Digital Technology Law Journal
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Digital Technology Law Journal |
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Mark J Davison
Senior Lecturer
Faculty of Law
Monash University
Mark.Davison@law.monash.edu.au
This article discusses the main proposals of the Attorney-General's Discussion Paper entitled `Copyright Reform and the Digital Agenda' which was released in July, 1997. It explains the background to the proposals and considers some unresolved issues. In doing so, it examines some American proposals for copyright reform and comments on the relevance of these proposals to the process of copyright law reform in Australia.
[1] In July, 1997, the Commonwealth Attorney-General's Department issued a Discussion Paper entitled `Copyright Reform and the Digital Agenda' (`the Discussion Paper') which discussed the need for copyright reform in the light of digital technology and made several recommendations concerning changes to Australian copyright law.
[2] This article explains the major recommendations of the Discussion Paper and some of their implications. The Discussion Paper also raised a number of issues without providing firm recommendations concerning the resolution of those issues. These issues, such as the liability of Internet Service Providers (ISP's), are also discussed with particular emphasis on proposals contained in legislation which addresses these issues and which is presently before the Congress of the United States of America. Finally, some comments are made on the implications for Australia of existing and proposed American legislation.
1. The Key Proposals
[3] The major proposal of the Discussion Paper is the introduction of a right of transmission and a right of making available to the public which are designed to be technology-neutral rights. At present, the Copyright Act 1968 (Cth) (`the Act') provides rights to copyright owners which are technology specific in that the technological means by which the copyright material is disseminated determines which of the exclusive rights of copyright is being exercised by the disseminator of that material. In particular, the existing right to broadcast involves the transmission of copyright material by `wireless telegraphy to the public' whereas the right of causing material to be `transmitted to subscribers to a diffusion service' is dependent upon the copyright material being transmitted `over wires, or over other paths provided by a material substance'. This distinction between the technological means by which copyright material is disseminated was the subject of the recent decision of the High Court of Australia in Telstra Corporation Ltd v Australasian Performing Right Association (APRA). [1] APRA objected to Telstra operating `music-on-hold' services. The music from these services was provided either via conventional phones linked to the service by telephone wires or mobile phones which, obviously, were wireless. Consequently, APRA relied upon the rights of causing material to be distributed to subscribers to a diffusion service in respect of its objections to the service for conventional phones and the broadcasting right in respect of the service for mobile phones.
[4] The inappropriateness of the Act's distinction between the methods of delivery of musical works was demonstrated by the High Court's decision. The High Court unanimously found that Telstra was infringing the broadcasting right in respect of its services for mobile phones. However, for technical reasons associated with the wording of the relevant right, the High Court decided 3-2 that the right of causing to be transmitted to subscribers to a diffusion service was breached by Telstra's provision of the services to conventional phones. [2] The majority consisted of a joint judgment by Dawson and Gaudron JJ and a separate judgment by Kirby J. Some differences in those two judgments suggest further difficulties may arise in applying the existing legislation to any later cases involving digital services such as the provision of internet services and carriage of telecommunications. For example, the joint judgment of Dawson and Gaudron JJ stated that the application of the right of causing to be transmitted to subscribers was breached whether or not Telstra had itself provided or selected the music that was transmitted. [3] This suggests an Internet Service Provider (ISP) may be in breach of the right if it gives its subscribers access to copyright material while Kirby J made it clear that he was not expressing a view on these issues. [4] Hence, the possibility exists of decisions concerning copyright liability varying according to the particular medium used to convey copyright material.
[5] Such difficulties would be eliminated by the new rights of transmission and making available to the public. The proposed right of transmission would replace the existing diffusion and wireless broadcasting rights in the Copyright Act and apply to any transmission to the public at a time chosen by the person making the transmission regardless of the technical means of transmission. [5] Hence it would cover `broadcasts' by wire.
