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Simpson, Adam --- "Content and Copyright in the Digital Age: Impact On Contract" [2001] JlLawInfoSci 6; (2001) 12(1) Journal of Law, Information and Science 70

Content and Copyright in the Digital Age
Impact on Contract



© 2001


This article examines the ways in which the digital age is different and considers how that affects the law of contracts. First, digital equipment allows cheap high quality copying, makes it easy to modify digitally stored material and has created the expectation that digital material should be free of charge. The Australian government has reacted to the new environment by extending the law of copyright to give the copyright owner a right to control communication of copyright material and by giving the authors of copyright material moral rights. The author argues that the growth of digital technologies will lead to an increase rather than a decline in copyright protection with the right to communicate becoming the most valuable right. New forms of contract will play an important role in enabling the exploitation of these rights. Copyright owners are advised to be careful about giving broad grants of the right to communicate their work in ways which may make it easier for pirates to copy the work illegally. Copyright exploiters, such as film and record companies, are already entering into contracts to ensure that the communication right is under their control. As digital rights become increasingly valuable, copyright owners should ensure that they are not locked into schemes which reduce the royalties they receive for the digital exploitation of their works. They also need to ensure that they do not enter into unreasonably broad warranties of the right to use the material without infringing the rights of third parties

1. Introduction

Now at the end of a two day seminar on content and copyright in the digital age, you have heard much about the impact of emergent technologies on the creation and use of digital content.

From a legal perspective, Delia Browne from the Arts Law Centre of Australia, has examined some recent developments in Australia’s copyright laws in particular those relating to moral rights.

What I am here to do is highlight core contractual issues that arise from the legal and technological changes that have been discussed today.

I will not be looking at the general application of the new laws nor or be looking in great detail at legislation and cases. This paper will not seek to discuss elements of contracts executed on-line such as digital signatures of questions of choice of law. This has been done elsewhere. I will be looking at what makes digital different and how that affects contractual relationships.

It is certainly an important issue, the Copyright Law Review Committee (CLRC) yesterday launched a 12 month inquiry into the relationship between contract and copyright law, with particular focus on online agreements.

These issues are vital to you to understand and implement agreements for digital content. They will assist you in assessing whether your existing contracts need to be reviewed. They will hopefully empower you when you are negotiating contracts in the future.

In particular, I would like to answer the following questions:

(a) What makes the digital age different in the eyes of the law?

(b) What are the contractual implications of the amendments to the Copyright Act?

(c) What issues need to be considered when granting rights in an on-line environment?

(d) What needs to be considered when negotiating and allocating digital rights between creators and users? and finally:

(e) What action do you need to take for existing and future contracts?

2. What makes the 'digital age' different?

Well what is the 'digital age'? Another newspaper cliché? Another 'information superhighway'? I feel we are only just dabbling in digital. I don’t actually think we are in a 'digital age'. We are still heavily reliant on analogue systems and our thinking is still encumbered by that reliance. While we have been obliged to rethink our business models they have not yet been implemented and integrated substantially into our society. Most people still for example, prefer to read the news in print rather than from a screen.

That said, we have had our first taste of a digital age. Whether sweet or sour, it is certainly different.

From a legal perspective, what makes it different?

(a) Firstly, the creation of digital content is comparatively easy. That is not to say that the artistic endeavours underlying the content are now easier, a horrible piece of music is still horrible. Technological advances have however made it easier to create by providing a cheap and easy set of tools for would be creators. Take 'desktop' publishing or studio recordings for example, where once hundreds of thousands of dollars of equipment would be required to produce a magazine or CD, respectable works can now be put together on systems of under four thousand. These advances, such as the now lowly scanner have also facilitated the conversion of previously analogue works to digital. Further, digital is, more and more, the chosen format for commercial content. The latest Star Wars film was 80% digital. To what effect? Well, simply to say there is an enormous body of digital works in existence. The 'digital' issue is affecting everyone, virtually all contracts for content must consider the digital and on-line aspects of copyright exploitation.

