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Australia's Copyright Act 1968 (Cth) ('the Act') makes several exceptions to the exclusive rights of copyright owners. The effect of these exceptions is to confer an immunity from legal liability for acts which would otherwise constitute an infringement of copyright. Some of the statutory exceptions relate specifically to the use of copyright material by agents of government. Other exceptions are of more general application, though they may be relied upon by agents of government in circumstances not covered by the more specific exceptions.
This article examines not merely the statutory exceptions which relate to and bear upon the acts of agents and organs of government. It examines also the protections against liability for infringement of copyright which are afforded by the laws of parliamentary privilege, legislation concerning printing and publication of parliamentary papers, and freedom of information legislation. Some constitutional issues are also considered.
Section 7 of the Act states that the Act binds the Crown in all of its capacities in Australia. This makes it clear that the Crown may incur liability for infringement of copyright unless it can rely on one or more of the protective provisions in the Act. One such protective provision is s 183. This covers use of copyright works and other subject matter for the services of the Crown.[1] For the purposes of s 183 the Crown includes not only the Crown in right of the Commonwealth but also the Crown in right of the States, the Australian Capital Territory, the Northern Territory and Norfolk Island.[2]
There can be little doubt that copyright material would be used for the services of the Crown if it is used by Ministers and officers of their departments in the course of carrying out their governmental functions. Use of copyright material by royal commissions and like bodies established by the executive would also be covered,[3] likewise use of copyright material by statutory bodies whose function is to provide advice or render services to Ministers and departments of state. Statutory law reform commissions are an example. The matters into which they are to inquire and on which they are required to report are usually determined by a Minister of the Crown.
Statutory bodies can clearly rely on the protection afforded by s 183 if they are agents of the Crown and if their use of copyright material is describable as being for the services of the Crown.[4] The question of what is an instrumentality of the Crown has been considered by courts, principally in the context of who and what come within 'the shield of the Crown' for the purposes of the common law presumption that the Crown is not bound by statutes.[5] The tests that have been developed for this purpose have been ones which have tended to limit the bodies which are manifestations of the Crown. The primary test is whether the body is subject to direction or control by a political executive in the performance of its main functions. The Australian Broadcasting Corporation enjoys considerable independence in the performance of its functions. It is not an agent of the Crown and its use of copyright material for its purposes has been held not to be for the services of the Crown, and thus not protected by s 183 of the Act.[6]
The immunity conferred by s 183 is not, however, limited to agents of the Crown. It extends to the use of copyright material for the services of the Crown by persons who have been authorised in writing by an agent of the Crown.[7] That authorisation may be given before or after the use is made[8] but must be approved by the relevant Attorney-General.[9]
The use of copyright material under s 183 is subject to two obligations. The first is that unless it appears to Commonwealth or State that it would be 'contrary to the public interest to do so', the Commonwealth or the State which has copied copyright material, or authorised another to do so, shall, as soon as possible after that act, inform the copyright owner of the use, and provide that owner with any information he or she may reasonably require.[10] Secondly it has been provided that either before or after the 'act is done', the 'terms' under which it is done must be 'agreed between' the Crown 'and the owner of the copyright'. In default of such agreement, the terms are to be fixed by the Copyright Tribunal.[11]
It is thus made clear that agents of the Crown are obliged to pay compensation for their expropriations, by statutory licence, of copyright. The requirement that the statutory licensees notify copyright owners of their acts that might otherwise be in breach of copyright is obviously meant to ensure that the owners are made aware of their right to be compensated. In the absence of any such requirement, copyright owners may not even be aware of the fact that their rights have been affected. The owner of copyright in a book could hardly be expected to know that whole chapters of the book had been photocopied within, say, a government department for use by officers of the department.
Sections 183A to 183E of the Act contain detailed provisions on governmental copying of copyright material where there is a 'relevant collecting society' which receives and distributes remuneration payable to copyright owners. These provisions do not detract from the rights conferred on copyright owners by s 183 of the Act to be compensated for use of copyright material for the services of the Crown. They do, however, make it possible for the right of reproduction[12] to be enforced otherwise than in accordance with the procedures prescribed by s 183. In practice, most Crown copying of copyright material occurs using the provisions of these collecting schemes. Copyright Agency Limited (CAL), for example, is the copyright collecting society declared by the Copyright Tribunal to administer the statutory licence for copying literary, musical, artistic and musical works (other than material included in sound recordings and films) by Commonwealth, State and Territory government departments and agencies.[13] Each year it collects millions of dollars in respect of government copying on behalf of copyright owners.