[6] The right of making available to the public would apply primarily to interactive on-demand on-line services where the end user dictates when the material is accessed rather than the person responsible for making the material available. It therefore deals with point-to-point transmissions to members of the public rather than simultaneous single point to multi-point transmissions which would be covered by the new transmission right. [6]
[7] Under the proposal, the new right of transmission would apply to all works, film, broadcasts and sound recordings, although given the compulsory licensing provisions in the Act concerning sound recordings, the right in respect of sound recordings would be a right to remuneration rather than an exclusive right. [7] A proposal that a right of remuneration be extended to performers in respect of their fixed performances will be the subject of a later issues paper. [8]
[8] The right of making available to the public would be extended to works, films and sound recordings. Again, a proposal that a right of remuneration be extended to performers in respect of their fixed performances will be the subject of a later issues paper. [9]
[9] The proposal in respect of these two new rights is prompted by a number of factors. These include the obvious difficulties with the Act's present treatment of different technological means of disseminating material, previous recommendations of the Copyright Convergence Group [10] (CCG) and the treaties agreed upon at the Diplomatic Conference conducted under the auspices of the World Intellectual Property Organisation (WIPO) in Geneva in December, 1996. These two treaties are the WIPO Copyright Treaty (`the Copyright Treaty') and the WIPO Performances and Phonograms Treaty (`the Phonograms Treaty').
[10] In 1994, the CCG recommended the introduction of a right of transmission to overcome the present difficulties in the Act. [11] The broad thrust of that recommendation is similar to the recommendation in the Discussion Paper except that the CCG's right of transmission was to encompass both the right of transmission and the right of making available to the public as defined in the Discussion Paper. The proposal in the Discussion Paper is a more refined version of that initial proposal because it differentiates between transmissions and the making available of material accessed at a time dictated by the end user.
[11] In addition, the recommendations in the Discussion Paper are designed to ensure compliance with key aspects of the Copyright Treaty and the Phonograms Treaty. In particular, Article 8 of the Copyright Treaty provides that the authors of literary and artistic works shall `enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.' The same right is also granted in respect of fixed performances and phonograms by Articles 10 and 14 of the Phonograms Treaty.
[12] These rights would supplement existing rights that exist under the Berne Convention and, more importantly, do away with distinctions between the rights of copyright owners that are based upon the technological means by which copyright material is disseminated. For example, Articles 11 bis(1)(i), (ii) and (iii) of the Berne Convention confer rights involving communication to the public but these rights are based on the means of communication.
1.1. Circumventing Technological Protection and Protection of Rights Management Information
[13] There are two other important aspects of the Copyright Treaty and the Phonograms Treaty that should be noted at this stage. First, Article 11 of the Copyright Treaty and Article 18 of the Phonograms Treaty require the provision of:
`Adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights [under the Copyright Treaty, the Phonograms Treaty and the Berne Convention] and that restrict acts ... which are not authorised ... or permitted by law.'
[14] Second, Article 12 of the Copyright Treaty and Article 19 of the Phonograms Treaty require the protection of rights management information. Rights management information is `information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work and any numbers or codes that represent such information ...' [12]
[15] Contracting Parties are required to provide adequate legal remedies against those who deliberately tamper with electronic rights management information [13] or `distribute, import for distribution, broadcast or communicate to the public, works or copies of works knowing that electronic rights management information has been removed or altered without authority'. [14]
[16] The Discussion Paper recommends the implementation of these two aspects of both treaties by the introduction of legislation making it an offence to manufacture, import, possess or distribute for commercial purposes unauthorised equipment for receiving encrypted broadcast signals, circumventing locks on computer programs and materials on Internet sites and `circumventing `spoiler' devices incorporated in compacts discs and cassette tapes'. [15] It invites submissions on whether it should be an offence to receive unauthorised encrypted subscription broadcast signals. [16]
[17] It also proposes to create offences for intentionally removing or altering any electronic rights management information attached to a copy of copyright material or to commercially distribute, import for commercial distribution, transmit or make available to the public copies of copyright works where it is known that the rights management information has been removed or altered. [17]
2. Some Unresolved Issues
[18] While the broad thrust of the response to the obvious legal difficulties brought about by advances in digital technology is no doubt correct, the old adage that `the devil is in the detail' has considerable application to these new proposals. The Discussion Paper itself acknowledges some of the difficulties associated with the introduction of the new rights and the application of existing rights to new uses of copyright material. The Discussion Paper addresses a number of these issues but, as is to be expected in a document of that nature, does not provide a solution to many of them. Some of those issues are addressed below.