(b) Secondly, unlike its predecessor analogue, there is little or no appreciable degradation in quality when digital material is copied. It is, for example, extremely difficult to tell pirate CDs or DVDs from the legitimate. Where a photocopy of a photocopy of a fax can be unreadable, the millionth copy of a CD is as good as the first. The demand for copies has dramatically increased. There is a strong market for the distribution and use of reproduced digital works and it will get stronger. Commercial growth is requiring greater legal and structural certainty.

(c) This demand for copies is easily met. Household computers are easily capable of storing and reproducing digital works. Very little expertise is currently required to copying a file onto a disk. A little bit of technical savvy will empower you to burn a CD, a couple of friends doing IT at university will enable you to crack the encryption codes for DVD. The ability to copy is readily available to the masses. Digital piracy is pervasive.

(d) Next, digital works are not only easily reproduced they are also easily manipulated. This is where it starts becoming interesting. Not only can the content of a work be modified but its form can be varied – what once was a series of photos could quickly become an animation. Despite the battle of the platforms, there is still a great uniformity. A work created on one machine can generally be copied and manipulated on another. Graphic applications like PhotoShop or audio applications like Logic, allow different users to access, copy and manipulate other people's digital works.

(e) Further, once on-line, these digital works are usually accessible to anyone with an Internet connection in just about any country in the world. There are two particular ways in which the Internet sets the digital world apart. Firstly, global distribution raises curly problems of which country’s law to apply. Secondly, the Internet is, a comparatively new way of delivering copyright works. This has caused ‘classification’ problems in trying to fit new technologies into old laws.

(f) The digital age has also fostered a culture of freedom and free-riding. On-line communities founded in the likes of Napster, Gnutella and Scour have created an expectation that digital content should be free. It’s not just the hippies either; would you expect to pay for the on-line Sydney Morning Herald? The number of American Internet users downloading free music on any given day has doubled to more than 6 million. Most do not care that they are breaching copyright in doing so. This has increased the likelihood of piracy and misuse of digital content and made commercial exploitation more challenging.

(g) Lastly, and of particular importance today, access, distribution and use of digital works can potentially be controlled by technological means. While these technologies are still in their infancies, they are promising to provide new and divisible avenues for exploitation, control and access to digital works. In rethinking the commercial application of copyright and redesigning the complex copyright systems currently in place (take the music collecting societies as an example) new opportunities for exploitation and access have become clear. What was once broadcast radio can now become a user-tailored on-line music delivery system based on a pay-per-listen or subscription system. The options to copyright controllers and users are extensive – the exploitation of digital works is potentially far more extensive and complex than for traditional works.

(h) To summarise, the digital age is different because:

A. The 'digital issue' will affect more people more rapidly than any previous technological innovation.

B. Digital works are available to and used by millions and millions of people in hundreds of different countries, each with their own laws and customs.

C. There is an expectation of many that digital works should be free and accessible to all.

D. While it is still easy for most people to copy and modify other people’s digital works this is set to become more difficult.

E. More control will be given back to the copyright owner to control the use of their works.

F. These distinguishing features have sparked global and often heated debate between creators and users of copyright - seeking a balance between use and abuse and a fair division of rights to stimulate creation and exploitation.

(i) Governments around the world have sought to keep laws abreast of technological innovation particularly in relation to copyright. Australia has introduced probably the most radical suite of copyright reforms in this country since 1968.

(j) The technological innovation behind the digital age has spawned new industries, new business opportunities - new deals.

(k) In the back rooms, occasionally coming out for biscuits, have been the lawyers - making contracts to survive and manage the digital age.

(l) This seminar is about the issues that affect those contracts

3. The Copyright Act’s New Right For Copyright Owners – The Communication Right

The recent introduction of a new right for copyright owners, the right to 'communicate' their work[1] to the public, is a major development in Australian copyright law. The right came into effect on 4 March 2001. Contracts spanning over or commencing after this time must effectively manage this new right.

