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Simplification of the Copyright Act 1968 (Part 2)
Phillip Bailey
Law & Bills Digest Group
23 March 1999
Simplification of the Copyright Act 1968 (Part 2)
In February 1999 the Copyright Law Review Committee (CLRC) released the
second and final part of its report on the Simplification of the Copyright
Act 1968. Together with Part 1, released in September 1998, this completes
the first comprehensive review of Australian Copyright law since 1959.
Continuing its focus on its terms of reference relating to simplification
of protected categories, subject matter and economic rights, CLRC2 considers
new rights provided in both the World Intellectual Property Organisation's
Copyright Treaty, and Performances and Phonogram Treaty (the WCT and the
WPPT). Principal rights under consideration include a right of communication
to the public, and a right of distribution (including the droit de
suite; 'art resales right', i.e. the right to a share of profits from
subsequent sales of the original work).
The Report discusses deficiencies in the current Act, examining several
options for reform, and then providing its proposed model. The report
then considers outstanding issues raised by the Copyright Convergence
Group and the Computer Software Protection report.(1)
Consideration of New Rights Provided in the WCT and the WPPT
Although Australia is yet to accede to these treaties, two rights contained
in the treaties are considered.
The right of communication to the public is provided for in article 8
of the WCT. This gives an author of an 'artistic or literary work' the
exclusive right to authorise the communication of their work to the public.
This right extends to 'making available' and hence covers works placed
on the Internet. CLRC2 includes this right in its proposed model even
though Australia has not yet acceded to the WCT or the WPPT.
A right of distribution is provided for in article 6 of the WCT and articles
8 and 12 of the WPPT. These provide authors and performers the right to
authorise copyright owners to make available to the public, both original
and copies of their protected material, through sale or other transfer
of ownership. CLRC2 recommends that any such right should be exhausted
after the first sale or other transfer of ownership. It further recommends
that a droit de suite type right should not be implemented.
Problems with the Current Act
CLRC2 is critical of the Copyright Act 1968, arguing that its
complexity and technological specificity result from the extensive categories
and rights delineated. Specific problems identified include:
- 'Works' and 'subject matter other than works' are given divergent
treatment in different parts of the Act, making it excessively complex,
and resulting in duplication.
- Differences in protection granted to different categories of works
within the same part of the Act. For example, unlike literary works,
artistic works are not granted the right of adaptation.
- Technological specificity resulting from narrow definitions used in
both protected subject matter and rights. This requires an ad hoc protection
of works that exploit new technologies.
- Undue specificity prejudices the protection of whole forms of works,
for example the 'multimedia entity' which does not currently gain protection
as an entity as a whole.
- The technology specific terms produce uncertainty as to whether dissemination
to the public via a computer network is protected. Even if a right of
transmission to the public is adopted, it is questionable whether works
transmitted in intangible form are protected.
- Under the current Act a work must be in material or tangible form
to be protected. This means that a work that exists only in intangible
form does not gain protection. One fear is that as computers and digital
technology are increasingly used, many works will not gain material
form.
- The current Act also requires a human author. CLRC2 notes the need
for a connection between work and author, but observes that as the use
of computers increases, the already uncertain level of required human
authorship will result in uncertainty as to the scope of the protection
granted.
Proposed Amendments
CLRC2 proposes several substantive amendments to remedy these deficiencies,
including:
- Replace the current eight categories of protected subject matter (eg
literary, dramatic, musical and artistic works, films, sound recordings,
broadcast and published editions), with two broad categories delineating
an innovation threshold. These two categories being 'Creations'
and 'Productions'. Creations are defined as the result of 'significant
intellectual effort' and Productions are the result of 'the application
of time, effort and resources'. Creations would gain greater protection
than Productions.
- Explicitly protect subject matter regardless of whether it is in a
tangible or intangible form (to ensure the protection of works that
come into existence via new technologies).
- Replace the current eight exclusive economic rights (the right to
reproduce, publish, perform, broadcast etc.) with two broad exclusive
rights: the right of reproduction, and the right of dissemination to
the public. These rights would apply to Creations and Productions, although
the right of reproduction would be limited to literal reproductions
in the case of Productions. Productions would only gain protection for
the period of 50 years from the date of dissemination to the public,
whereas Creations would have 50 years from either dissemination or the
death of author, whichever is greater.