All Australian parliaments have, within their precincts, libraries designed to assist their members in the discharge of their functions as parliamentarians. The holdings of many of these libraries are substantial; equally the number of staff employed to manage and service the libraries, and to help Members of Parliament ('MPs') to make use of a library's services. The services may include reproduction and communication[14] of copyright material.
In 1984 the Act was amended to create further exceptions to the general rules regarding infringement of copyright.[15] The amendments introduced s 48A which provides that:
[t]he copyright in a work is not infringed by anything done, for the sole purpose of assisting a person who is a member of a Parliament in the performance of the person's duties as such a member, by an authorised officer of a library, being a library the principal purpose of which is to provide library services for members of that Parliament.
For the purposes of s 48A, works cover literary, dramatic, musical and artistic works (s 10(1)). Section 104A, which is similar to s 48A, deals with uses made by parliamentary libraries of 'subject matter other than works' such as sound recordings, cinematograph films, television and radio broadcasts. The protection afforded by ss 48A and 104A is not, it should be noted, limited to reproduction and communication of the materials to which the sections relate, but applies to 'anything done' in relation to those materials. Neither the explanatory memorandum that accompanied the Bill for the amending Act of 1984[16] nor the Minister's second reading speech in the House of Representatives[17] explained in any detail why ss 48A and 104A were considered desirable. The explanatory memorandum suggested that there were doubts about the protection afforded to officers of parliamentary libraries when they reproduced copyright material for use by MPs. In his second reading speech the Minister merely stated that the amendments proposed followed the recommendations that the Copyright Law Committee had made in 1976 in its Report on Reprographic Reproduction. In section 3 of their Report, the Committee made a number of recommendations in relation to copying by libraries for their users, but it made no recommendations in the form of ss 48A and 104A.
Section 50 of the Act provides protection against liability for infringement of copyright in cases where other libraries (except those run for profit[18]) supply to parliamentary libraries copies of published copyright works held by them, and the copies are supplied for the purpose of assisting MPs in the performance of their duties as members. The protection so accorded extends to both the supplier of the copies and those to whom copies are supplied. It extends to the reproduction or communication of the whole or part of a published work, for example, a book or an article in a periodical publication.[19]
There are several points to be made about the provisions relating to parliamentary libraries:
(a) They apply to all Australian parliamentary libraries;[20]
(b) While the provisions operate only when the purpose of the conduct is to assist MPs in the performance of their duties as members, they may be activated not only when an MP (or his or her agent) asks a parliamentary library to supply a copy of copyright material, but also when a parliamentary library initiates reproduction of copyright material for distribution to MPs or to augment the library's collection;[21]
(c) The exemptions from infringement afforded by ss 48A and 104A of the Act are limited to cases in which the acts of the relevant parliamentary library are to assist MPs whom the library serves. Hence, these exemptions would not apply if, say, a member of Parliament of Victoria were to seek to obtain a copy of copyright material held in the Commonwealth's parliamentary library or in the parliamentary library of another State;[22]
(d) The duties of MPs include not only participation in parliamentary proceedings but also the giving of advice to constituents and making representations on their behalf, for example, representations to a Minister.
It is to be noted that the provisions in the Act to do with reproduction and communication of copyright works by or on behalf of parliamentary libraries do not include provisions of the kind found in s 183 of the Act regarding rights of copyright owners to be compensated for acts which, but for statutory exceptions, would constitute infringements of copyright.
We are not aware of the extent to which copyright material is copied by or on behalf of parliamentary libraries for the purpose of assisting MPs in the performance of their duties as members. The statutory licence which has been given to parliamentary libraries (and some other libraries) to make copies of such material for this purpose undoubtedly facilitates the performance of parliamentary functions, just as s 183 of the Act facilitates performance of the work of the central agencies of executive government. But the provisions in the Act that grant exemptions to parliamentary libraries from liability for infringement of copyright are open to abuse. The provisions do not oblige the libraries to pay any remuneration to copyright owners. Nor do they include qualifications of the kind found in those other provisions in the Act which relate to fair dealing with copyright material. Section 48A of the Act, for example, would make it possible for a parliamentary library to copy the whole or a substantial part of a recently published book, copies of which are readily obtainable elsewhere at an ordinary commercial price. The library may have purchased a copy of the book, but an MP may have requested that the library supply him or her with a photocopy of the whole or a substantial part of it. One wonders whether an authorised library officer would be prepared to refuse to accede to such a request on the ground that, in the officer's opinion, the photocopy would not be produced and supplied for the sole purpose of assisting the MP in the performance of his or her duties as a member. Even if the library officer was satisfied that the copy requested was being sought for the sole purpose of assisting the MP in the performance of his or her duties as a member, the officer might be reluctant to accede to the request if the book was one which could be borrowed from the library, or was readily available for purchase or had been borrowed by the library under inter-library loan arrangements.[23] The Act certainly does not impose any obligations on officers of parliamentary libraries to accede to requests made by MPs for reproduction and supply of copies of copyright material.
