The government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (CTH)

This thesis examines the role of government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (Cth) and the policy considerations which Australian law should take into account in that role. There are two recurring themes arising in this examination which are significant to the recommendations and conclusions. The first is whether the needs and status of government should be different from private sector institutions, which also obtain copyright protection under the law. This theme stems from the 2005 Report on Crown Copyright by the Copyright Law Review Committee and the earlier Ergas Committee Report which are discussed in Chapters 2 and 8 of this thesis. The second is to identify the relationship between government copyright law and policy, national cultural policy and fundamental governance values. This theme goes to the essence of the thesis. For example, does the law and practice of government copyright properly reflect technological change in the way we now access and use information and does it facilitate the modern information management principles of government? Is the law and practice of government copyright consistent with the greater openness and accountability of government? The thesis concludes that government copyright law and practice in each of the three governmental roles recognised under the Copyright Act 1968 has not responded adequately to the information age and to the desire and the ability of individuals to access information quickly and effectively. The solution offered in this thesis is reform of the law and of public policy that is in step with access to information policy, the promotion of better communication and interaction with the community, and the enhanced preservation of government and private copyright materials for reasons of government accountability, effective administration and national culture and heritage.

Copyrights and copyfights : copyright law and the digital economy

This paper will consider questions around the reform of copyright law, and how they are increasingly being framed by the challenges of the digital economy. It discusses the review of copyright and the digital economy being undertaken by the Australian Law Reform Commission, with particular reference to the costs and benefits of copyright law to consumers and creative producers. We argue that there is a pressing need to develop fair copyright rules that encourage investment in the digital economy, allow widespread dissemination of knowledge through society, and support the innovative reuse of copyright works. To better align copyright law with these goals, we recommend that Australia introduce an open ended ‘fair use’ style copyright exception, and encourage the development of a digital copyright exchange of the sort discussed in the UK by the Hargreaves and Hooper Reports.

Copyright and the digital economy : submission to ALRC Discussion Paper 79

Australia should take the opportunity to clearly permit transformative uses of existing material, without requiring consideration of all four fairness factors. The key test should be the effect on the core licensing market of existing copyright expression. To accomplish this, a new transformative use exception should be introduced into Australian law. Alternatively, it should be presumptively fair to make a transformative use of existing material, regardless of commercial purpose, the character of the plaintiff's work, and amount and substantiality of the portion used, if the transformative work does not displace the market for the existing material.

Addressing the impediments copyright imposes on the use of patent specifications and prior art documents to improve patent quality

This article considers from an Australian perspective the impediments that copyright law places in the path of those who seek to use patent specifications and non-patent prior art documents in ways that are necessary to the proper functioning of the patent system. Until recently, copyright law in Australia had limited the uses to which members of the public could put patent specifications in that country. Those impediments have been removed as a result of an important legislative change to the way in which copyright in patent specifications can be enforced. The change gives the public a greater freedom to make use of patent specifications than it enjoyed before, and removes unwarranted restrictions upon the ways in which the public can reuse valuable information. However, what the amendment does not address is the impediments copyright imposes on using non-patent prior art documents in ways that advance the public interest.

Copyright in patent specifications and prior art documents: Addressing legitimate rights of user

One of the recent Raising the Bar amendments has removed impediments imposed by copyright law that may have limited the uses to which IP Australia and members of the public could have lawfully put patent specifications without seeking permission from the copyright owner. What the amendment does not do, however, is extend the same protections to those who wish to use prior art documents in ways that benefit the patent system and further the public interest.

Closing the gap between copyright and designs : an age of enlightnement or state of confusion?

The arena of intellectual property encompasses streams that often interrelate and overlap in protecting different aspects of intellectual property. Australian commentators suggest that ‘one of the most troublesome areas in the entire field of intellectual property has been the relationship between copyright protection for artistic works under the Copyright Act 1968 (Cth) and protection for registered designs under the Designs Act 1906 (Cth).’ [McKeough, J., Stewart, A., & Griffith, P. (2004). Intellectual property in Australia (3rd ed.). Chatswood, NSW: Butterworths.] [Ricketson, S., Richardson, M., & Davison, M. (2009). Intellectual property: Cases, materials and commentary (4th ed.). Chatswood, NSW: LexisNexis Butterworths.] This overlap has caused much confusion for both creators of artistic works and industrial designs, as there is an uncertainty of whether protection against infringement is afforded under the Copyright Act 1988 (Cth) or whether the Designs Act 2003 (Cth) will apply. In Australia, there is limited precedent that examines the crossover between copyright and designs. Essentially, the cases that have tested this issue remain unclear as to whether a design applied industrially will invoke copyright protection. The cases demonstrate that there is an inconsistency in this area despite the aims of the new provisions of the Designs Act 2003 (Cth) to close the loopholes between copyright and designs. This paper will discuss and evaluate the relationship between copyright protection for artistic works and protection for registered designs with respect to the Designs Act 2003 (Cth).

Are the offences in the Copyright Act 1968 (Cth) legitimate and effective? : an analysis based in harm and social norms theory

This thesis examines the effectiveness of offences in the Copyright Act 1968 (Cth) in the online environment. The application of social norm theories suggests that the offences will be ineffective in creating an effective deterrent to non-commercial copyright infringement.

Google Books wins ‘fair use’ but Australian copyright lags

Australia wants to foster innovation in a digital economy, but our copyright laws discourage businesses from investing in new technologies and make it harder for individuals to access the knowledge upon which innovation is based. Yesterday’s US decision in the Google Books case shows why US copyright law is much more supportive of innovation than ours. This article argues that if the government is serious about encouraging private innovation, introducing fair use is crucially important.

