the analysis presented in this Thesis, one of the principal areas for reform to give greater recognition to the public domain could be an amendment to section 51(xviii). There are a number of approaches that the Federal Government could adopt in drafting such an amendment and what proceeds are a number of possible options.
The first, and most obvious, possibility for amendment is to adopt the wording of the US constitutional intellectual property clause. As noted above, pursuant to this provision, the US Congress has the power to ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ As I considered in Chapter Two, it is unclear whether perpetual copyright would be permitted under the US provision.3 The inclusion of the ‘limited Times’ phrase does suggest, however, an intention by the
1 See Chapter Two Part II Section A(i). 2 See Minutes of Proceedings and Official Record of Debates of the Australian Constitutional Convention, Melbourne, 24-26 September 1975, ‘Resolutions Adopted at Australian Constitutional Convention’, 176; Minutes of Proceedings and Official Record of Debates of the Constitutional Convention, Hobart, 27-29 October 1976, ‘Resolutions Adopted at the Australian Constitutional Convention’, 208; Advisory Committee on the Distribution of Powers, Report of the Advisory Committee to the Constitutional Commission (1987) 161; Advisory Committee on Trade and National Economic Management, Report of the Advisory Committee to the Constitutional Commission (1987) 46; Constitutional Commission, Final Report of the Constitutional Commission (1988) vol 2, [10.140]. 3 See Chapter Two Part I above. 264 framers of the US Constitution that intellectual property be for just that: a limited term. Thus an amended section 51(xviii) might read:
(51) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to…
(xviii) Copyrights, patents of inventions and designs, and trade marks, for limited times.
Such an amendment is consistent with how these statutory forms of intellectual property have been since Federation and currently are treated. Each intellectual property right specified in this constitutional power subsists for a limited time. Further, as noted in Chapter Two, there is some precedent for such wording, albeit legislative as opposed to constitutional.4
Second, and in the alternative, section 51(xviii) could be amended to include some specific limitations. Such an amendment might read:
(51) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to…
(xviii) Copyrights, patents of inventions and designs, trade mark, and other like protection for products of intellectual activity, including any exceptions or limitations upon such protection, for limited times.
The above amendment incorporates part of the wording of the recommended amendment made by the 1988 Constitutional Commission.5 It is unlikely that such a broad provision would be introduced without any accompanying recognition of the other rights protected under section 51(xviii): again, referring to the idea of a ‘balancing’ of interests. Yet the wording reflects what the High Court has to date interpreted section 51(xviii) to mean, while providing an additional, constitutionally- enshrined element of protection for the public domain.
Two criticisms require addressing with respect to this possible reform. First, there are problems with the probability of such reform. The Australian Constitution is notoriously
4 The titles of both the Victorian and New South Wales colonial copyright statutes explicitly referred to the rights granted in those rights being for a ‘limited period’: see Chapter Two Part II Section B(i) above. 5 Final Report of the Constitutional Commission (1988) vol 2, [10.140]. 265 difficult to amend, requiring a referendum pursuant to section 128.6 The last successful constitutional referendum occurred in 1977.7 Second, given that my research suggests that the ‘public domain’ was in the minds of the Framers of the Federal Constitution and has since retained a (slightly diminished) place in Australian copyright law, then there may be no need for section 51(xviii) to formally incorporate this doctrine. In response, however, since the Rudd Government came to power in November 2007 and the increasing discussion regarding the adoption of a formal Australian Bill of Rights, there appears to be a growing move towards constitutional clarity.8 An amendment establishing the existence of the public domain is consistent with such an approach.
II. FURTHER AREAS FOR CONSTITUTIONAL RESEARCH AND POSSIBLE REFORM
In this Thesis I have focused on the Australian Constitution and the public domain has been limited to two specific doctrines, in light of the existence of similar US doctrines that have recurred in public domain literature: the US constitutional copyright clause and the First Amendment. On that basis, in Chapters Two and Three I limited my constitutional analysis to section 51(xviii) of the Australian Constitution and the implied guarantee of freedom of political communication. However, these are not the only constitutional doctrines that are applicable in any discussion of copyright and the role and significance of Australia’s public domain. The following is a brief analysis of each of these additional issues. A full discussion is beyond this Thesis, but the proceeding provisions are listed with a view to further consideration.