- Provide two moral rights: the right of attribution and the right of
integrity. These rights are respectively the right of the author to
be given credit for the authorship, and the right to stop changes to
their work following the sale of the copyright. These rights are detailed
in article 6bis(1) and 6bis(2) of
the Berne Convention.(2) These moral rights would only apply to Creations.
Implications
If these proposed amendments were made, the practical implication would
most likely be that the scope of works protected would be expanded. This
is because all subject matter protected under the current Act would be
included in the two broad categories, and these categories could also
cover subject matter not currently covered. The scope of protection would
also be expanded by the proposed removal of the tangibility requirement.
Subject matter not currently protected by the Act (e.g. a speech, improvised
jazz piece, comedy act) would gain protection, regardless of the fact
that it does not exist in a tangible form.
This could conflict with current jurisprudence, e.g. under common law,
in the case of a journalist transcribing and reporting a spontaneous or
improvised speech, the copyright is granted to the journalist.(3)
Outstanding Issues
A third and final part of the Report considers outstanding issues raised
by the Copyright Convergence Group and the Computer Software Protection
report.
CLRC2 recommends five changes in response to these issues which are that:
- if the Government does not implement the 'technology neutral' approach
as recommended, then a broadly defined category of 'audiovisual works'
be introduced to cover 'multimedia entities'
- the present definition of 'publication' be clarified to apply to the
publication of copyright materials in the digital environment
- the jurisdiction of the Copyright Tribunal be extended
- a review be made of the 'legal deposit' provisions in the Act, and
- published edition copyright remain confined to print editions in hardcopy
form.
Discussion of Proposed Amendments
As noted, the proposed amendments would expand the scope of protected
subject matter. CLRC2 argues the change would allow the Act to be 'technology
neutral', and avoid the need for repeated amendment whenever new technology
is developed. However, the implications of such an outcome have been much
debated.
Debate has generally been between those representing consumer interests
and those representing copyright owner interests. The former argue that
the proposed reform would result in an expansion of scope and degree of
protection to copyright owners. They argue the result of this would be
an increase in costs to consumers and a restriction in the availability
of information. Those representing copyright owners on the other hand,
argue that such reform will provide certainty to copyright owners, in
particular those operating in the new digital realm, and hence encourage
them to make their works available. The Office of Regulation Review, suggests
in An Economic Analysis of Copyright Reform (a 1995 submission
to the CLRC), that the introduction of broad subject categories, as the
CLRC proposes, may actually complicate, rather than simplify the copyright
industry. This is because the unprecedented categories would involve an
abandonment of the current jurisprudence, and could cause uncertainty
and hence increase litigation.(4) It is also unclear whether the proposed
amendment to remove the material form requirement is necessary to protect
works utilising new technology.(5)
Concluding Comments
The possible implications of the amendments proposed by the CLRC are
considerable, especially the possible introduction of two broad categories
of subject matter, and the removal of a 'material form' requirement.
Such changes are a departure from current jurisprudence, and would be
a shift from the current technology specific, 'serendipity' approach,
to a technology neutral 'discretionary' approach. Such a change should
not be made without considerable account being given to the economic and
social impact, and the interests of both consumers and producers.
Endnotes
- This discussion occurs in Chapter 7, where the CLRC considers issues
raised by the Copyright Convergence Group in its 1994 report Highways
to Change, and the CLRC in its 1995 report Computer Software
Protection.
- The Berne Convention consists of 105 states and embodies a considerable
collection of basic rights that member states must afford to authors
of other member states. Australia has been a member in its own right
since 1928. The convention has been revised on numerous occasions, the
most recent being the 1971 Paris text.
- Walter v Lane [1900] AC 539.
- Office of Regulation Review. An Economic Analysis of Copyright
Reform: A submission to the Copyright Law Review Committee's review
of the Copyright Act 1968, 1995, p. 28.
- The CLRC claims it is necessary to remove the requirement of material
form to ensure that works created using new digital technology are protected,
yet any work created using digital technology is constituted in a form
from which the work can be reproduced, and hence is protected under
the current Act. [s. 10(1) Copyright Act 1968].
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