The Copyright Act has made the new right far reaching - expanding upon and clarifying the existing bundle of copyrights. It is broad enough to cover free-to-air television, cable, radio and the Internet. Not only does it provide new on-line rights, it has replaced the existing broadcasting and cable rights and extended the copyright protection afforded to sound recordings over cable.

In relation to the Internet (and its future re-incarnations) the new right not only includes the right to 'electronically transmit' (such as emailing Brittany Spears’ new track) but also to 'make available on-line' which would include simply having your computer on a file-sharing system such as Gnutella and allowing others to access that track from your hard drive.

Importantly, the right covers communications not only within Australia but ones originating here and received overseas. Australian copyright owners can thus seek to prevent the unauthorised communication of their works offshore. For example, the right could be used to stop an Australian based website from making a film or song available not just in Australia but anywhere in the world. Given the global nature of the Internet such recourse is, of course, essential if owners are to protect their works.

Where the old Act did not contemplate the Internet, the new right provides specifically for 'on-line' distribution. Furthermore, the Government has aimed to keep the right 'technology neutral' so that the right will continue to operate and withstand the semantics and processes of scientific innovation that would outdate a definition based on existing technology.

In a nut shell, the new right to 'communicate' works to the public is extremely broad. It clarifies and reinforces the copyright owner’s basic and exclusive right to control the use of their work in the digital environment.

What does this mean for contracts? It means the division of rights between copyright owner and user must be carefully considered and specified.

For contracts made after 4 March this year, the new right must be considered or provided for. When considering or drafting a contract, if the reference is made to an unrestricted grant of the right 'to communicate the work to the public' – the grant is likely to be interpreted to the full extent intended by the Copyright Act – it will cover all forms of electronic distribution. When preparing for negotiations of rights, be aware of the broad nature of this right and, importantly, its value. Copyright owners must ask themselves: are they giving up more rights than are necessary? If they are giving up digital rights, are they being properly valued?

If less than the full right of communication is intended then contract should clearly specify the extent of the grant and all restrictions that should apply.

Further, if an agreement between a copyright creator and user contains provisions for the payment of royalties for various different uses, contract can play a vital role in clarifying precisely how each particular use should be treated. For example, if a contract provides for different royalty payments for reproductions and performances of copyright material, the contract should clearly define what is considered a reproduction and what is considered a performance in the on-line environment.

For contracts entered into prior to 4 March 2001 that refer to the now outdated diffusion and broadcast right, the new Act provides that, subject to contrary intention[2], the contract will continue to have effect as though those rights remained unamended.

If on-line rights are required, contracts made before this date should be checked to ensure that they have been drafted in such away to cover the new rights of communication. If the contract does not provide for, say, the required ability to electronically transmit works on-line, then the contract will need to be amended and renegotiated. Presuming the other party is still available and willing, this may be done by a simple side letter amending the main contract.

Given the new communication right has expanded the exclusive rights of copyright, there will be a rebuttable presumption that contracts entered into before 4 March 2001 do not encompass the more expansive rights[3]. The presumption can be rebutted by evidence to the contrary. This tips the balance of rights in favour of the copyright owner. This will always be a question of interpretation of the words in the contract (or other supporting documentation) or the conduct of the parties.

Where a contract assigns 'all rights' , specifically licenses 'future rights' or provides for any activity which involves the exercise of the new elements of the communication right (such as uploading the work onto a server) that contract would be interpreted to cover the entirety of the new communication right. However, a specific reference to only one element of the communication right (such as electronically transmitting a work) will not be interpreted to cover the remaining rights (such as making a work available on-line).

To apply these issues hypothetically, let us take the situation of two large music royalty collection societies, AMCOS (Australasian Mechanical Copyright Owners Society) and APRA (Australasian Performing Rights Association) and how they might tackle the 'digital age'.

Prior to the introduction of the new communication right, AMCOS collected on behalf of its music publisher members, 'mechanical' royalties, for the reproduction of their music and lyrics in records by way of an exclusive licence. APRA collected, on behalf of its song writer members, income flowing from the public performance, broadcast and cable transmission of their works. For APRA to do so effectively, its members assigned their rights of public performance, broadcast and cable transmission to APRA.