2.1. `To the Public'
[19] One of the key elements of the definition of the new right of making available to the public is how `to the public' will be defined by the courts. The CCG recommended that this expression not be defined except to provide that any transmission made for a commercial purpose should be deemed to be transmissions to the public. [18] The Discussion Paper adopts the same position. Consequently, `to the public' will be defined by the courts. The most recent authoritative decision in this respect is the High Court decision in the Telstra case. [19] The reliance by APRA in that case on the exclusive right of broadcasting meant that it had to prove that Telstra's music-on-hold services were being transmitted `to the public'. Telstra claimed that the transmission of the music was not `to the public' because the music was transmitted to each caller individually, they may have received the music in private or domestic circumstances and the privacy of the telephone calls was protected by legislation. [20]
[20] Nevertheless, it was held that the single point to single point transmissions were `to the public'. [21] In addition, the court noted that `to the public' was a broader concept than `in public' since `it makes clear that the place where the relevant communication occurs is irrelevant. That is to say, there can be a communication to individual members of the public in a private or domestic setting which is nevertheless a communication to the public'. [22]
[21] The court also acknowledged a long line of previous case authorities on the definition of `public' for copyright purposes. From those can be distilled various tests of the `public'. In particular, a key issue is what is the relationship of the audience to the owner of the copyright. [23]
`If the audience considered in relation to the owner of the copyright may properly be described as the owner's `public' or part of his `public', then in performing the work before that audience he would in my opinion be exercising the statutory right conferred upon him and any one who without his consent performed the work before the audience would be infringing his copyright'. [24]
[22] A related issue is whether the people receiving the copyright material could be considered to be people who would could be expected to pay for the material or those responsible for ensuring that the material is disseminated to them are willing to pay for that to occur. [25] In either of those cases, the recipients of the copyright material could be considered to be `the public'.
[23] The Discussion Paper provides some examples of what would and what would not constitute exercise of the right of making available to the public. [26] It suggests that linking a server with copyright material to the World Wide Web (WWW) would constitute such an exercise of the right as would uploading a document to a WWW site and posting an article to a newsgroup. [27] On the other hand, a number of private activities would not constitute a breach of the right. These include emailing an article to a friend and downloading a document from the WWW. [28] In any event, the changes in the way copyright material is delivered mean that the courts will experience some difficulties in defining `to the public' and there will need to be close scrutiny of the actual relationship between those communicating material and those receiving or accessing it.
2.2. The Right of Reproduction and Browsing
[24] While the new rights of transmission and making available to the public are a crucial aspect of the reform of copyright law and defining `to the public' will be an ongoing issue, the application of the existing rights of reproduction and copying is also a critical consideration. In particular, a question arises as to whether browsing the WWW or making temporary copies of copyright material in the course of transmission would constitute a breach of the right of reproduction.
[25] The Discussion Paper has specifically addressed this issue by recommending that the Copyright Act 1968 (Cth) provide for `exceptions in relation to temporary and incidental copies made in the course of the technical process of transmitting and on-line `browsing' of copyright material'. [29] Without such specific exceptions, it would be arguable that browsing the WWW constitutes a reproduction. It seems that this is considered to be the case in the United States of America. [30]
[26] In any event, a real difficulty is that it is arguable that the WIPO Copyright Treaty and the Berne Convention require such temporary copies to be treated as reproductions. A number of agreed statements concerning the WIPO Copyright Treaty were adopted by the Diplomatic Conference at the time of the adoption of the Copyright Treaty. The agreed statement concerning Article 1(4) of the Treaty stated:
`The reproduction right ... and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.'
[27] This suggests that temporary copies such as those created in the Random Access Memory (RAM) of a computer during the process of browsing are reproductions for copyright purposes, although there is some uncertainty on the point for several reasons. The first of these is that the use of the word `storage' in the agreed statement introduces some uncertainty because it could be argued that temporary copies produced as part of the process of transmission are not stored. The second point is that this agreed statement was not unanimously adopted at the Diplomatic Conference and its status is therefore uncertain. [31] Finally, the Diplomatic Conference did not adopt Article 7 of the original draft of the Treaty. Article 7 of the draft treaty clearly intended to provide that temporary copies were reproductions and that such copies could only be made in the course of use of work that is authorized by the author or permitted by law. The refusal to adopt Article 7 further suggests that temporary copies are not required to be treated as reproductions. [32]
[28] However, if such temporary copies must be regarded as reproductions in order for Australia to comply with the Copyright Treaty and the Berne Convention, the exception proposed in the Discussion Paper would have to be justified by the exceptions permitted by Article 9(2) of the Berne Convention and Article 10(1) of the Copyright Treaty which permits limitations of or exception to the rights granted to authors:
`in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.'