If agents of government are sued for infringement of copyright, but are not able to rely on any of the statutory exceptions mentioned above, they may nevertheless rely on the provisions in the Act that allow for fair dealing with copyright material. The circumstances in which the fair dealing exceptions operate are limited but they include cases in which copyright material is reproduced for research or study.[24]
Some dealings by MPs and their personal assistants may be protected by the fair dealing provisions. In the performance of their duties MPs may undertake study and research. The tasks they assign to their assistants may also involve study and research. For the purposes of that study and research a good deal of copyright material may be reproduced, for example, articles in a number of periodical publications, or substantial parts of books. Whether the copying amounts to fair dealing will depend in part on the quantity of the copyright material that is reproduced, and 'the possibility of obtaining the [copyright] work within a reasonable time at an ordinary commercial price.'[25] An MP could not be said to have dealt fairly with a copyright work if he or she photocopied nearly all of a recently published book which could have been purchased within a short time from a bookstore or other supplier.
An act of fair dealing may also be one for the services of the Crown. For example, an officer of a government department may have dealt fairly with copyright material by photocopying an article in a periodical publication for the purposes of the research required of him or her in the course of official duties. In such a case, the fair dealing exception will probably apply rather than the exception created by s 183 of the Act, and its attendant obligation to pay compensation.
The fair dealing provisions, it should be added, do not cover cases in which the copyright material has been reproduced for others. They would not, for example, protect an MP who, having reproduced copyright material for the purposes of his or her study or research, then arranged for further copies of the material to be made for distribution to other MPs or to electors.
Under the common law, judges do not incur any liability for what they say or do in the course of exercising their judicial functions.[26] This protection has been extended to members of various tribunals, sometimes by statute. Section 43 of the Act gives partial expression to the common law immunity. It provides that copyright in various kinds of works, including literary works, 'is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding'. (Section 104 affords like protection in respect of subject matter other than works listed in s 43.) Section 10(1) of the Act defines a judicial proceeding to mean 'a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath'. These provisions apply to all Australian courts and tribunals and they would seem to apply even if a proceeding does not involve exercise of judicial power in the constitutional sense of that term.
The protections afforded by ss 43 and 104 clearly cover copyright material which is reproduced in reasons for judicial or tribunal decisions, including material the copyright in which is owned by the Crown. But the protections extend somewhat further and are not confined to members of courts and tribunals. So long as the act which would otherwise be an infringement of copyright is for the purpose of a judicial proceeding, the act is protected. So also are the acts of those who prepare reports of judicial proceedings.
The actions protected under ss 43 and 104 of the Act will not however extend to actions which cannot be linked to judicial proceedings: for example photocopying of copyright material by or on behalf of a judge for the purposes of a book, an essay or a speech to be delivered on a public occasion. The protections, if any, afforded to acts for these purposes must be found in other provisions in the Act, notably in the provisions on fair dealing and the reproduction and communication of copyright material by libraries.[27]
The definition of judicial proceedings in s 10(1) of the Act is sufficiently wide to cover proceedings before royal commissions, for, by statute, these bodies are ones which have 'power to hear, receive and examine evidence on oath'. But royal commissions are also Crown agents. A question may therefore arise as to whether s 183 of the Act, and its attendant obligation to pay compensation, applies when copyright material is reproduced for the purpose of proceedings before a royal commission. The express exceptions granted under ss 43 and 104 make it probable that these are the controlling provisions.
Section 182A of the Act allows single copies to be made of various materials in which the copyright is owned by the Crown, for example statutes and subordinate legislation made thereunder. Anyone may make such copies and do so for any purpose. This exemption may therefore be available when a fair dealing exemption is not.