At this time, it was not clear how the law was to treat on-line distribution of copyright works. Without particular legislative direction, there was however, a clear indication from the High Court that on-line use would be protected by copyright. In Telstra v APRA,[4] the 'music-on-hold' case, while it had been found at first instance that use of on-hold music was not a performance, the court held that on-hold music played through telephones was an exercise of the broadcast right (for mobiles) and the transmission right (for land-lines). Kirby J went on to say that on-line use was likely to be an exercise of copyright – which particular right (or rights) was not divulged.

During this period of uncertainty, AMCOS issued, on a trial basis, licences to on-line music developers to deliver music on-line. It was granted on the basis that such on-line use was an exercise of the reproduction right exclusively licensed to AMCOS. It quite possibly was (and still is), but was on-line use also an exercise of the broadcast or transmission right and therefore also under the control of APRA? Indeed can a single act be an exercise of two rights at once?

With the introduction of the new communication right, this uncertainty was partly resolved. On-line use is an exercise of the new communication right[5] (but not a broadcast[6]) and is not a performance[7]. So what does this mean for APRA, AMCOS and their members?

Well, for APRA, for all its member agreements made after 4 March 2001 unless the communication right is specifically provided for, APRA will not have the right to collect income on behalf of its members for on-line use.

For all APRA agreements made prior to this time:

(a) APRA will still be able to collect the traditional revenue avenues of broadcasting, public performance and cable diffusion.

(b) It will be presumed however, that APRA does not own the broader rights (such as the on-line rights) afforded by the new communication right. The presumption can be rebutted by an interpretation of the member agreements as to whether APRA’s members in fact intended to assign their on-line distribution rights. Without very clear evidence of such an intention, it is unlikely a court would find that such an assignment has been made.

In light of this, APRA has sought to renew all its membership agreements (some 30,000) to encompass the new communication right. This of course does more than maintain the status quo in relation to what was broadcast and cable transmission, it significantly extends the grant of rights to APRA into the digital age.

For AMCOS the same analysis applies. Whether it controlled or controls the exclusive rights to reproduce works in the process of a 'communication' , would be a question of interpretation of contracts made prior to 4 March and re-drafting thereafter.

It is strongly arguable that downloading (rather than streaming) music encompasses an element of reproduction as a non-temporary[8] copy of the song is likely to be made on the users hard-drive. If this is so then AMCOS would be entitled to collect on behalf of its members when there is a download but not a stream of a music.

So how can our hypothetical situation be dealt with? Glad you asked – by contract. AMCOS and APRA must address their agreements with their members to ensure that they each control distinct rights covering on-line use whether it be by download or streaming. If it appears that downloading a piece of music, would be exercising not only the communication right but also the reproduction right, AMCOS and APRA must ensure that they agree as to how such use should be treated.

4. The Copyright Act’s New Rights For Copyright Creators – Moral Rights

As you know now, creators of copyright works now have the benefit of three new rights called moral rights, under the Copyright Act. [9] These are the rights of the individual:[10]

(a) To be identified as the author of their work (the 'Right of Attribution');

(b) Not to have someone else identified as the author of their work (the 'Right Against False Attribution');

(c) Not to have their work subject to derogatory treatment (the 'Right of Integrity of Authorship').

As moral rights are distinct from copyright, the introduction of these new rights means that there are now possibly three separate consents that must be obtained before a copyright work is used:

(a) The consent of the physical owner of the work (to obtain access to the work);

(b) The consent of the copyright owner (to reproduce the work or exercise any of the exclusive rights of copyright); and now;

(c) The consent of the creator of the work to ensure there are no infringements of that person’s moral rights.

If there is an infringement of moral rights the creator may seek a wide range of remedies from the court including an injunction and an order to pay damages.