[29] Arguably, the proposed exception would fall within this provision for exceptions. Such an argument would be based on the view that the rights of transmission and making available to the public, together with the operation of the right of reproduction, would ensure an adequate return for copyright owners such that they would not need the right to charge for `browsing' and other temporary copies. The material which is browsed would often be either transmitted or made available to the public in order for the browsing to occur. In addition, the material transmitted or made available to the public would often be reproduced in the course of doing so. Consequently, the copyright owner would have rights against the `supplier' of the material and the provision of some protection from copyright infringement for the end user would not `unreasonably prejudice the legitimate interests of the author'.
[30] Copyright owners could acquire further protection by self-help means such as the use of technology to restrict access to material without their permission. These means would be assisted by the implementation of proposals to provide legal protection against the circumvention of technological protection of copyright material.
[31] On the other hand, it could be argued that the normal exploitation of the material by copyright owners requires them to have rights against both suppliers and users. In that event, there is a risk that Australia would be in breach of its obligations under the Berne Convention and, perhaps more importantly, the TRIPs agreement [33] which incorporates the relevant provisions of the Berne Convention. [34]
2.3. Liability of Common Carriers and ISP's
[32] One of the contentious features of the recommendations concerns the liability of common carriers and ISP's. The Discussion Paper recommends that telecommunications companies that act merely as the carrier of material would not be liable for breaches of either the right of transmission or the right of making available to the public. [35] This is consistent with the Treaty in that the Agreed statement concerning Article 8 of the Treaty provides, in part, that:
`It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.'
[33] As acknowledged in the Discussion Paper, the more difficult issue concerns the liability of ISP's. [36] The Discussion Paper proposes that the ISP's not be directly liable for infringement of the rights of transmission or making available to the public `if they do not determine the content of material accessed via their networks'. [37] However, ISP's could be liable for authorising any breaches of those rights. The Discussion Paper proposes that the general law concerning authorisation of breach of copyright be applicable to ISPs in that they should be required to take reasonable measures to avoid infringements when they are aware of the likelihood of an infringing act.
[34] The view was expressed in the Discussion Paper that while the law concerning authorisation is to some extent uncertain because of the need to apply its general principles on a case-by-case basis, that uncertainty gives it the flexibility to deal with new developments. In rejecting the idea of a statutory exception from liability for authorisation for ISP's, the Discussion Paper stated:
`To introduce a statutory exception at the moment would `freeze' the law on this issue with the likelihood that the applicability of any such statutory exception would be rapidly superseded by technological developments. For these reasons, this paper proposes to leave the matter of liability of service providers to principles of authorisation as developed by the courts which are able to adapt the law to new developments.' [38]
[35] Presumably, these comments refer to the possibility of technological advances that would enable ISP's to easily detect unauthorised copyright material being distributed through them.
[36] However, this issue needs to be resolved quickly and, at the very least, ISP's granted relief from actions for direct infringement under present legislation. APRA has requested payment from ISP's on the grounds that their activities infringe the existing right of causing material to be transmitted to subscribers to a diffusion service in respect of musical works for which APRA holds the copyright. [39] This view of the existing legal position has some validity given some comments in the High Court decision in the Telstra case that indicate the right of causing material to be transmitted to subscribers to a diffusion service may be breached even if the operator of the service is not responsible for or involved in selecting the content of the material transmitted by the service. [40]
2.4. Fair Dealing Exceptions and Exceptions for Libraries
[37] Further issues raised in the Discussion Paper are the application of the fair dealing provisions of the Act to the proposed new rights and exceptions for libraries. Again, the Discussion Paper does little more than raise these issues for the purposes of public debate although one possibility that is raised is that of introducing a defence of fair use similar to that existing under legislation in the United States of America.
[38] One school of thought is that copyright in on-line material should not be subject to the same exceptions as those that apply to hard copy material and all use of on-line material should be subject to the exclusive rights of copyright owners. [41] Indeed, there are those who would argue that a defence of fair dealing or fair use in respect of on-line material is already `dead' for a number of reasons. First, technological restraints on access to material mean that copyright owners can, in practice, prevent access to copyright material without payment. Second, recent decisions in the United States of America suggest that fair use is unlikely to be available as a defence where a licensing scheme exists for use of the material and where the alleged fair use interferes with the copyright owner's potential or actual market. [42] In a digital environment, both of these bars to an argument of fair use are likely to exist.