A. ACQUISITION OF PROPERTY ON JUST TERMS
Section 51(xxxi) provides that the Parliament has the power to make laws with respect to ‘the acquisition of property on just terms from any State or person for any purposes in respect of which the Parliament has power to make laws.’9 Given that copyright is a
6 See George Williams, ‘Frozen continent’, The Sydney Morning Herald, 29 March 2008,
Section 51(xxxi) has also been considered in a judicial context, including the Nintendo Co Ltd v Centronics Systems Pty Ltd12 decision discussed above in Chapter Two.13 More recently section 51(xxxi) was raised at various stages of a decision that was incidentally concerned with Crown copyright, the Copyright Agency Limited v State of New South Wales litigation. However, the context of these references was inconsistent. In the Full Federal Court judgment, had Crown copyright been found to subsist in the surveyor plans under review in that case pursuant to sections 176 or 177 of the 1968 Act, then the Court would have been required to consider whether ‘that section effect[ed] an acquisition of property otherwise than on just terms, so as to be outside s 51 (xxxi) of the Constitution of the Commonwealth?’14 As the Full Federal Court found that copyright did not vest in the surveyor plans pursuant to either Crown copyright provision, it was not required to address this issue. Yet section 51(xxxi) was subsequently raised in the High Court appeal of the CAL decision: first, by Gummow J at several instances in the course of proceedings15 and then second in the unanimous judgment.16
10 Such a statement is beyond dispute, but see Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, 160. 11 Copyright Law Review Committee, Crown Copyright (2005) [6.34]-[6.36]. 12 (1994) 181 CLR 134. 13 See Chapter Two Part II Section B(i) and (ii). 14 Copyright Agency Ltd v State of New South Wales (2007) 159 FCR 213, 218. 15 Transcript of Proceedings, Copyright Agency Ltd v State of New South Wales (High Court of Australia, Gummow J, 16th November 2007) 16 Copyright Agency Ltd v State of New South Wales [2008] HCA 35, [57], [68] – [69]. 267 B. FREEDOM OF RELIGION
Pursuant to section 116 of the Constitution, the Commonwealth may not make laws for ‘establishing any religion…or for prohibiting the free exercise of any religion.’17 Although a link with copyright law and the public domain is not prima facie apparent, in Western Australia v Ward,18 a High Court decision concerning native title, Kirby J briefly mentioned the possibility of an as-yet unexplored constitutional argument, based on s 116, that could be employed to protect the right of Indigenous ‘cultural knowledge, so far as it is based upon the spirituality of Australia’s indigenous people.’19 As Gray notes, this developing doctrine may ‘transform the current approach of the judicial system towards indigenous intellectual property.’20 Given both the ongoing conflict between copyright law and the protection of Indigenous cultural knowledge - and the fact that much of this knowledge enters the public domain as it does not satisfy current conditions for copyright protection, as highlighted in Chapter One - this argument warrants greater consideration.
C. EXTERNAL AFFAIRS
Under section 51 (xxix) of the Australian Constitution the Federal Parliament has the power to legislate with respect to external affairs. The existence of such a broad power indicates that should the Parliament be required by an international treaty to legislate with respect to copyright it could also rely on this power. If Parliament did seek to rely on this power, the question of the broader relationship between the ‘public domain’ and ‘copyright’ may be raised to determine the validity of specific legislation. However, given the breadth of the power, it is unlikely that the High Court would strike down such legislation. Thus, the existence of such a wide power indicates the importance of exploring different legislative and constitutional methods for recognising the significance of the public domain identified in my research – although, ultimately, further consideration is needed to determine whether this power is as wide as has previously been argued.
17 Australian Constitution s 116. 18 (2002) 213 CLR 1. 19 Western Australia v Ward (2002) 213 CLR 1, 249. 20 Stephen Gray, ‘Imagination, Fraud and the Cultural Protocols Debate: A Question of Free Speech or Pornography?’ (2004) 9 Media & Arts Law Review 23, 34. 268
III. POSSIBLE LEGISLATIVE CHANGES
An additional consequence of the increasing copyright/public rights dichotomy is that the Australian Copyright Act is now brimming with exclusive rights and exceptions to infringement, thus creating a copyright statute that lawyers, academics, librarians and users all struggle to interpret and comprehend. The following suggestions for reform are therefore written in the belief that such changes will not exacerbate this problem. On this basis I propose amendments to existing provisions, rather than the development of entirely new sections.
A. A DEFINED TERM OF PROTECTION FOR UNPUBLISHED WORKS
As noted throughout this Thesis, Australia is one of the few jurisdictions that has maintained the common law relic of perpetual copyright protection for unpublished works. However, on the basis of my research it is clear that one of the primary areas for legislative reform must be the potentially indefinite term of protection for unpublished literary, dramatic and musical works. In reforming the law with respect to unpublished works, two issues require considerations:
A. Is any change legally possible in light of Australia’s international copyright obligations; and B. the appropriate period of protection for such works.