What is generally recognised as the most important of all of those special rights and immunities described collectively as parliamentary privileges is that declared in Article 9 of the English Bill of Rights 1689.[28] Rendered in modern English, Article 9 provides that:
The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
This provision applies in all Australian polities either by statute or as a matter of common law.[29]
The effect of Article 9 is that MPs and other participants in parliamentary proceedings (such as witnesses appearing before a House or a parliamentary committee) do not incur any legal liability for what they say or do in the course of parliamentary proceedings. This principle is recognised to be one of such a fundamental character that the immunities it confers cannot be abridged except by clear statutory enactment. And in Australia there may well be constitutional limitations on the capacity of legislatures to abridge the protections which Article 9 confers. (These limitations are considered later in this article.) There is certainly nothing in the Act that indicates a clear intention to affect the ambit of the protections afforded by the laws of parliamentary privilege. Those protections must therefore be regarded as additional to those accorded by the Act by way of exceptions to the exclusive rights of copyright owners.
The extent to which Article 9 of the Bill of Rights 1689 affords protection against liability for infringement of copyright is somewhat uncertain. The uncertainty arises mainly in relation to the question of what are to be regarded as proceedings in a parliament. There can, however, be little doubt that Article 9 affords absolute protection against liability in the following situations:
Some Australian legislatures have enacted provisions to amplify the meaning of the term 'proceedings in Parliament' for the purposes of Article 9 of the Bill of Rights 1689. The model is that of s 16(2) of the Parliamentary Privileges Act 1987 (Cth). It reads as follows:
For the purposes of the provisions of Article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, "proceedings in Parliament" means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing includes:
This subsection (and its equivalents in other statutes[30]) may have extended the range of activities which are to be regarded as proceedings in Parliament. If it does have this effect, the protections accorded by Article 9 of the Bill of Rights 1689 will vary from one Australian jurisdiction to another. Certainly it is by no means clear that Article 9, standing alone, gives protection in respect of the preparation of documents 'for the purposes of or incidental to the transacting of' parliamentary business—for example the preparation of notes for a speech to be delivered in a parliament, or for a reply to a question which has been asked in a parliament. Notes of these kinds could include reproduction of copyright material.
In O'Chee v Rowley[31] Queensland's Court of Appeal held that s 16 (2)(c) of the Parliamentary Privileges Act 1987 (Cth) covers documents which have been supplied to a federal MP and which the member has chosen to retain for the purpose of transacting parliamentary business. Those documents could include copies of copyright material. If the MP to whom the copies have been sent chooses to retain them for the purposes of parliamentary business, the person who has sent the copies would, presumably, be able to rely on s 16 (2)(c) in defence of an action for infringement of copyright. Equally the MP who had received the copies, and who had arranged for further copies to be made, might rely on s 16 (2)(c) in defence of such an action. The defence could not, however, be sustained in the absence of proof that the further copies had been made 'for the purposes of or incidental to the transacting' of parliamentary business.
The protections accorded by Article 9 of the Bill of Rights 1689 (and the statutory embellishments upon it) may not, however, extend to the uses which have been made of copyright material in the following circumstances:
MPs may, undoubtedly, be enabled to discharge their functions by reason of the special provisions in the Act which pertain to parliamentary libraries and the officers of those libraries.[32] Those special provisions do not, however, extend to the uses which MPs may wish to make of reproductions of copyright material supplied to them by officers of the parliamentary libraries.
MPs, like anyone else, may rely on the provisions in the Act on fair dealing with copyright material.
Following the decision of England's Court of Queen's Bench in 1840 in the case of Stockdale v Hansard,[33] the United Kingdom Parliament enacted the Parliamentary Papers Act 1840 3 & 4 Vict, c 9. The Court of Queen's Bench had previously held that the privileges of the House of Commons did not extend to persons, such as the firm of Hansard, who had been authorised or ordered by the House to publish papers. The Act of 1840 was designed to give those who printed or published material by authority or order of either House of the Parliament absolute protection against liability for anything communicated in the relevant papers. The provisions of the United Kingdom Act have been replicated, substantially, in Australian statutes.[34]
The legislation on parliamentary papers is expressed in very general terms, which, on their face, afford protection to the authorised publishers against any form of legal liability. Those publishers may be private or governmental publishing houses. Standing rules of a particular House of a parliament may provide continuing authority to a government publishing house to print and publish material tabled before the House of the parliament.
The papers accorded protection under parliamentary papers legislation may include copyright material, the reproduction of which would ordinarily constitute an infringement of someone's copyright. There is, however, nothing in the Act that expressly modifies the operation of the legislation on parliamentary papers.
