#7332 - Introduction To Copyright - Intellectual Property 1 (Copyright)

• The CB writers note the general familiarity of copyright law to the public in providing protection to those making literature/art/music etc. but also note that it covers a much broader sweep of commercial, technological and cultural activities

• They note that copyright law itself is very complex and an understanding of matters of legal characterisation, technical definitions, legislative presumptions and statutory exemptions is key. The hard part isn't the cases but mapping it all together

• The CB writers note that the distinction between ‘oral culture’ (transmitted through stories, legends, myths) which represent the deep history of the people who transmit them and ‘print culture’ which enables individual ownership of expressions to be documented and the origin of ideas attributed to individual authors may have led to the emergence of copyright.

• This distinction still remains of legal significance since exclusive rights are offered mainly to fixed expressions like those in writings whereas oral expressions of ‘ideas’ remain common property free for all

• This was the Statute of Anne 1710 but prior to its enactment a number of other practical methods for securing publication rights developed such as Crown Patents granted over essential titles (Bibles, prayer books etc.), rights granted to members of the Stationer’s Company (exclusive rights over printing), and contracts between printers and publishers (through equity and common law concepts such as natural justice)

  • Yet still there remained a large, legitimate and clearly significant licensed book trade which was intensified by the Union with Scotland (since they were unaffected by London trade arrangements). It was this that led to the London Stationers successfully petitioning for law recognizing exclusive right to property

  • The Preamble to the Statute of Anne provides, inter alia

“Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting and publishing, or causing to be printed, reprinted and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty that it may be enacted

…

That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April and no longer”

• The CB writers note three key things from this:

  • It granted a right in the public interest – incentives created to encourage the supply of future works

  • Acknowledgement of the author as the original owner of the literary property right, but the interests of the author and printer are somewhat conflated

  • The right granted is only for a limited term

• The CB writers note the importance of the Enlightenment at this time – encouraging the pursuit of truth and raising education levels of the population. John Locke’s theory that one should have a natural right to own the fruits of their own labour was adapted later by Blackstone and extended into intangible rights into a case for the natural right of authors to perpetual copyright

• During this time Romanticism was also an influential movement which led to preoccupation with the ‘creative genius of the modern author’ - leading to presumptions that copyright rewards original creative endeavours and not just useful works.

• Millar v Taylor

  • Facts: Millar claimed he purchased rights to The Season a work by a Scottish Poet and thus he obtained a perpetual CL right to republish it. Taylor claimed that under the Statute of Anne copyright expired and there was thus no infringement.

  • Held (Wiles J): The records of Chancery prove the existence of a common law right of the author – the statutory provisions do not affect pre-existing CL rights and the statute was primarily of application to situations like University publishing

  • Held (Aston J, Lord Mansfield): Their honours agreed that Taylor was a stranger attempting to reap the benefits of another man’s labour and that perpetual monopoly was essential to encourage the ‘painful researches of learned men’.

  • Dissent (Joseph Yates):

    • To succeed Millar had to prove that compositions of authors were property and property rights cannot exist beyond the boundaries of property (like the pages between the covers of a book and not the rights to reproduce it)

    • He rejected the possibility of acquiring property by labour alone because it assumes people can sustain a private right just by working on it – this would mean that another person who had the same ideas could not presume to publish them.

    • Blackstone’s Lockean justification was rejected because it begs the question in dispute. It presumes that ideas are capable of being privately and exclusively owned

• This case was effectively overruled in Donaldson v Beckett which, though there is considerable uncertainty surrounding the propositions that it stands for, is generally accepted to affirm the existence of copyright at common law but which had been supplanted by the Statute of Anne.

• The CB writers note three key features of the Statute of Anne which have changed over the years since then:

  • Limitations in time

  • Limitations in geography (i.e. only extended to works in Britain)

  • Limited in subject matter

  • Limited in scope – how far the right to copy extended beyond prohibiting others from making identical copies

• The Copyright Act 1968 (the Act) is an exclusive criterion of copyright rights but unfortunately key concepts in the Act are not defined which makes for interpretive complexity by allowing reference to a range of legal and cultural meanings to influence interpretation. Provisions have also constantly been added to the Act to cover conceptual weaknesses as they arise.

• Reproductive technologies and practice have also made the law broader and as has the internationalisation of rights due to the importance of intellectual property in global trade (e.g. the WIPO Copyright Treaty and AUSFTA)

• The CB writers also note that the Allen Consulting Groups report on copyright records a net deficit in earnings for Australia – most of the benefits going to the US and UK

• There is also a thinness in the constitutional justification, economic analysis and consistent policy development in Copyright Law

• The Act is complex legislation but there are some general principles and broader notions underpinning copyright logic including the concepts of:

  • The public domain;

  • The nature of copyright as property;

  • The idea/expression dichotomy;

  • The author;

  • Material form; and

  • Originality.

• The preamble to the WIPO Copyright Treaty suggests that copyright’s exclusive rights are balanced with ‘the larger public interest, particularly education, research and access to information’. Public domain is often used to provide a reference point defining the public interest side of the copyright balance.

  • For e.g. the impact of copyright term extensions can be measured with reference to the book titles that will subsequently be unable to be reproduced without permission and accessed by the public at no cost

• But legally the public domain is ascertained against the backdrop of positive rights – it is the sum of things not protected by copyright.

• The Australian public domain is made up of a range of interests and it is usually straightforward to objectively determine what is in the public domain in relation to:

  • Works in copyright that have expired;

  • Productions not protected (e.g. due to jurisdictional complications); and

  • Ideas, information and facts

Users can also access works without permission:

• Where the resource fails to meet minimum threshold standard for protection (e.g. lacking originality);

• To take insubstantial portions of copyright works (the test of infringement requiring substantial taking); and

• To exercise fair dealing in rights

• There is a high degree of uncertainty in using these instances to mark out the public domain. Whether unauthorized use would involve a copyright infringement involves consideration of particular facts and circumstances.

• Victoria Park Racing demonstrates the role of the public domain in structuring legal reasoning.