The answer to the first question is, essentially, yes. A number of treaties require that copyright subsist for a specific duration, though none requires that for unpublished works copyright continues to subsist indefinitely. Article 7(1) of the most recent revision of the Berne Convention requires that ‘[t]he term of protection granted by this Convention shall be the life of the author and fifty years after his death.’ The duration of protection under Berne is therefore not dependent upon publication: so long as the term extends for the life of the author and 50 years, then a signatory will not be in breach of the Convention. However, the term of copyright under the TRIPs Agreement is slightly different. Article 12 states that
Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term
269 shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.
Thus under TRIPS, where a work remains unpublished after a 50 year period, copyright will expire at the end of the calendar year 50 years after creation. Copyright in unpublished works therefore only need run for 50 years. Although this period may be preferable from a public domain perspective, should Australia enact that term it would possibly be in breach of both the Berne Convention and the AUSFTA. As discussed in Chapter Seven, the AUSFTA required Australia to extend its copyright term to ‘life- plus-70’ for published works and ‘70 years from the end of the calendar year of the first authorised publication of the work’ for unpublished works. However, as I further noted, Article 17.4.4(b)(ii) also provided what could be described as a ‘get out of copyright’ card: where publication did not occur within 50 years from the creation of the work, then copyright would expire 70 years after the calendar year in which the work was made.
Thus none of these international agreements requires that Australia maintain perpetual protection for unpublished works. It is therefore legally possible for the Parliament to curb this term and a variety of options for the term that could be introduced in its place. This leads to the second issue: the appropriate term of protection for unpublished works. In the United Kingdom, pursuant to section 12(1) of the Copyright, Designs and Patents Act 1988, the Berne period of ‘life-plus-50’ was initially adopted and then later modified to ‘life-plus-70’ following the 1993 EU Directive that sought to ‘harmonize’ the term of protection throughout the European Union.21 This is what is provided in section 33(2) of the 1968 Act, but without the proceeding provision which covers works unpublished at the death of the author (section 33(3)). Consequently in the UK copyright in all literary, dramatic, musical and artistic works – whether published or unpublished - therefore subsists for the life of the author and 70 years from the calendar year in which the author died. Copyright in this grouping of works in New Zealand also runs for ‘life-plus-50’ pursuant to section 22(1) of the Copyright Act 1994 (NZ), reflecting the fact that no AUSFTA-style term extension has occurred in that jurisdiction.
21 Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/9. 270
A similar position applies in the United States: under section 302(a) of the Copyright Act 1976, for works created after 1 January 1978, although pursuant to section 303(a) the position is slightly different for works created prior to that date. Given the previous influence of UK and US laws on Australia’s national copyright statutes, Australia should once again follow the lead of these two jurisdictions and adopt the ‘life-plus-70’ period of protection - why deviate from past patterns when there would be a benefit to Australia’s public domain? The solution to this issue would therefore be to remove sections 33(3), (4) and (5) from the 1968 Act.
It is arguable, of course, that limiting the term of protection for unpublished works is more significant for rhetoric than reality. Today the subsistence of copyright for 120 years feels quite close to perpetual copyright. In a similar vein, section 52 of the 1968 Act also allows the publication of unpublished literary, dramatic and musical works that are housed in libraries and archives in certain circumstances, thus mitigating the effect of perpetual copyright to some degree. It is only when one considers what might be entering the public domain in Australia now if such materials had a term of life of the author plus 70 years etc that we may understand its importance. For example, any unpublished papers of Robert O’Hara Burke and William John Wills, who undertook their famous expedition from Melbourne to the Gulf of Carpentaria in 1860-1861, would be entering the public domain now if there was no perpetual protection for unpublished works.22
B. A DEFINED TERM OF PROTECTION FOR UNPUBLISHED WORKS AND OTHER SUBJECT MATTER PROTECTED BY CROWN COPYRIGHT
In a similar vein - although arguably even more significantly - my next proposal for reform aims to end perpetual protection for works and other subject matter that are protected by Crown copyright. As I noted in Chapter Three, pursuant to section 180(1)(a) of the 1968 Act copyright in a literary, dramatic or musical work owned by the Commonwealth or a State ‘continues to subsist so long as the work remains unpublished’. Copyright expires 50 years after publication occurs. Section 180(3) creates the same situation for engravings and photographs, while section 181 provides
271 that copyright that is owned by the Crown in sound recordings or cinematograph films subsists until 50 years after the ‘calendar year in which the recording or film is first published.’ Perpetual protection is therefore available to Crown copyright-owned unpublished literary, dramatic or musical works; engravings; photographs; cinematograph films; and sound recordings.