It could be argued that to the extent that it detracts from rights conferred by the federal Act, the State legislation is inconsistent with the federal Act and is, by force of s 109 of the federal Constitution,[35] overridden by the federal statute.[36] Certainly s 183 of the Act will give no protection to those who reproduce copyright material by order or authority of a House of a State Parliament, since their act could not be said to be for the service of the Crown, even if the reproduction was undertaken by a government publishing house.[37]
The protections afforded by the State legislation against liability for infringement of copyright may nonetheless continue to operate because of limitations on federal legislative powers. The federal Parliament cannot, the High Court has held, use its legislative powers in ways that impair the capacity of State governments to perform their constitutional functions.[38] That capacity may well be impaired if federal legislation inhibits the power of State Houses of Parliament to determine what material shall be printed and published by their order or authority and under the protections accorded by the State's legislation on parliamentary papers. Publication of parliamentary papers is, after all, a means of rendering parliaments accountable to electors.
It may also be argued that the legislation on parliamentary papers (including the Commonwealth's) is protected by the implied constitutional freedom of political communication.[39] This implied freedom inhibits the powers of all Australian legislatures. In addition it controls Australian common law.[40] The freedom is not an absolute one and it may be constrained by legislation for the protection of various public interests. Provisions of the Act may, in some circumstances, operate to restrict freedom of political communication. While there may be nothing in this Act which could be held to the contrary to the implied freedom, it must surely be construed in the light of that freedom. Publication and dissemination of parliamentary papers must be regarded as a form of political communication. To subject publishers of such papers to a liability for infringement of copyright could be regarded as an illegitimate constraint on the implied freedom.
Uncertainties about the impact of the Act on the legislation regarding parliamentary papers could be resolved by inclusion within the Act of a provision which makes it clear that the legislation is not affected.
Australian freedom of information legislation gives members of the public legally enforceable rights of access to much of the information in documentary form held by many agencies of government.[41]
Under this legislation access may be provided by supply of copies of the material which has been requested. Such material will usually be the subject of copyright: if not that of the Crown or the government agency which holds the material, then that of someone else. Section 91(1) of the Freedom of Information Act 1982 (Cth) makes it clear that 'no action for ... infringement of copyright lies against the Commonwealth, an agency [to which the Act applies], a [federal] Minister or an officer by reason of the authorizing or giving of access' to a document 'when the Act requires access to be given, or where access was authorized by a Minister, or by an officer having authority ... to make decisions in respect of requests, in the bona fide belief that the access was required by ... [the] Act to be given'.
Sections 91(2) and 91(2A) of the Freedom of Information Act 1982 (Cth), however, make it clear that the protection against actions for infringement of copyright does not extend to persons to whom documents have been supplied or shown under the Act.
Section 91 operates to modify the Copyright Act 1968 (Cth), but it applies only to the acts of federal government agencies which are subject to the Act. It affords no protection to officers of State agencies which have provided access to documents pursuant to provisions in State freedom of information legislation. State legislation contains provisions aimed at protecting officers against some liabilities they might otherwise incur in consequence of their provision of access to documents,[42] but the protective provisions do not expressly extend to acts that might involve infringement of copyright. The framers of the State legislation have, apparently, assumed that it is not open to State Parliaments to enact legislation to confer protection against that form of liability.
On the other hand, the State legislation contains provisions which afford protection to officials against infringement of copyright. Section 23(3)(c) of Victoria's Freedom of Information Act 1982, for example, provides that if the form of access to a document requested by a person:
would involve an infringement of copyright subsisting in a person other than the State, or, in the case of an application to a [local government] council, other than the council—access in that form may be refused and access given in another form.
A provision such as s 23(3)(c) clearly does not authorise supply of copies of documents in breach of the Act, except when copyright in the documents subsists in the State or in a council. If State officers choose to supply copies of documents in which copyright subsists in neither the State nor a council, they may therefore be sued for infringement of copyright.
Were a State officer to be sued for infringement of copyright by reason of his or her having supplied copies of copyright material in response to a request for access under the State's legislation, the officer might claim that the provisions in the Act on which the plaintiff relies do not, and could not, apply to him or her by reason of the constitutional principle that federal legislative powers cannot be used to impair the capacity of State governments to perform their functions. We doubt whether a court would accept such a contention. While freedom of information Acts may be regarded as a means of rendering governmental agencies accountable to the public for their activities, it cannot be said that the capacity of State governments to perform their functions is significantly impaired by the absence of such legislation.