3. The Right of Communication to the Public in the United States of America
[39] Most of these issues have also been the subject of extensive debate in the United States of America. The legislative and judicial responses in that country to these issues will undoubtedly impact on the manner in which they are dealt with in Australia due to the economic power of the United States of America and its particular strength in the area of intellectual property.
[40] Prior to the Diplomatic Convention that adopted the Copyright Treaty and the Phonograms Treaty, the government of the United States of America had a preferred model for legislative change to deal with the implications of digital technology. In particular, its preference was that the activities covered by the proposed rights of transmission and making available to the public be regulated via other rights such as the right of distribution and the right of display.
[41] These are rights that presently exist under copyright legislation in the United States of America and the government approach was to modify these rights, particularly the right of distribution. Hence, the Final Report of the United States Working Group on Intellectual Property Rights entitled `Intellectual Property and the National Information Infrastructure' [43] (`the NII Report') recommended that the law be amended to expressly provide that distribution can take place by way of transmission. `Transmission' in this context is defined broadly and encompasses `making available to the public' as defined in the Discussion Paper. [44]
[42] However, this approach was not adopted in the Copyright Treaty or the Phonograms Treaty. While a right of distribution was adopted, [45] it relates exclusively to the distribution of hard copies rather than material disseminated in electronic form. [46] Instead, the two treaties incorporate a right of communication to the public as the means of dealing with electronic dissemination of copyright material.
[43] As yet, there has been no legislative proposals designed to implement the right of communication adopted by the two treaties. However, the right of communication to the public is already provided under the US legislation via the rights of public performance, display and, arguably, the rights of distribution and reproduction. [47]
[44] Section 101 of the American Copyright Act 1976 as amended defines `performance' of a work as meaning:
`to recite, render, play, dance, or act it , either directly or by means of any device or process'` To `Publicly' perform or display a work means -
...
(2) to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.'
`To `display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process ...'
[45] The result of these provisions is that actions such as placing a work on a WWW site would constitute a performance and a display of that work. [48] Whether the right of distribution or the right of reproduction contained in s 106 of the US legislation are infringed would depend on a number of matters. In particular, it would depend on whether a `copy' includes those temporary copies made during the process of viewing material. As previously mentioned, American case law and commentary on that case law suggests that such temporary copies are copies for the purposes of the American copyright legislation. [49] Consequently, the person who places material on a website which is subsequently viewed may well be in breach of the right of reproduction every time the material is viewed. Alternatively, if it were not a breach of the right of reproduction by the person placing the material on the site, it would almost certainly constitute contributory infringement by the person placing the material on the website as the end user would be reproducing the copyright work.
[46] Similarly, if temporary copies are copies for copyright purposes, the distribution right may be breached as the act of placing the material on a website may well be interpreted as distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending depending on the financial relationship between the distributor and the person receiving the material.
[47] While no legislation has yet been implemented or proposed to alter the present manner in which the right of communication to the public is implemented, a number of pieces of legislation have been proposed by individual members of Congress to deal with various other aspects of the two treaties, including some of the issues left unresolved by the Discussion Paper that have already been mentioned above. These proposals are discussed below.
3.1. Liability of ISP's
[48] The On-Line Copyright Infringement Liability Limitation Bill [50] seeks to significantly limit the potential liability of ISP's. Section 512 of the Bill would exempt a person from liability for direct infringement of copyright, based solely on the intermediate storage and transmission of material over that provider's system or network, if:
`A the transmission was initiated by another person;B the storage and transmission is carried out through an automatic technological process, without any selection of that material by the provider; and
C any copy made of the material is not retained longer than necessary for the purpose of carrying out that transmission.'
[49] An ISP may still be liable for contributory infringement in respect of the situation described in s 512 but, in those circumstances, they would usually only be liable to injunctive relief. [51] Monetary relief would not be available if the provider did not know and was not aware of information indicating that the material was infringing and did not receive a financial benefit directly attributable to the infringing activity. [52]
[50] The thrust of this legislation is significantly different in two major respects from the proposals in the Discussion Paper in that the usual activities of ISP's may leave them open to an action based on authorisation. First, the test for contributory infringement under American law requires actual knowledge on the part of the defendant of the direct infringement [53] and, second, liability is restricted to injunctive relief.