Should the Federal Government adopt a defined period of protection for unpublished literary, dramatic and musical works produced by private individuals, then it should arguably also curb its own entitlement to perpetual copyright pursuant to sections 180(1)(a), (3) and 181. As the Berne Convention, TRIPs and the AUSFTA do not require the Federal Government to maintain its own copyright (and that of the States and Territories) for any specific period of time, it would be up to the discretion of the Parliament to determine an appropriate period. Given that the term of protection for published works is 50 years, then there is a case that this period should also be introduced for unpublished works. This would be different from the period of protection provided for Crown copyright works under the UK Copyright, Designs and Patents Act 1988, where section 163(2) states that copyright in literary, artistic, musical and dramatic works extends for 125 years. However, this is one occasion where it would perhaps be preferable to deviate from past patterns: as the same term for privately- created published works would apply to unpublished works pursuant to the reform suggested above, then the same period of protection for published and unpublished works should apply in the Crown copyright context.
Section 180(1) could therefore be modified to read:
C. Copyright in a literary, dramatic or musical work of which the Commonwealth or a State is the owner, or would, but for an agreement to which section 179 applies, be the owner, subsists until the end of 50 years after the expiration of the calendar year in which the work is first made.
22 Based on the account presented in Chapter Four, copyright had not yet been formally introduced in the Australian colonies at that time, but common law copyright would have subsisted in these unpublished papers, thus securing them perpetual protection. 272 IV. ADDITIONAL POSSIBILITIES FOR REFORM
The following are further possibilities for reform, but will not be considered in any great detail:
A reduction in length for works and other subject matter protected by the Crown copyright protections; The removal of Crown ownership of copyright in its entirety; The removal of the prerogative right of the Crown in legislation and case law, thus allowing these works to enter the public domain; A register of works and other subject matter that have entered the Australian public domain; and The creation of a statutory mechanism for public domain dedications.23
23 In an Australian context this move is recommended in Graham Greenleaf, ‘National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)’ (2009) 6 SCRIPT-ed 259, 311-313
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295 CASE LAW
AUSTRALIA
FEDERAL
A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 65 FCR 478
Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 144 ALR 528
Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581
Apple Computer Inc v Computer Edge Pty Ltd (1984) 53 ALR 225
Attorney General for the State of New South Wales v Brewery Employees Union of New South Wales (1908) 6 CLR 469
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Capital Television v Commonwealth (1992) 177 CLR 106
Australian Consolidated Press Ltd v Morgan (1965/1966) 39 ALJR 32
Australian Olympic Committee v Big Fights [1999] FCA 1042
Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480
Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339
Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52
Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375
Blackie & Sons Ltd v The Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396
Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Coleman v Power (2004) 220 CLR 1
Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 19 IPR 44
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Computer Edge Pty Ltd v Apple Computer Inc (1985) 161 CLR 17
Copyright Agency Ltd v State of New South Wales (2007) 73 IPR 1
Copyright Agency Ltd v State of New South Wales [2008] HCA 35
296
Copyright Owners Reproduction Society Ltd v E M I (Australia) Pty Ltd (1958) 100 CLR 597
Cunliffe v Commonwealth (1994) 182 CLR 272
Davis v Commonwealth (1988) 166 CLR 79
Desktop Marketing Systems v Telstra Corporation (2002) 119 FCR 491
Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 43 IPR 1
Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479
The Gramophone Company Ltd v Leo Feist Incorporated (1928) 41 CLR 1
Henley Arch Pty Ltd v Tamawood Pty Ltd (2003) 57 IPR 478