It could be argued that supply to members of the public of copies of documents in the possession of government agencies is a form of political communication and therefore protected by the implied constitutional freedom of political communication. But, as has already been pointed out, that freedom is not absolute. The High Court has made it clear that the freedom may be qualified by laws for the protection of various public interests, including interests of individuals. While the laws of copyright may operate to inhibit freedom of political communication, the interests sought to be protected by those laws would undoubtedly be recognised as ones of sufficient importance to justify the imposition of legal constraints on the uses which may be made of copyright material, whether by agencies of government or by private persons. Furthermore it cannot be assumed that the High Court would accept the proposition that provision of information, pursuant to freedom of information legislation, falls within the scope of the constitutional guarantee, even though the legislation may be regarded as promoting accountability in the conduct of affairs of government.
As has already been mentioned, copies of material which are supplied pursuant to freedom of information legislation may be copies of material which is, under the Act, the subject of Crown copyright. A question could therefore arise as to whether freedom of information legislation which authorises reproduction of such material derogates from the right of the Crown to sue for infringement of its copyright. It would surely be odd if the Crown were able to seek judicial remedy for infringement of its copyright when, under legislation to which it has assented, the act alleged to be an infringement of copyright has been authorised. The enactment of a provision such as section 23(3)(c) of Victoria's Freedom of Information Act 1982 (reproduced above) should be construed as a licence by the State to reproduce material in which the State holds copyright.
The federal Parliament undoubtedly has power to enact legislation which extends the exemptions accorded by the Act against liability for infringement of copyright. It may therefore extend those exemptions to acts which are authorised under State freedom of information legislation.
Under Australian law, rights of copyright, including the rights of copyright owners to seek judicial remedies for infringement of their copyright, arise almost entirely under statutory provisions, and notably under the provisions of the Copyright Act 1968 (Cth).[43] This Act has been enacted by the federal Parliament pursuant to s 51 (xviii) of the federal Constitution, though some of its provisions rest on s 51(v) or s 51(xxix). Section 51(xviii) grants the Parliament power to make laws with respect to 'copyrights, patents of inventions and designs, and trade marks'. Section 51(v) authorises the making of laws with respect to 'postal, telegraphic, telephonic, and other like services'. Section 51(xxix) authorises the making of laws with respect to 'external affairs'. It enables the enactment of legislation to implement international agreements to which Australia is party. The Copyright Act 1968 (Cth) is clearly intended to cover the field so as to leave little or no room for the operation of State legislation on matters of copyright. Although the federal Parliament's power to make laws with respect to copyright is not an exclusive power, State legislation which detracts from the rights conferred by the Act would certainly be held to be inconsistent with the federal Act and, by force of s 109 of the federal Constitution, overridden by the federal Act. State legislation which detracts from the rights of copyright owners may, however, operate despite provisions in the federal Act when those provisions have to be read down in light of constitutional limitations on federal legislative powers.
As the bundle of rights which make up copyright in a work are statutory, it follows that those rights can be abrogated or abridged by statute, though subject to applicable constitutional constraints. Statutory exceptions to the exclusive rights of copyright owners may, in some cases, detract from the ownership rights conferred by previous legislation. But the High Court's decision in Nintendo Co Ltd v Centronics Systems Pty Ltd[44] indicates that the federal Constitution does not impose any fetter on the power of the federal Parliament to introduce such exceptions. In that case it was held that the federal Parliament's legislative power under s 51(xviii) of the Constitution is not constrained by s 51(xxxi), the provision which authorises the Parliament to make laws with respect to 'the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.'[45]
It follows that the constitutional validity of federal legislation which abridges the rights of copyright owners does not depend on inclusion within the legislation of compensatory provisions.
It should, however, be noted that in Nintendo Co Ltd v Centronics Systems Pty Ltd the High Court did not have to consider what the position would be if federal legislation extinguished accrued causes of action for infringement of copyright. Accrued causes of action are a species of property and the High Court has recognised that their extinguishment by legislation may amount to an acquisition of property.[46]
The fact that the High Court has ruled that the federal Parliament's power under s 51(xviii) of the Constitution is not constrained by s 51(xxxi) does not, of course, resolve questions about the desirability of legislation which makes provision for payment of compensation to copyright owners for acts which, but for exempting provisions in the Act, would be actionable infringements of copyright. The provisions of the Act which allow certain agents of government to make use of copyright material in ways that would otherwise be in breach of copyright impose an obligation to pay compensation for that use in one circumstance only. That circumstance is when the use is for the services of the government concerned.