[51] The Digital Copyright Clarification and Technology Education Bill of 1997 [54] appears to go even further by exempting providers of electronic communications networks services or facilities from either direct, vicarious or contributory infringement if the transmission of material over the system or network on behalf of a user does not involve the generation or material alteration of content by the person. [55]
3.2. Fair Use
[52] Both the Digital Copyright Clarification and Technology Education Bill of 1997 and the Digital Era Copyright Enhancement Bill of 1997 [56] deal with and contain similar provisions concerning fair use, exemptions for libraries and certain educational uses of material in digital form. For example, they both provide that use by way of transmission can be fair use and that in determining what is `fair use', no independent weight is to be given to the means by which the material has been previously performed, displayed or distributed by the author or the use of technological measures by the author to restrict access to the material. Hence, if the copyright owner already has a licensing scheme in place together with technological restrictions on access to the material this will not, of itself, indicate that an unauthorised use will not be a fair use. The provision is a legislative attempt to by-pass some aspects of the Texaco decision [57] which is widely seen as having restricted the defence of fair use.
[53] Both bills also create exceptions for libraries by permitting them to make and retain three copies of material in digital form. This is an exception previously recommended in the NII Report. [58]
[54] Both bills also grant exemptions in respect of transmission for the purposes of distance education. These provisions permit performance, display or distribution by way of transmission as part of the teaching of government and non-profit educational institutions. In effect, educational institutions would only have to pay for the original reproduction of the teaching material in digital form. Thereafter, provision of material in digital form to students would be free although students would not be entitled to download that material.
3.3. Circumventing Technological Protection and Protection of Rights Management Information
[55] While both the bills mentioned above also deal with circumventing technological protection and protection of rights management information, the WIPO Copyright Treaties Implementation Bill of 1997 is the legislation that has received the greatest consideration by Congress. Its provisions provide significant protection against circumvention of technological protection measures and it forbids the manufacture, importation or trafficking in devices that are primarily designed for the purpose of circumventing technological protection measures.
[56] The WIPO Copyright Treaties Implementation Bill also prohibits interference with the integrity of copyright management information by knowingly providing false copyright management information or distributing false copyright management information. It also prohibits the distribution or public performance of copyright material by a person who knows that the copyright management information relating to that material has been removed or altered without the authority of the author.
[57] These provisions basically reflect the requirements in the Copyright Treaty and the Phonograms Treaty for preventing circumvention of technological protection and protection of copyright management information. They are very similar to the proposals along the same lines made in the Discussion Paper.
4. Implications for Australia of the American Approach
[58] While the various pieces of legislation before Congress are, in part, responses to the lobbying of various interest groups and there is no clear picture of how American copyright law will ultimately respond to all these issues, there are still some clear implications for Australia.
4.1 Terminology Implications
[59] One of the main points to bear in mind is that the American approach to this issue can lead to a great deal of confusion because American copyright law uses the same terminology but applies different meanings to that terminology and different rights are applicable to the same acts. For example, `transmission' has a broader meaning than that recommended for Australian law by the Discussion Paper. What is intended by the Discussion Paper to be embraced by the rights of transmission and making available to the public is embraced in the United States of America by the right of public display, the right of public performance and, possibly, the rights of distribution and reproduction. In contrast, there is no right of public display in the Australian legislation and the right of public performance is not relevant to acts coming within the existing rights of broadcasting and transmission to subscribers to a diffusion service. [59] In addition, existing controls over distribution such as the parallel importing provisions [60] and the rental right [61] do not relate to material transmitted or made available to the public and any new right of distribution would apply to `hard-copy material'. Further, the proposed exception for temporary electronic copies would significantly reduce the application of the reproduction right in this area.
[60] These differences have considerable implications for any agreement concerning American and Australian copyright law because such agreements need to recognise these differences. For example, it may be necessary to obtain the Australian rights of transmission and making available to the public if the Discussion Paper's recommendations are implemented, together with the American rights of public display, public performance, distribution and reproduction. On the other hand, the American rights of public performance, display, distribution and reproduction encompass a wide range of activities that go well beyond on-line dealings with copyright materials. Consequently, any licence granted in respect of those exclusive rights may need to be carefully worded to ensure it does not grant any rights other than those intended to be granted.