For those who invest in copyright works, that is, the users of copyright, the remedies available to creators are the source of fear and trepidation, particularly in the film industry. What would happen if a producer or scriptwriter didn’t like the way in which her work had been modified for the European market? Would she seek to stop the international distribution of the entire work to which her contribution was only minor?

In our digital age, where works can be easily accessed, manipulated and distributed, the issue of moral rights is particularly present. In addition to the existing range of requisite copyright permissions, content developers, be they film producers or multi-media developers, now must obtain moral rights consents from copyright creators for the use of their work or risk infringement.

Particularly, with some designers’ predilection for 'borrowing' works found on the Internet and amending them to suit new uses, great administrative care must be taken to identify copyright material and obtain the requisite consents.

Care must also be taken, when obtaining consents to ensure that they are not only valid but enforceable. For example, if a consent is given without consideration it may be interpreted as a mere licence and retractable at the will of the creator.

We have seen that the new moral rights legislation treats the film industry differently when looking at what kind of consents will be considered valid.

While still subject to the provisions relating to duress and false and misleading statements, as result of the lobbying of the film making industry, a particularly heavy user of a vast array of copyright material, the Copyright Act treats the requirements for contractual consents for works that are films or included in films more leniently than in other industries.[11]

For these works, it is not an infringement of a moral right if an act or omission is within the scope of a written consent given by the creator (or their representative).

The consent acquired can thus be extremely broad. It can:

(a) cover any acts or omissions that have occurred or that may or will occur before or after the consent was given;

(b) be for works which have been already created, are in the process of being created or will be created in the future;

(c) be given by an employee for the benefit of his or her employer in relation to all works made by the employee in the course of his or her employment;

Such a broad consent clause is tantamount to a waiver by the creator of all his or her moral rights, the only real particular restrictions being that such a waiver must be in writing. That said, care should be taken not to use 'waiver like language' which could be void.

In comparison, for other industries, there are greater restrictions on what consents may be given.[12]

As before, subject to the provisions relating to duress and false and misleading statements, it is not an infringement of a moral right if an act or omission is within the scope of a written consent given by the creator (or their representative). However, the Act provides that the written consent must be genuinely given.

Further, a consent will not have any effect unless it is given:

(a) In relation to specific acts or omissions (or classes of such acts or omissions) whether occurring before or after the consent; and

(b) In relation to either of the following:

A. A specified work or specified works existing when the consent is given;

B. A specified work, or works of a particular description, the making of which has not begun or that is or are in the course of being made.

Given the different treatment of 'film' under the new legislation, for those industries that dabble in film such as the multi-media and computer game industry great care will need to be taken in drafting consent clauses to ensure that they are valid for the intended use.

Clearly, if the work is not a film or being used in a film then the consent clause in the contract must provide very carefully for each specific work created and each specific type of use intended. So what exactly is a film?

The definition of a 'film' under the Copyright Act is tied to visual images being shown as a moving picture and embodied in an article or thing.[13] The legislative definition is restrictive, could potentially throw into doubt the status of visual images which exist simply in digital form for use in a personal computer or for transmission over a network.[14]

The courts have however interpreted the definition broadly. In Sega Enterprises Ltd. v Galaxy[15] the Federal Court held that interactive computer games encoded in integrated circuits came under the definition of a 'film' even though the film’s content is substantially controlled by the game player. The courts have been satisfied that the variable images are embodied in the computer program that drives them and forms the moving images.

It is likely then that computer animations such as those created by the Flash software (or works created for use in those animations) and streaming images will be considered films and broad consent clauses will be considered valid.

For multi-media works, however, which are likely to have film and non-film elements great care will need to be taken in differentiating which works are to be included in the non-film aspects so that the narrower and specific consent clauses can be applied.

5. Granting Rights in an Online Environment

Digital content is extremely flexible property. It is easily reproduced and easily modified. When delivered on-line it can often be packaged and delivered to anyone with an Internet connection at a fraction of the unit cost of traditional delivery.