Treaty talk : past, present and future -- [Edited version of the inaugural Ngunnawal Lecture at the University of Canberra]

WELL I HEARD it on the radio and I saw it on the television. John Howard said there would be no talk of a treaty between his government and Indigenous people. He is not the first government leader to hold such views. Let me consider some of the public and official conversations that the concept of a treaty has invoked and what they reveal about white sovereignty. My interest in such dialogues stems from the fact that the idea of a treaty between white Australia and Indigenous people is not new and in the year of the centenary of Federation the Australian nation is still having trouble discussing it. Australian culture is less white than it used to be, but Anglicised whiteness forms the centre where white men established and defend institutions encouraging a possessive investment in white sovereignty. My intention is to invoke critical thought about these conversations. White sovereignty is a subject that asserts its dominance on social, political...

Copyright and computer generated materials : is it time to reboot the discussion about authorship?

Computer generated materials are ubiquitous and we encounter them on a daily basis, even though most people are unaware that this is the case. Blockbuster movies, television weather reports and telephone directories all include material that is produced by utilising computer technologies. Copyright protection for materials generated by a programmed computer was considered by the Federal Court and Full Court of the Federal Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd. The court held that the White and Yellow pages telephone directories produced by Telstra and its subsidiary, Sensis, were not protected by copyright because they were computer-generated works which lacked the requisite human authorship. The Copyright Act 1968 (Cth) does not contain specific provisions on the subsistence of copyright in computer-generated materials. Although the issue of copyright protection for computer-generated materials has been examined in Australia on two separate occasions by independently-constituted Copyright Law Review Committees over a period of 10 years (1988 to 1998), the Committees’ recommendations for legislative clarification by the enactment of specific amendments to the Copyright Act have not yet been implemented and the legal position remains unclear. In the light of the decision of the Full Federal Court in Telstra v Phone Directories it is timely to consider whether specific provisions should be enacted to clarify the position of computer-generated works under copyright law and, in particular, whether the requirement of human authorship for original works protected under Part III of the Copyright Act should now be reconceptualised to align with the realities of how copyright materials are created in the digital era.

Copyright exceptions beyond the Copyright Act 1968 (Cth)

Exceptions are an important part of the Australian copyright law landscape due to the role they play in delineating the extent of the rights held by copyright owners and, correspondingly, the permitted activities of users of copyright materials. The nature and scope of copyright exceptions has been examined in several reviews of copyright law and are again being considered by the Australian Law Reform Commission (ALRC) as part of the ‘Copyright and the Digital Economy’ review which is currently underway. The ALRC’s terms of reference require it to examine, inter alia, ‘whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment.’ While the ALRC inquiry focuses on exceptions provided under the Copyright Act 1968 (Cth) (“Copyright Act”), there are several copyright exceptions in other Commonwealth statutes which are of relevance and which should not be overlooked.

Caribbean copyright showdown

The tiny Caribbean island of Antigua doesn’t make the news very often. Located 1800 kilometres east of Miami, just north of Montserrat, it is best known as a holiday destination for well-heeled Europeans and celebrities with private yachts. Now it is in the headlines for an unexpected reason...

The only way to fix copyright is to make it fair

Everyone knows there’s a problem with copyright. Artists get paid very little for their work, and legitimate consumers aren’t getting a very fair deal either. Unfortunately, nobody agrees about how we should fix it. Speaking at the Australian Digital Alliance forum last Friday, the Attorney-General and Arts Minister George Brandis said we might have to ask Internet Service Providers (ISPs) to police copyright, in order to deal with “piracy”. In 2012, the High Court in the iiNet case thought it wasn’t a good idea to make ISPs responsible for protecting the rights of third parties...

Reluctantly virtual : modelling copyright industry dynamics

During the evolution of the music industry, developments in the media environment have required music firms to adapt in order to survive. Changes in broadcast radio programming during the 1950s; the Compact Cassette during the 1970s; and the deregulation of media ownership during the 1990s are all examples of changes which have heavily affected the music industry. This study explores similar contemporary dynamics, examines how decision makers in the music industry perceive and make sense of the developments, and reveals how they revise their business strategies, based on their mental models of the media environment. A qualitative system dynamics model is developed in order to support the reasoning brought forward by the study. The model is empirically grounded, but is also based on previous music industry research and a theoretical platform constituted by concepts from evolutionary economics and sociology of culture. The empirical data primarily consist of 36 personal interviews with decision makers in the American, British and Swedish music industrial ecosystems. The study argues that the model which is proposed, more effectively explains contemporary music industry dynamics than music industry models presented by previous research initiatives. Supported by the model, the study is able to show how “new” media outlets make old music business models obsolete and challenge the industry’s traditional power structures. It is no longer possible to expose music at one outlet (usually broadcast radio) in the hope that it will lead to sales of the same music at another (e.g. a compact disc). The study shows that many music industry decision makers still have not embraced the new logic, and have not yet challenged their traditional mental models of the media environment. Rather, they remain focused on preserving the pivotal role held by the CD and other physical distribution technologies. Further, the study shows that while many music firms remain attached to the old models, other firms, primarily music publishers, have accepted the transformation, and have reluctantly recognised the realities of a virtualised environment.

Fair use and the future of copyright

The Australian Law Reform Commission’s Final Report, Copyright and the Digital Economy, recommends the introduction of a flexible fair use provision. In doing so, it has sought to develop a technology-neutral approach to copyright that is adaptive to new technologies and which promotes innovation.