JILT 1997 (2) - Peter Brudenall
The Australian Copyright Amendment Bill: A Report
2. Moral Rights
This is a commentary article published on 30 June 1997.
Citation: Brudenall P, 'The Australian Copyright Amendment Bill: A Report', Commentary, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/copright/97_2brud/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/brudenall/>
The Australian Government, on the 18th of June this year, introduced a Bill into Parliament that, if passed, will substantially affect the rights of owners of copyright material in Australia. The most important of the proposed amendments set out in the Copyright Amendment Bill 1997 ('the Bill') is the provision for the protection of the moral rights of authors and artists. Also of significance in the Bill is the reform to the law of ownership of copyright in works of employed journalists, and the law governing the importation of goods with copyright labelling or packaging.
2. Moral Rights
Australia has to some extent lagged behind other common law countries in relation to the protection of moral rights. The United Kingdom and Canada, for example, introduced enhanced moral rights protection in 1988, whereas New Zealand adopted the UK model in 1994. Although the Australian Copyright Act 1968 does provide some protection for certain aspects of moral rights, for example, the duty to refrain from falsely attributing a work, this has generally been perceived by the arts community as an inadequate level of protection.
The amendments set out in Schedule 1 of the Bill are aimed at giving full effect to Australia's obligations under article 6bis of the Berne Convention for the Protection of Literary and Artistic Works. The rights introduced in the Bill comprise:
(a) a creator's right to be identified as the creator of a work (the right of attribution of authorship);
(b) the right of a creator to take action against false attribution (the right not to have authorship of a work falsely attributed); and
(c) a creator's right to object to derogatory treatment of his or her work which prejudicially affects his or her honour and reputation (the right of integrity of authorship of a work).
The rights will apply to authors of all works covered by the Berne Convention, that is, authors of literary, artistic, dramatic and musical works and authors of cinematograph films. Authors of cinematograph films are the principal director and the principal producer (where that person is a natural person) of the film.
The Government has recognised that the introduction of moral rights into Australian law may cause difficulties for users of copyright material. Thus, infringement of moral rights is subject to a "reasonableness" test.
The matters to be taken into account in determining whether it was reasonable in particular circumstances to subject the work to derogatory treatment include: the nature of the work; the purpose for which the work is used; the manner in which the work is used; the context in which the work is used; relevant industry practice; whether the work was made in the course of employment; and whether the treatment was required by law (eg, censorship) or was necessary to avoid a breach of the law (eg, defamation).
In relation to the right of integrity, much may also depend on how courts interpret the term "derogatory treatment". Essentially, derogatory treatment is defined in the Bill as the doing of anything, in relation to the work, that results in a material distortion of, the mutilation of, or a material alteration to, the work itself that is prejudicial to the author's honour or reputation, or the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation. This latter part of the definition is intended to address those instances where a work is used in an inappropriate context that may offend the author's honour or reputation.
The relief that a court may grant in an action for infringement of any of an author's moral rights includes: an injunction; damages for loss resulting from the infringement; a declaration that a moral right of the author has been infringed; an order that the defendant make a public apology; or an order that any false attribution or derogatory treatment be removed or reversed.
Of significance is that the Bill provides for a person to waive in writing all or any of his or her moral rights, either for the benefit of everyone, or for the benefit of a particular person or class of persons. A waiver may only relate to a specific work or works that exist when the waiver takes place, except for where works are made in the course of employment, in which case the waiver may relate to future works.
3. Journalists' Copyright
Currently, the Act provides an important exception to the general rule in copyright law that copyright in works created in the course of employment belongs to the employer. That exception has applied to employed newspaper journalists in relation to the use of their works other than for the purpose of publication in their employer's publication. Journalists in Australia have therefore been the relevant copyright owner for the purpose of book publication and photocopying of their articles, pictures or cartoons. Currently, journalists will also generally own copyright for the purpose of on-line dissemination. Not surprisingly, this has been problematic for newspaper and magazine proprietors seeking to provide on-line access to their publications, particularly via the Internet.
Schedule Two of the Bill resolves this difficulty by extending the publishers' copyright in their employees' creations to electronic rights. The Bill expressly excludes copies made as part of a transmission process from the scope of the journalists' rights of reproduction, including, for example, hard copy facsimiles made as a result of a fax machine transmission.
The book rights currently held by journalists in their articles and pictures remains with the journalists, as does the right of journalists to authorise the photocopying of their works albeit in a more limited form than is currently the case. Under the Bill, publishers have a right of objection to the making of photocopies of more than 15 percent of a newspaper or magazine other than those pages containing full-page advertisements. This provision has, however, troubled so-called "media monitoring" organisations who, under licence from the journalists or their agents, provide press-clipping services and often photocopy more than 15 percent of a newspaper or magazine.
4. Amendments Relating To Labelling And Packaging Of Imported Goods
Importers of goods that are not protected by copyright are currently able to use the importation provisions of the Act to control the importation of those goods through the copyright in the artistic and/or literary works on the packaging or labelling, or through the copyright in accompanying materials such as instructional video and audio tapes. This practice is believed to be quite widespread in some industries such as the liquor and toy industries.
In 1988, a report by the Copyright Law Review Committee recommended to the then Government that copyright in packaging or labelling of imported goods should not be able to be used to control distribution of the goods. (CLRC, 1988) For example, in Bailey v Boccacio (1986)6 IPR 279 the defendant imported for sale in Australia bottles of Bailey's Irish Cream at a lower cost than through the Australian distributor appointed by the manufacturer. The NSW Supreme Court held that the importation infringed the copyright in the artistic work (the picture on the bottle label) held by the manufacturer, and assigned in Australia to the distributor.
The Bill would prevent this practice from continuing. In essence the amendments will allow the importation of goods with copyright packaging or labelling without the permission of the copyright owner, if the owner of the copyright had agreed to the use of the copyright material with the goods. The amendments will not, however, affect the operation of the law governing trade marks, insofar as the packaging or labelling includes a trade mark.
5. Other Amendments
The other provisions in the Bill amend various aspects of the Copyright Act, including the provisions allowing governments to copy copyright material, the provisions allowing educational institutions to copy materials for educational purposes and the provisions governing the remedies that may be awarded by the courts for copyright infringement. Most of these amendments are of a fairly minor or technical nature.
Copyright reform of this level has been rare in Australia with Governments generally being slow to implement substantial change, despite the numerous recommendations of bodies such as the Copyright Law Review Committee ("CLRC"). Whilst the CLRC's present review of the Copyright Act continues until mid-1998, and is likely to result in a more comprehensive re-write of the Act, in the mean time this Bill represents a significant development for Australian creators. The Bill will be introduced into the Senate later in the year.