4.2 Liability of ISP's
[61] The generous exemptions from copyright liability proposed for ISP's in the Digital Copyright Clarification and Technology Education Bill of 1997 and the On-Line Copyright Infringement Liability Limitation Bill demonstrate a clear intent to place the onus on copyright owners to protect their material rather than placing the onus on ISP's to be pro-active in protecting that material. The proposal to restrict liability to injunctive relief where there has been no active involvement in direct infringement is something that should be considered as an alternative to the Discussion Paper's proposal to leave ISP's open to liability for authorisation and all the associated remedies, including damages.
4.3 Fair Use
[62] Both the Digital Era Copyright Enhancement Bill and the Digital Copyright Clarification and Technology Education Bill demonstrate a determination to keep fair use `alive' as a defence to copyright infringement of digital material. This in turn suggests that Australia should seriously consider introducing the broad defence of `fair use' and ensuring that it has application to digital uses of copyright material. In addition, some concessions to libraries and new means of distance teaching should be made that acknowledge the social need to ensure access to copyright material for educational purposes.
4.4 The Reform Process in Australia
[63] The wide range of issues addressed in the Discussion Paper and by American responses to the copyright issues raised by digital technology, demonstrate the complexity and difficulty of reform in this area. For that reason, it is important that the process of reform be exhaustive, well-structured, effective and reflect the national interest while complying with international obligations. It is therefore somewhat curious that the present process of implementing reform is being channelled through different bodies. The Attorney-General's Department has issued the Discussion Paper and will be issuing other issues papers while at the same time the Copyright Law Review Committee has responsibility for an overhaul of all copyright legislation. Added to that, in the not too distant past, the Copyright Convergence Group was formed to address many of these issues. One wonders whether a country of only 18 million people can afford such a diverse approach to reforming such an important area of law. Perhaps a more efficient use of resources would be to channel those resources into one reform body with appropriate support to be able to receive and encourage public submissions and to undertake an analysis of issues such as those mentioned in this article. For example, will there be sufficient qualified people and resources devoted to considering reform proposals such as those contained in the American bills discussed above? It can only be hoped that the present diverse approach will not lead to insufficiently informed decisions that fail to take account of and consider all possible options.
5. Conclusion
[64] In any event, significant changes to copyright law as a consequence of digital technology are inevitable. The variety of proposals on issues such as fair use and the liability of ISP's demonstrates that the form of those changes is not inevitable. In addition, while international treaty obligations impose some constraints, there still appears to be considerable scope for significant exemptions. These must be considered carefully in order to achieve an appropriate balance of the rights and obligations of not only copyright owners and copyright users but also of those who facilitate the dissemination of copyright material such as ISP's, libraries and educational institutions. That balance will have a profound effect on who will have access to information in an information age that will, in turn, have a substantial impact on distribution of wealth within society.
[65] Given that Australia is a net importer of copyright material, it should be slow to adopt a position that unduly favours copyright owners. It may be difficult to prevent such a situation arising as there is an inevitable tendency for copyright owners to be over-represented in the reform process. This is due, in part, to the extent of their interests in comparison to those of individual users and the consequent investment of resources in lobbying for strong copyright protection. There is therefore all the more reason for a thorough, objective analysis of overseas developments such as those contained in the American legislation discussed above.
[66] However, such an analysis needs to go beyond mere imitation of overseas proposals. For example, the Discussion Paper's proposal to leave ISP's open to liability for authorisation is virtually identical to the approach taken in the NII Report in 1995. [62] Yet that American position has softened considerably judging by the legislation presently before Congress. Perhaps the best approach may be to wait and see what is the final legislative outcome in copyright exporting countries such as the United States of America. Thereafter, that legislation should be used not so much as a model but as the upper limit for copyright protection, with consideration being given to providing protection at a lower level than that. In this way, the Australian reform process can obtain the maximum benefit from overseas debate and consideration of copyright issues.
2 Justices Dawson, Gaudron and Kirby found that the right had been breached Justices Toohey and McHugh found it had not been breached. Back to Text.
3 [1997] HCA 41; (1997) 146 ALR 649 at 653. Back to Text.
5 The Discussion Paper at 28. Back to Text.
7 Ibid at 29-30. Back to Text.
9 Ibid at 29-30. Back to Text.
10 See Report of the CCG: Highways to Change: Copyright in the new Communications Environment, (August, 1994). Back to Text.
12 Article 12(2) of the Copyright Treaty. Back to Text.
13 Article 12(1)(i) of the Copyright Treaty. Back to Text.
14 Article 12(1)(ii) of the Copyright Treaty. Back to Text.
15 The Discussion Paper at 43. Back to Text.
17 Ibid at 44-45. Back to Text.
18 Report of the CCG: Highways to Change: Copyright in the new Communications Environment, (August, 1994) at 10. Back to Text.