The various exceptions made in the Copyright Act 1968 (Cth) recognise that there are public interests which justify qualification of the exclusive rights of copyright owners. The exceptions which relate specifically to agencies of government have been introduced to facilitate the work of those agencies. They provide a licence to do acts which could otherwise amount to an infringement of copyright. It is unlikely that they operate as a disincentive to the generation of works which would be the subject of copyright, though it is possible that in some cases they may affect determinations by commercial publishing houses about whether to undertake publication of copyright material submitted to them.[47]
The exceptions made in the Act in favour of governmental agencies do not apply to individual MPs unless they happen to be Ministers and their use of copyright material is for the services of the Crown. Some protection against liability for infringement of copyright is, however, provided by the law of parliamentary privilege, the sections in the Act on fair dealing with copyright works, and the sections dealing with copying by or on behalf of parliamentary libraries. The extent of the protections afforded by the law of parliamentary privilege is not altogether clear.
Government publishing houses which infringe copyright by publication of copyright material by order or authority of a House of Parliament are not exempt from liability for infringement of copyright. Whatever protection they can claim will arise under applicable legislation on parliamentary papers. For constitutional reasons the protections which the State legislation on parliamentary papers gives against liability for infringements of copyright may not have been overridden by the Act.
It is, however, doubtful whether State Parliaments can enact legislation which is effective to protect officers of State agencies against liability for infringements of copyright which may be involved in provision of access to material pursuant to freedom of information legislation. Protective State legislation of that kind would probably be held to be inconsistent with the Copyright Act 1968. State Parliaments may be able to do no more than frame their freedom of information legislation so as to exempt persons from an obligation to provide access to information when provision of access in a particular form might involve infringement of copyright.
The Act is lengthy and incorporates many amendments which have been made following its enactment. Some of the amendments have been made to implement obligations Australia has assumed by its subscription to international instruments; some other amendments have been made to accommodate developments in information technology. Those charged with oversight of the operation of the Act do not, however, appear to have given attention to questions raised in this article concerning the relationship between the laws of copyright and the laws about parliamentary privilege, the laws about publication of parliamentary papers, and freedom of information legislation.
[*] Emeritus Professor of Law, Monash University.
[**] Senior Lecturer in Law, Monash University. We thank Moira Paterson for her valuable comments on an earlier version of this article.
[1] There is some debate as to whether this section applies to computer programs. For an interesting analysis of these provisions see Michelle Taylor-Sands and Kathryn Graham, 'Crown Use of Copyright Material and Computer Programs' (2001) 75 Australian Law Journal 566.
[2] Copyright Act 1968 (Cth) ss 10(1), 10(3)(n); ACT Self–Government (Consequential Provisions) Regulations (Cth) reg 2, Statutory Rules 1989 No 392.
[3] Such other bodies may be styled committees, commissions or boards.
[4] Use for the services of the Crown has been held to cover use for the services of the New South Wales Police Service: Re Seven Dimensions Pty Ltd (1996) 35 IPR 1.
[5] The High Court's decision in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 narrowed the application of this presumption but there remains some uncertainty about when the presumption will apply: see Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001), chs 26 and 27.
[6] Re Australasian Performing Right Association Ltd; Re Australian Broadcasting Commission (1982) AIPC 90–020.
[7] Copyright Act 1968 (Cth) s 183(1).
[8] Copyright Act 1968 (Cth) s 183(3).
[9] Copyright Act 1968 (Cth) s 183(6).
[10] Copyright Act 1968 (Cth) s 183(4).
[11] Copyright Act 1968 (Cth) s 183(5).
[12] The collecting society provisions in the Copyright Act 1968 (Cth) ss 183A–E apply in relation to a 'government copy' which is defined in s 182B to mean a 'reproduction in a material form of copyright material made under subsection 183(1).' Hence, the provisions do not apply to the right to communicate.
[13] As of 1 October 2002, CAL had not entered into any agreement with Government in respect of digital copying.
[14] See Copyright Act 1968 (Cth) s 10(1), 'communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter.'
[15] Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) s 3, sch 1.
[16] Explanatory Memorandum, Statute Law (Miscellaneous Provisions) Bill (No 2) 1984 (Cth).
[17] Commonwealth, Parliamentary Debates, House of Representatives, 13 September 1984, 1295 (Mr Duffy, Minister for Communications).
[18] See Copyright Act 1968 (Cth) s 50(9).
[19] For detailed treatment of these provisions see Staniforth Ricketson, The Law of Intellectual Property: Copyright, Designs and Confidential Information (2nd ed, 1999) [11.240–11.290]; James Lahore, Copyright and Designs, (3rd revised ed, 1996) [44,090]. See also Gareth Griffith, 'Copyright, Privilege and Members of Parliament' (2001) 19 Copyright Reporter 4.
