Part 2 of report on simplification of Australia’s copyright legislation released
Part 2 of the Copyright Law Review Committee’s Report on Simplification of the Copyright Act 1968 was released by the Attorney-General on 12 February 1999. The Committee proposes radical changes to Australian copyright law. The Report contains a detailed analysis of what the Committee perceives to be the problems with the law as it currently stands. These problems are unnecessary legislative complexity, an unjustified differential treatment of similar subject matter, and an undesirable degree of technological specificity of protected subject matter and exclusive rights. The Report sets out a number of principles around which the Committee recommends a new simplified Act be structured.
Categorisation of copyright subject matter
Recommendations include the following:
- there be only two categories of protected subject matter, to which different levels of protection apply;
- both encompass all material in the literary and artistic domain, a concept intended to embrace the range of material to which the Berne Convention applies but interpreted flexibly to include both traditional and non-traditional expressions of textual, aural and visual material;
- the factor for determining the category into which protected material falls, and hence the level of protection it is afforded, is the efforts of the person who undertakes its creation or production;
- material will be protected at the higher level only if it is the result of significant intellectual effort by the person who undertakes its creation, whilst material will be protected at the lower level only if it is the result of the application of time, effort and resources by the person who undertakes its production;
Categorisation of exclusive rights
Recommendations include the following:
- there be only two exclusive economic rights, the right of reproduction and the right of dissemination to the public, and two exclusive moral rights, the right of attribution and the right of integrity;
- the two ecomonic rights apply to both categories of protected subject matter;
- as far as practicable, for both categories of economic rights there be a harmonisation of the application of the activities which comprise the right to all the material within each category of protected subject matter; and
- the two moral rights apply only to the category of protected subject matter which is the result of significant intellectual effort by the person who undertakes its creation.
The Committee envisages that literary, dramatic, musical and artistic works would continue to receive the higher level of protection. In addition, cinematograph films, and other multimedia creations, would also receive the higher level of protection, where they are the result of significant intellectual effort. The Committee states that this approach allows the protection of performances at the higher level, should the Government wish to provide that. In addition, the Committee recognises that this approach leaves open the possibility of sound recordings, which currently receive a low level of protection, to be protected at the higher level, although the Committee expresses the opinion that sound recordings are unlikely to satisfy the higher innovation threshold. For the sake of certainty, the Committee proposes that express provision be made to the effect that broadcasts and published editions continue to be protected at the lower level only.
The Committee recommends that the current eight economic rights granted to copyright owners be reduced to two – the right of reproduction and the right of dissemination to the public. Both rights would be defined in broad and inclusive terms. The Committee envisages that the right of reproduction would embrace the current rights of literal copying, non-literal copying and adaptation. The right of dissemination to the public would include dissemination by any means, and thus embrace the current rights of performance, publication, rental, broadcast and cable diffusion, and the proposed new right of making available to the public which is provided for in the recent WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
To overcome the problems raised by the increasing use of computers in the creation of copyright material, the Committee proposes removing the need for an act of ‘authorship’ by a human. It recognises, however, that there remains a need to connect copyright material with a human, including for the purposes of duration and ownership of rights. It proposes that the connection be drawn by identifying the person who ‘undertakes the creation or production of’ the copyright material.
The Committee considered whether, and if so, how copyright should protect multimedia works. It concludes that the appropriate means of protection is through its proposals for simplification of the categorisation of subject matter, described previously. It states, however, that should this proposal not be adopted, it recommends instead that there be created a new, broadly defined, category of ‘audiovisual works’ to embrace cinematograph films and other multimedia entities.
Consistent with its proposals for simplification of categories of exclusive rights, the Committee recommends that the definition of publication in s.29(1) of the Act be amended so as to clearly apply to publication of copyright materials in the digital environment.
Untraceable copyright owners
The Committee considered a number of models for a scheme allowing for the use of copyright material in circumstances when the owner of the copyright cannot be found. It concludes that the problem is relatively small, that each of the various models are complex and would require a high level of administrative resources, and accordingly that the cost of any scheme would most likely outweigh the benefits. It does, however, recommend that in any future review of the jurisdiction of the Copyright Tribunal this issue be revisited, and in particular that consideration be given to the introduction of a scheme along the lines of a Scandinavian model.
Published edition copyright
The Committee states that the rationale for the current published edition copyright does not justify its extension into the digital environment. Accordingly, the Committee recommends that the copyright in a published edition be limited to the paper editions of copyright material only.
Inquiry into enforcement of copyright established
On 17 March this year the Federal Attorney-General referred this inquiry to the House of Representatives Standing Committee on Legal and Constitutional Affairs. The inquiry is a response to claims by Australian industries, including book publishing, film, music and software, that copyright owners are being cheated of valuable revenue by copyright pirates. The Committee will inquire into and report on issues relevant to the effective enforcement of copyright, including evidence of the type and scale of copyright infringement in Australia, options for copyright owners to protect their copyright against infringement, the adequacy of criminal sanctions against copyright infringement, and the adequacy of civil actions in protecting the interests of parties in copyright infringement actions including provisions for costs and remedies.