19 Telstra v APRA [1997] HCA 41; (1997) 71 ALJR 1312, 146 ALR 649. Back to Text.
20 (197) [1997] HCA 41; 146 ALR 649 at 656 per Dawson and Gaudron JJ. Back to Text.
23 Ibid at 658-659. Back to Text.
24 Ibid at 657 citing Green LJ in Jennings v Stephens [1936] Ch 469 at 485. Back to Text.
26 The Discussion Paper at 41. Back to Text.
28 It should be remembered that the right of reproduction may well be breached in the course of such activities. Back to Text.
30 Advanced Computer Services of Michigan Inc v MAI Systems Corp 845 F Supp 356, 363 (ED VA 1994) and the Final Report of the United States Working Group on Intellectual Property Rights: Intellectual Property and the National Information Infrastructure at 91. Back to Text.
31 E-mail from L Kurtz to cni-copyright list dated 4th April, 1997. A copy of the e-mail is held by the author. Back to Text.
32 See Vinje, T `The New WIPO Copyright Treaty: A Happy Result in Geneva' (1997) 5 EIPR 230 Back to Text.
33 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Back to Text.
34 Article 9 of TRIPS requires members to comply with Articles 1-21 of the Berne Convention. Back to Text.
35 The Discussion Paper at 37. Back to Text.
40 [1997] HCA 41; (1997) 146 ALR 649 at 653 per Dawson and Gaudron JJ. Back to Text.
41 The Discussion Paper at 78. Back to Text.
42 Eg American Geophysical Union v Texaco Inc [1995] USCA2 843; 60 F 3d 913 (2nd Cir, 1994) at 926-931. Back to Text.
43 See Davison, M `Some Implications of the US Working Group's Report on Intellectual Property and the National Information Infrastructure' (1995) Journal of Law and Information Science 228 for a discussion of this report. Back to Text.
44 Section 101 of the American Copyright Act 1976 as amended provides that to `transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent'. Back to Text.
45 Article 6 of the Copyright Treaty and Articles 8 and 12 of the Phonograms Treaty. Back to Text.
46 See the Agreed Statement Concerning Articles 6 and 7 of the Copyright Treaty, WIPO Document CRNR/DC/96, December 23, 1996. Back to Text.
47 These rights are provided to authors by Section 106 of the American Copyright Act 1976 as amended. Back to Text.
48 The Act specifically provides that broadcasting and transmitting to a diffusion service do not constitute a performance within the meaning of that legislation. Hence the right of public performance is not relevant in the context under Australian legislation. Back to Text.
49 See footnote 27 above. Back to Text.
50 HR 3209. This Bill has now been linked to the WIPO Copyright Treaties Implementation Act HR 2281. Back to Text.
51 Section 512(2) Back to Text.
52 Section 512(3) Back to Text.
53 See Nimmer on Copyright, Vol 3 12.04 [A] [2] [a] Matthew Berder, New York 1997 Back to Text.
54 Section 1146. Back to Text.
55 The Digital Copyright Clarification and Technology Education Bill of 1997 also provides protection for operators of networks or systems in respect of material residing on their system or network if they did not initiate the placement of the material on the system or network, determine the content of the material placed there and did not contract for placement of the specific material on the system. This provides considerable protection for bulletin board operators and co-ordinators of e-mail discussion groups. Back to Text.
57 American Geophysical Union v Texaco Inc [1995] USCA2 843; 60 F 3d 913 (2nd Cir 1994). Back to Text.
58 Final Report of the United States Working Group on Intellectual Property Rights entitled `Intellectual Property and the National Information Infrastructure' at 330. Back to Text.
59 Presumably new Australian legislation introducing the rights of transmission and making available to the public would also exclude the right of public performance from being applied to acts constituting the exercise of either of those new rights in the same way that s 27 of the Act limits the application of the right of public performance in respect of broadcasting and transmitting to subscribers to a diffusion service. Back to Text.
60 See eg ss 37 and 38 of the Act. Back to Text.
61 See s31(1)(c) and (d) of the Act which confer rights to enter into a commercial rental arrangement in respect of literary work, computer programs, musical works and dramatic works. Back to Text.
62 NII Report at 175-176. Back to Text.
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