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 i 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 …………………………………………….................... ii 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 ……………………………………………........................... Date ……………………………………………........................... iii 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. iv 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