IceTv Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490
Kabushiki Kaisha Sony Computer Entertainment v Stevens (2003) 132 FCR 31
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
LED Builders Pty Ltd v Masterton Homes (NSW) Pty Ltd (1994) 30 IPR 447
Levy v Victoria (1997) 189 CLR 579
Mulholland v Australian Electoral Commission (2004) 220 CLR 181
Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 136 ALR 273
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99
Nine Network Australia Pty Ltd v IceTV Pty (2008) 76 IPR 31
Nintendo Co Ltd v Centronic Systems Pty Ltd (1994) 181 CLR 134
Pape v The Commissioner of Taxation of the Commonwealth of Australia [2009] HCA 23
297 R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207
Robinson v Sands & McDougall Pty Ltd (1916) 22 CLR 124
Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49
Seven Network (Operations) Ltd v Media and Entertainment Arts Alliance (2004) 148 FCR 145
Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291
Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529
Stephens v Western Australia (1994) 182 CLR 211
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Tamawood Ltd (formerly called Tamawood Pty Ltd) v Henley Arch Pty Ltd (2004) 61 IPR 378
Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd (2001) 51 IPR 257
Theophanous v Herald & Weekly Times (1994) 182 CLR 104
T R Flanagan Smash Repairs Pty Ltd v Jones (2000) 172 ALR 467
TS&B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 72 IPR 492
Universal Press Pty Ltd v Provest Ltd (1989) 87 ALR 497
Victoria Park Racing and Recreations Grounds Co Ltd v Taylor (1937) 58 CLR 479
Western Australia v Ward (2002) 213 CLR 1
COLONIAL, STATE AND TERRITORY
Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278
Attorney General for New South Wales v Butterworth & Co (Australia) (1938) 38 NSWSR 195
Beck v Montana Constructions Pty Ltd (1964) 80 WN (NSW) 1578
Canterbury Park Race Course Co. Ltd. v Hopkins (1932) 49 WN (NSW) 27
Cuisenaire v Reed [1963] VR 719
298 Davis v Hussey & Gillingham [1911] SASR 11
Dronpool Pty Ltd v Hunter (1984) 3 IPR 310
Finn v Pugliese (1918) 18 SR (NSW) 531
Fishburn Brothers v Adelaide Cyclorama Co Ltd (1892) 25 SALR 20
Harpur v Lambourne (1999) 45 IPR 213
Inala Industries Pty Ltd v Associated Enterprises Pty Ltd (1960) Qd R 562
In re Martin; Ex parte The Equitable Life Assurance Society of the USA (1884) 10 VLR (L) 196
John Fairfax & Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 413
Jones v Nicholson and Co (1892) 9 WN (NSW) 74
Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213
Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265
Mander v O’Brien [1934] SASR 87
Meccano Ltd v Anthony Hordern & Sons Ltd (1918) 18 SR (NSW) 606
Moorefield Race Club Ltd v Longfield (1932) 49 WN (NSW) 102
Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd (1987) 9 IPR 88
Piddington v Philip (1893) 14 NSWLR 159
R v Radke; Ex parte Dyke (1882) 8 VLR (L) 23
Real Estate Institute of NSW v Wood (1923) 23 SR (NSW) 349
Sampson v Brokensha & Shaw Ltd (1935) 37 WALR 90
Smith’s Newspapers Ltd v The Labor Daily (1925) 25 SR (NSW) 593
T M Hall & Co v Whittington & Co (1892) 18 VLR 525
Weekes v Williamson (1886) 12 VLR 483
Wilson v Luke (1875) 1 VLR (E) 127
Wilson v Rowcroft (1873) 4 AJR 57
299 Winterbottom for the Western Australian Turf Club v Wintle (1948) 50 WALR 58
Victoria Park Racing and Recreations Grounds Co Ltd v Taylor (1936) 37 SR (NSW) 322
UNITED KINGDOM
Ashdown v Telegraph Group [2001] EWCA Civ 1142
Bowden Brothers v Amalgamated Pictorials Ltd [1911] 1 Ch 386
British Leyland Motor Corp. v Armstrong Patents [1982] F.S.R 481
Cox v Land and Water Journal Co (1869) LR 9 Eq 324
Glyn v Weston Feature Film Company [1916] 1 Ch 261
Hanfstaengl v Empire Palace [1894] 2 Ch 1
Mansell v Valley Printing Co [1908] 1 Ch 567
Mansell v Valley Printing Co [1908] 2 Ch 441
Plix Products v Frank M Winstone (Merchants) [1986] F.S.R 63
Routledge v Low (1868) LR 3 HL 100
Time Warner Entertainment Co Ltd v Channel 4 Television Corporation PLC (1993) 28 IPR 459
Wilkins v Aikin (1810) 34 ER 163
UNITED STATES OF AMERICA
Eldred v Ashcroft 537 US 186 (2003)
Feist Publications Inc v Rural Telephone Service Co 499 U.S 340 (1991)
Graham v John Deere Co 383 US 1 (1966)
Harper & Row Publishers v Nation Enterprises 471 US 539 (1985)
Imazio Nursery Inc v Dania Greenhouses 69 F 3d 1560 (1995)
International New Service v Associated Press 248 US 215 (1918)
National Comics Publications Inc v Fawcett Publications Inc 191 F2d 594 (2d Circuit, 1952)
300
New York Times Co v Sullivan 376 US 253 (1964)