The electronic nature of the property, distribution channel and use has provided an unprecedented opportunity, not only for pirates, but also for the copyright controllers. For the copyright controllers it is an opportunity to control their works in a much more flexible manner than ever before. This has opened new options for consumers and new avenues of exploitation for owners.

Digital rights management systems, such as those developed by InterTrust and IPR Systems, are paving the way for copyright works to be traded on line. These systems seek to provide a secure mechanism by which to trade on-line. These systems will also enable content dealers, such as music labels, publishers, and artists, to deliver products to consumers with the ability to control the manner in which their works are delivered, used and paid for.

Thus, as the commercialisation of the Internet continues, rather than see the 'death of copyright' we are likely to see a previously unprecedented level of copyright control and access.

Of course, piracy is likely to always be present regardless of the level of security, the 'uncrackable' DVD code competition is testament to that. That said, as security systems cut out the amateur pirates among us and as legitimate on-line delivery systems become a realistic and cheaper alternative to traditional media, piracy of digital content will fall.

So what does this mean for contracts? The complex and divisible nature of digital content and distribution highlights the need to consider the many and variable avenues for exploitation and defining what rights and what income stream mechanisms are required for such exploitation.

In the digital age, this is not necessarily an easy thing.

Firstly, until the introduction of effective security tools for on-line trading the copyright owner may not be willing to grant or licence rights that can not be controlled once public access is given.

From their perspective, granting the right to communicate your work to the public without restriction may expose their work to additional risks of piracy. Currently, there is little one can practically do to stop making the work available on line for free. A CD can be purchased from a record store and tracks relatively easily copied onto a computer and uploaded onto the net. Similarly, a literary work can be retyped into a Word document and emailed around the world.

That said, authorising someone, let us say a book publisher, the right to unconditionally exploit the work on the Internet may just be making it easier for the pirates in that the hard work in formatting would already be done.

A grant of the broad 'communication right' should be carefully qualified so as to minimise the dangers of copyright abuse. For example, the contract may contain a clause providing that, if the work is to be distributed on-line it must be have an effective and approved security and rights management mechanism to enable controlled exploitation and subsequent re-use.

Secondly, technological advances are continually changing the business models under which the contract must operate. This makes it difficult to evaluate the value of new uses of copyright.

The difficulty in valuing digital rights has impeded their commercial exploitation. As business models are developed and clear income streams are identified, access and exploitation will flourish. While traditional distribution channels still account for the main commercial value in the exploitation of copyright works, this is changing. As broadband delivery systems and convergence technologies slowly take form, the communication right (with its on-line element) will become the most valuable. Most copyright exploiters, such as the film and record industries, are aware of this and are busy amassing such rights for later exploitation, negotiating their contracts so that the communication right is under their control.

Now that the law has extended copyright protection to the digital environment, the entertainment industry is set to move beyond using the Internet as a promotion tool to using it for mainstream distribution. Disney has said:

“We view the Internet as the next important frontier in the distribution business, as we proceed, we now have the sense that the courts will protect properties on the Web.”

While no major players in the film industry have revealed their game plans, Sony is set to release its MovieFly service this May which will allow consumers to download full-length feature films to consumer computers and Miramax and Lions Gate have put parts of their film libraries online and promise more in the near future.

Suffice to say, the right to distribute works on-line is potentially very valuable.

In the music industry, even in old contracts, the exploitation of these rights is often provided for in 'catch-all' clauses. These clauses tend to refer to and encompass the 'new' rights in a right to distribute copyright in 'all media whether now known or yet to be invented'. The remuneration to the copyright owner for such exploitation is entrenched similarly in a wide clause referring often simply to 'Other Uses' in which a lower royalty rate than traditional media is provided for. This is no longer acceptable – remuneration of digital rights must be specifically provided for to encourage the development of the industry.

If on-line exploitation is to be the big money earner the entertainment industry thinks it can be, copyright owners must be careful when granting their on-line rights and negotiating their contracts. Particular attention should be paid to how on-line revenue streams are provided for – just because it is new or not making money now does not mean the copyright owner should be locked into low royalty schemes. Flexible remuneration mechanisms can be built into contracts such that if on-line delivery is a success for the distributor (say the record company) then it can be a success for the copyright owner.