[20] Copyright Act 1968 (Cth) s 12.
[21] See Copyright Act 1968 (Cth) ss 50(1)(aa), 50(7A)(d), 50(7B)(d).
[22] The Copyright Law Review Committee (CLRC) recommended that ss 48A and 104A be amalgamated and apply to permit members of any parliament to make use of all parliamentary libraries: Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1, Exceptions to the Exclusive Rights of Copyright Owners (1998) [7.168].
[23] Parliamentary libraries may provide MPs and their agents with facilities for photocopying works held in their collections (or borrowed by them); but use of such facilities by MPs and their agents will not attract the protections accorded by the Act to parliamentary libraries.
[24] Copyright Act 1968 (Cth) ss 40 and 103C (study and research); ss 41 and 103A (criticism or review); ss 42 and 103B (reporting of news); s 43(2) (professional advice by legal practitioners and patent and trade marks attorneys).
[25] Copyright Act 1968 (Cth) ss 40 and 103C, read in conjunction with ss 10(2) and 10(2A). See also De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 (Beaumont J).
[26] See Enid Campbell and Hoong Phun Lee, The Australian Judiciary (2001) ch 8; Susan Kneebone, Tort Liability of Public Authorities (1998) 259–83.
[27] Copyright Act 1968 (Cth) pt III, div 5.
[28] Bill of Rights 1689, 1 Wm & M Sess 2, c 2.
[29] Commonwealth Constitution, s 49; Parliamentary Privileges Act 1987 (Cth) s 16(1); Imperial Acts Application Act 1969 (NSW) s 6; Imperial Acts Application Act 1984 (Qld) s 5; Constitution Act 1934 (SA) s 38; Constitution Act 1975 (Vic) s 19; Imperial Acts Application Act 1980 (Vic) pt II, div 3; Parliamentary Privileges Act 1891 (WA) s 1; Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 6(1); Australian Capital Territory (Self Government) Act 1988 (Cth) s 24; R v Turnbull [1958] TASStRp 18; [1958] Tas SR 80, 83-4; Article 9 is reproduced substantially in the Parliament of Queensland Act 2001 (Qld) s 8.
[30] Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 6 (2); Parliament of Queensland Act 2001 (Qld) s 9; Australian Capital Territory (Self Government) Act 1988 (Cth) s 24.
[32] Copyright Act 1968 (Cth) ss 48A, 50.
[33] [1840] EngR 304; (1840) 11 Ad & El 253; 113 ER 411.
[34] Parliamentary Papers Act 1908 (Cth); Parliamentary Privileges Act 1987 (Cth) s 16(2)(d); Defamation Act 1974 (NSW) s 17; Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW); Parliament of Queensland Act 2001 (Qld), ch 3, pt 3; Wrongs Act 1936 (SA) s 12(1); Defamation Act 1957 (Tas) s 10 (3); Constitution Act 1975 (Vic) s 73; Parliamentary Papers Act 1891 (WA); Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 11.
[35] Section 109 provides that '[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid'.
[36] Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Colvin v Bradley Bros Pty Ltd [1943] HCA 41; (1943) 68 CLR 151.
[37] For example, a Government Printer.
[38] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31, 66, 75; Queensland Electricity Commission v Commonwealth [1985] HCa 56; (1985) 159 CLR 192, 216, 226, 231, 247, 260; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 139; Victoria v Commonwealth (1996) 187 CLR 416.
[39] The freedom was first implied by the High Court in 1992. See Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106. The implication was further considered in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
[40] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
[41] Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (NSW); Freedom of Information Act 1992 (Qld); Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA).
[42] Protection is given against liability for defamation and breach of confidence.
[43] Section 8A(1) of the Copyright Act 1968 (Cth) provides that, subject to s 8A(2), the Act 'does not affect any prerogative right or privilege of the Crown'.
[44] [1994] HCA 27; (1994) 181 CLR 134.
[45] Ibid 160–1.
[46] Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297. But in this case the accrued cause of action arose under the general law rather than under a statute.
[47] A commercial publishing house could, for example, take the view that it should not undertake the publication of a manuscript on the ground that the manuscript is one which deals with matters which are mainly of interest to those who perform services for the Crown. Section 183 of the Copyright Act 1968 (Cth) would operate to give those performing such services a licence to reproduce the copyright material, albeit under conditions.
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