Sony Corporation of America v Universal City Studios Inc 464 US 417 (1984)
CANADA
CCH Canadian Ltd v Law Society of Upper Canada [2004] SCC 13
301 LEGISLATION
AUSTRALIA
FEDERAL
Australian Constitution 1900 (Cth)
Broadcasting Act 1942 (Cth)
Circuit Layouts Act 1989 (Cth)
Commonwealth Electoral Act 1918 (Cth)
Copyright Act 1905 (Cth)
Copyright Act 1912 (Cth)
Copyright Act 1933 (Cth)
Copyright Act 1935 (Cth)
Copyright Act 1963 (Cth)
Copyright Act 1968 (Cth)
Copyright Amendment Act 1984 (Cth)
Copyright Amendment Act 1989 (Cth)
Copyright Amendment Act 2006 (Cth)
Copyright Amendment (Digital Agenda) Act 2000 (Cth)
Copyright Amendment (Moral Rights) Act 2000 (Cth)
Copyright Bill 1905 (Cth)
Copyright Bill 1906 (Cth)
Copyright (World Trade Organization Amendments) Act 1994 (Cth)
Designs Act 2003 (Cth)
Industrial Relations Act 1988 (Cth)
Olympic Insignia Protection Act 1987 (Cth)
Patents Act 1990 (Cth)
302
Plant Breeder’s Rights Act 1994 (Cth)
Plant Variety Rights Act 1987 (Cth)
Political Broadcasts and Political Disclosures Act 1991 (Cth)
Statute Law Revision Act 1950 (Cth)
Trade Marks Act 1905 (Cth)
Trade Marks Act 1995 (Cth)
US Free Trade Agreement Implementation Act 2004 (Cth)
COLONIAL, STATE AND TERRITORY
An Act to authorize the Governor General with the advice of the Executive Council to grant Letters of Registration for all inventions and improvements in the Arts or Manufactures to have the same effect as Letters Patent in England so far as regards this Colony, 16 Vict no 25 (NSW)
An Act to consolidate the Law relating to Copyright (Copyright Act 1890), 54 Vict no 1076 (Vic)
An Act to make Provision for the Registration of Copyright in Books and Dramatic Pieces Published in Queensland (The Copyright Registration Act (Queensland) 1887), 51 Vic tno 2 (Qld)
An Act to regulate the Law of Copyright, and for other purposes (The Copyright Act 1878), 41 & 42 Vict no 95 (SA)
An Act to regulate the Law of Copyright, and for other purposes (The Copyright Act, 1895), 59 Vict no 24 (WA)
An Act to secure to Proprietors of Designs for Articles and Works of Manufacture and Art, and to Proprietors of Works of Literature and Fine Art, the Copyright of such Designs and Works for a limited period (The Copyright Act 1869), 33 Vict no 350 (Vic)
An Act to secure to Proprietors of Works of Literature and Fine Art and to Proprietors of Designs for Articles and Works of Manufacture and Art the Copyright of such Works and Designs for a limited period (Copyright Act 1879), 22 Vict no 20 (NSW)
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Copyright Register Act 1887, 51 Vict No 3 (WA)
303 Customs Act 1890, 54 Vict no 1081 (Vic)
Defamation Act 1974 (NSW)
Human Rights Act 2004 (ACT)
The Copyright (Fine Arts) Registration Act, 1892, 56 Vict no 6 (Qld)
The Copyright Registration Act 1898, 62 Vict no 13 (Qld)
The Newspaper Copyright Act 1891, 55 Vict no 49 (Tas)
The Telegraphic Messages Copyright Act 1871, 35 Vict no 414 (Vic)
The Telegram Copyright Act 1872, 35 & 36 Vict no 10 (SA)
The Telegram Copyright Act 1872, 36 Vict no 7 (WA)
Vagrants, Gaming and Other Offences Act 1931 (Qld)
Wildlife (Game)(Hunting Season) Regulations 1994 (Vic)
UNITED KINGDOM
An Act for amending the Law relating to Copyright in Works of the Fine Arts, and for repressing the Commission of Fraud in the Production and Sale of such Works, 25 & 26 Vict, c 68 (1862)
An Act for preventing the Publication of Lectures without Consent, 5 & 6 Wm IV, c 65 (1835)
An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, During the Times therein mentioned, 1710, 8 Anne, c 19
An act for the encouragement of the arts of designing, engraving, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers, during the time therein mentioned, 3 Geo II, c 13 (1735)
An Act to amend and consolidate the Laws relating to the Customs of the United Kingdom and of the Isle of Man, and certain Laws relating to Trade and Navigation and the British Possessions, 16 & 17 Vict, c 107 (1853)
An Act to amend and render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts of Busts, and other Things therein mentioned ; and for giving further Encouragement to such Arts, 54 Geo III, c 56 (1814)
304 An act to amend and render more effectual an act made in the eighth year of the reign of King George the Second, for encouragement of the arts of designing, engraving, and etching, historical and other prints ; and for the vesting in, and securing to, Jane Hogarth, widow, the property in certain prints, 7 Geo III, c 38 (1766)
An Act to amend the Law of Copyright, 5 & 6 Vict, c 45 (1842)