Thirdly, the grant of rights may affect the nature of the warranties provided by the copyright owner.

Most contracts have warranties and indemnities provided by the copyright owner to the effect that the proposed use sanctioned by the licence or assignment will not infringe the rights of third parties.

As the grant of rights becomes wider and wider, so do the warranties and indemnities. While this is to the benefit of the licensee it may be unrealistic for the copyright owner.

For example, if a music group called, lets say 'HABIT', extend their existing record agreement to encompass on-line distribution, then they will licence their record company owner with the requisite global rights.

For the group to warrant and indemnify the record company to the effect that use of the name 'HABIT' will not infringe the rights of anyone else in the world is dangerous.

While copyright is not likely to be an issue, other potential infringements such as trade mark or defamation may still arise. Clearly the group will not realistically be able to guarantee that the name 'HABIT' is not being used by anyone else in the world. Care should be taken such that in the expansion of on-line rights additional and unrealistic obligations are assumed.

6. Conclusion

The full impact of the digital age is not yet upon us. We are the pioneers, the explorers. There is now a legal framework in place to enable a solid business model for the all embracing commercial exploitation and access to digital works. While it will undergo some growing pains, the wild digital west ain’t as wild as it used to be.

For the developers, the financiers and the copyright owners, the digital age beckons. The deals are out there to be made and contract will be there to hold them together.

[*] Adam Simpson is a Senior Associate with Simpsons Solicitors, Simpsons is ranked as one of the top three entertainment firms in Australia. Adam specialises in intellectual property issues, with a particular interest in copyright, in the media and entertainment industries. He has acted for content owners, producers and distributors in traditional media as well as emergent technologies. He enjoys his work, is a regular volunteer lawyer at the Arts Law Centre of Australia, a member of the Copyright Society of Australia, the Society for Computers & the Law and an active NSW Committee Member of the Australian Interactive Multimedia Industry Association (AIMIA).

[1] The Copyright Act in parts III & IV distinguishes between 'works' and 'subject matter other than works' (such as films). As the communication right applies to both, see sections 31 and 85-7, 'work' in this context shall also include 'other subject matter'.

[2] See Copyright Amendment (Digital Agenda) Act 2000, schedule 2, item 3.

[3] See Copyright Amendment (Digital Agenda) Act 2000, schedule 2 .

[4] [1997] HCA 41; (1998) 191 CLR 140.

[5] See definition of 'communicate' in the Copyright Act, section 10.

[6] While the previous broadcast right has been subsumed under the new communication right, the definition of a broadcast in section 10 has remained so as to maintain the existing statutory licences and exceptions. The minister has issued a notice in the Gazette that on-line streaming (and arguably downloads) of audio and video are not 'broadcasting services' see Lahore, Copyright & Designs at [51,110].

[7] See section 27 of the Copyright Act.

[8] The Copyright Act provides specifically that 'temporary reproductions' made in the course of a 'communication' are not infringements of copyright see section 43A.

[9] Moral rights are owned by the authors of literary works (from books to computer programs), dramatic works (such as choreography), musical works (such as a musical score), artistic works (such as sculptures) and producers, directors and screenwriters of films now have the benefit of moral rights for the final cut of their films. There are no moral rights for sound recordings (see sections 189, 190, 191, 195AZJ, 195AZK and 195AZL.

[10] Particular provisions apply to joint authors, directors, screenwriters and producers; see sections 195AZI - AZL.

[11] See section 195AW.

[12] See section 195AWA.

[13] See section 10(1) of the Copyright Act.

[14] See Ricketson, S., The Law of Intellectual Property: Copyright Designs and Confidential Information, at [8.54].

[15] (1997) 145 ALR 21; Ricketson, S., The Law of Intellectual Property: Copyright Designs and Confidential Information, at [8.54].

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