An Act to amend the Law respecting International and Colonial Copyright, 49 & 50 Vict, c 33 (1886)
An Act to consolidate the Customs Laws 39 & 40 Vict, c 36 (1876)
Copyright Act 1911 (Imp), c 46
Copyright Act 1956 (UK), c 74
Copyright Bill (House of Commons, no. 295, vol 1, 1900) to amend and consolidate the Law relating to Literary Copyright
Copyright (Artistic Bill) (House of Lords, Bill 192, vol 4, 1900) to amend and consolidate the Law relating to Artistic Copyright in Artistic Works
Copyright, Designs and Patents Act 1988 (UK), c 48
Federal Council of Australasia Act 1885 48 & 49 Vict, c 60
Statute of Westminster 1931 (UK)
The International Copyright Act, 1886, 49 & 50 Vict, c 33
The Musical Copyright Act, 1906, 6 Edw 7, c 36
The Musical (Summary Proceedings) Copyright Act, 1902, 2 Edw 7, c 15
UNITED STATES OF AMERICA
Copyright Act 1976 (US)
Copyright Term Extension Act 1998 (US)
Public Access to Science Act, HR 2613, 108th Congress (‘To amend title 17, United States Code, to exclude from copyright protection works resulting from scientific research substantially funded by the Federal Government’)
United States Constitution 1787 (US)
305 OTHER JURISDICTIONS
Canadian Charter of Rights and Freedoms (1982) (Canada)
Constitution Act 1867 (Canada)
Copyright Act 1994 (NZ)
Copyright Act 1987 (Sg)
New Zealand Bill of Rights Act 1990 (NZ)
306 TREATIES
Additional Act Amendment Articles 2,3,5,7,12, and 20, of the Convention of September 9, 1886, and Numbers 1 and 4 of the Final Protocol Indexed Thereto of May 4, 1896
Australia-United States Free Trade Agreement (2004)
Berne Convention for the Protection of Literary and Artistic Works Signed on September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, revised at Brussels on June 26, 1948, and revised at Stockholm on July 14, 1967
Charter of Fundamental Rights of the European Union [2000] OJ C 364/3
Convention Concerning the Creation of An International Union for the Protection of Literary and Artistic Works of September 9 1886
Council Direction 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights [1993] OJ L 290/9
Revised Berne Convention for the Protection of Literary and Artistic Works of November 13, 1908 (Berlin Act, 1908)
307 OTHER SOURCES
‘A Master Printer. Fifty Years in Business. Mr A.H. Massina’, The Herald (Melbourne), 2 March 1909
Australia, Government Response to Intellectual Property and Competition Review Recommendations, 28 August 2001
Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.2: Life expectancy at single ages (ex), males, Australia, 1881 onwards’, 2008,
Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 7.6 Life expectancy at single ages (ex), females, Australia, 1881 onwards’, 2008,
Australian Bureau of Statistics, Australian Historical Population Statistics, 3105.0.65.001, ‘Table 9.7: Population, sex and country of birth, states and territories, 1901 census’, 2008,
Australian Bureau of Statistics, Dwelling Unit Commencements, Australia, Preliminary, Jun 2009, 8750.0, ‘Table 1: Number of Dwelling Unit Commencements, by Sector, Australia’, 2009,
Australian Bureau of Statistics, Household Use of Information Technology Australia, 8146.0, 2000, 3
Australian Digital Alliance:Home
Australian Library and Information Association, Submission to the Senate Select Committee on the Free Trade Agreement Between Australia and the United States of America, 30 April 2004, 4
308 Browne, Geoff, ‘Spicer, Sir John Armstrong (1899 – 1978)’, Australian Dictionary of Biography Online Edition at
CHOICE Online
Cochrane, Nathan, ‘Free trade at a price’, The Sydney Morning Herald, 11 November 2003
Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 December 1905
Commonwealth of Australia, Parliamentary Debates, House of Representatives, 30 October 1912
Commonwealth of Australia, Parliamentary Debates, House of Representatives, 16 May 1968
Commonwealth of Australia, Parliamentary Debates, House of Representatives, 9 December 2004
Commonwealth of Australia, Parliamentary Debates, Senate, 24 August 1905
Commonwealth of Australia, Parliamentary Debates, Senate, 30 August 1905
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Commonwealth of Australia, Parliamentary Debates, Senate, 28 September 1905
Commonwealth of Australia, Parliamentary Debates, Senate, 12 October 1905
Commonwealth of Australia, Parliamentary Debates, Senate, 5 October 1911
Commonwealth of Australia, Parliamentary Debates, Senate, 18 October 1911
Commonwealth of Australia, Parliamentary Debates, Senate, 26 July 1912
Commonwealth of Australia, Parliamentary Debates, Senate, 23 October 1912
Commonwealth of Australia, Parliamentary Debates, Senate, 3 August 2004
Commonwealth of Australia, Parliamentary Debates, Senate, 12 August 2004
Copyright Agency Limited, Submission to the Senate Select Committee on the Free Trade Agreement Between Australia and the United States of America, 7 May 2004, 3-5
309
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Creative Commons, ‘CC0 1.0 Universal’
‘Cup Favourite – Attempt to Harm’, The Canberra Times (Canberra), 3 November 1930, 3
Deazley, Ronan, ‘Commentary on Publication of Lectures Act 1835', in Lionel Bently and Martin Kretschmer, Primary Sources on Copyright (1450-1900) (2008)
Duke University Law School ‘Conference on the Public Domain’
E A Petherick & Co’s Monthly Catalogue, 31 March 1890 (Vol 1, No 1)
E A Petherick & Co’s Monthly Catalogue, 31 July 1890 (Vol 1, No 5)
E A Petherick & Co.’s Monthly Catalogue, 28 February 1893 (Vol 4, No 36)
Electronic Frontiers Australia
Electronic Frontiers Australia, Submission to the Senate Select Committee on the Free Trade Agreement Between Australia and the United States of America, 30 April 2004, 8-9
Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999
Explanatory Memorandum, US Free Trade Agreement Implementation Bill 2004 (Cth)
Garnaut, John, ‘End of the Great Australian Dream?’, The Age (Melbourne), 14 July 2003
Gittins, Ross, ‘Costs aplenty in “free” trade IP deals with US’, The Sydney Morning Herald, 24 July 2004
Great Britain, Minutes of Evidence Taken Before the Law of Copyright Committee; Together with an Appendix and Table of Contents, Cd 5051 (1909, Her Majesty’s Stationery Office, London)
Griffith University ‘Defining the Public Domain Conference’,
310 ‘“His Natural Life.”: Copyright of Drama’, The Argus, 16 June 1916, 5, available at
Hodgkinson, Roma D, ‘Tennyson, Hallam (1852 - 1928)’, Australian Dictionary of Biography (Online Edition) available at
‘IceTv’
Jackson, Sally, ‘Fairfax media fight for headline rights’, The Australian, 4 September 2008,
Jackson, Sally, ‘Fairfax, LexisNexis in court over headlines copyright’, The Australian, 10 August 2009,
Jackson, Sally, ‘Fairfax accuses website of plagiarism’, The Australian, 24 August 2009,
National Archives of Australia: Attorney-General's Department; A2863; 1905/25, ‘Copyright Act 1905’; 1905 – 1906; The Senate, Copyright Bill, Memorandum of References to Similar Provisions in Acts and Bills, circulated by Senator Keating
National Archives of Australia, Constitution Review Committee, Series A432, Item 1958/3035 ‘Constitution Review Committee – Section 51(18) – copyright, patents and designs of trademarks’ 1956 – 1959
Official Report of the National Australasian Convention Debates (Sydney 1891)
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‘Petherick, Edward Augustus (1847 - 1917)’, Australian Dictionary of Biography: Online Edition,
‘Phar Lap’s Triumph’, The Argus (Melbourne), 5 November 1930, 9
Quartly, Marian, ‘Australians: Origins to Eureka’, The Sydney Morning Herald, 15 October 2009,
Shiel, Fergus, ‘Libraries caught in copyright changes’, The Age, 11 February 2004
311
‘Shloss v. Estate of Joyce’
Sprod, Michael, ‘Publishing’ in The Companion to Tasmanian History
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The Australasian, 6 April 1872, 434
‘The Melbourne Cup – Phar Lap’s Stupendous Task’, The Argus, 3 November 1930, 9
‘The Newspaper Copyright Act’, The West Australian, 20 December 1897, 5
Transcript of Proceedings, Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (High Court of Australia, Hayne and Callinan JJ, 20 June 2003)
Transcript of Proceedings, Stevens v Kabushiki Kaisha Sony Computer Entertainment (High Court of Australia, 8 February 2005)
Transcript of Proceedings, Copyright Agency Ltd v State of New South Wales (High Court of Australia, Gummow J, 16th November 2007)
Transcript of Proceedings, IceTv Pty Limited & Anor v Nine Network Australia Pty Ltd (High Court of Australia, Gummow J, 16 October 2008)
Victoria, Parliamentary Debates, Legislative Assembly, 9 June 1869
Victoria, Parliamentary Debates, Legislative Assembly, 31 August 1869
Victoria, Parliamentary Debates, Legislative Assembly, 2 November 1869
Victoria, Parliamentary Debates, Legislative Assembly, 7 November 1871
Victoria, Legislative Assembly, Parliamentary Debates, 16 November 1871
Victoria, Legislative Assembly, Parliamentary Debates, 21 November 1871
Victoria, Parliamentary Debates, Legislative Assembly, 15 September 1886
Williams, George, ‘Frozen continent’, The Sydney Morning Herald, 29 March 2008,
312