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Digital Technology Law Journal |
Tanya Aplin
IMAGO Senior Research Fellow
Asia Pacific Intellectual Property Law Institute
Murdoch University
aplin@central.murdoch.edu.au
This article outlines the proposed moral rights legislation that is likely to be introduced into Australian copyright law, which includes the right of attribution, the right against false attribution and the right of integrity, and evaluates the impact of these provisions on Internet service providers. The article also touches on how the new rights of transmission and making available to the public, proposed in the Commonwealth Discussion Paper, `Copyright and the Digital Agenda', July 1997, interface with the proposed moral rights scheme. It is suggested that any introduction of moral rights should be carefully considered in light of both existing and future copyright law.
1. Introduction [1]
[1] The introduction of moral rights into Australian copyright law appears to be imminent. [2] Australia will then be able to feel confident that it is satisfying its international obligations under the Berne Convention. [3] Internet service providers (ISPs), however, will not be a position of confidence. ISPs are still grappling with the extent of their liability for copyright infringement [4] and the introduction of moral rights looks set to compound their worries. The purpose of this paper is to identify how ISPs may be exposed to liability under the proposed moral rights legislation.
2. Potential liability of ISPs for moral rights infringement
[2] Pursuant to Schedule 1 of the Copyright Amendment Bill 1997 (Cth) (`the Bill'), moral rights will be inserted into the Copyright Act 1968 (Cth) (`the Act') and consist of the right of attribution, the right against false attribution and the right of integrity of authorship. These rights will extend to the authors of literary, dramatic, musical or artistic works (`works') and the directors and producers of cinematograph films (`films'). [5] It is proposed that moral rights attach to works and films existing at the time the legislation comes into force (as well as future works and films), although only acts after such legislation comes into effect will be capable of infringing moral rights in relation to existing works and films. [6]
[3] Each of the proposed moral rights will be considered in turn, together with the potential of ISPs to infringe them. Before proceeding any further, an understanding of an ISP is essential. Perhaps the best way to approach defining an Internet service provider (ISP) is in contradistinction to communications carriers and content providers.
[4] The Internet is comprised of numerous interconnected smaller networks of computers and individual computers. [7] A person does not visit the Internet but rather connects to it and forms a part of it. [8] An ISP provides connections to the Internet and is the necessary party through which a person may access or connect to the Internet. For this reason, the description `access provider' is sometimes used interchangeably with `service provider'. ISPs may come in a variety of shapes, such as a company, university or government body, and sizes. The basic access that an ISP provides to its subscribers is access to the World Wide Web, email, newsgroups and `chat' rooms. [9] However, ISPs may also offer additional on-line services to their subscribers in the form of hosting others websites or operating proxy servers. [10] A proxy server is a server that sits on the Internet storing local copies of frequently accessed files to allow faster Internet access. [11] It is fair to say that as well as storing content, an ISP in this situation also offers to transmit that information to persons requesting it. Without also providing this service, the service of hosting websites or operating proxy servers would be futile. It is intended to distinguish these activities by describing them as `simple access' and `value added access' respectively.
[5] A communications carrier (or common carrier) is also a vital party for anyone connecting to the Internet, but in a way different from an ISP. A communications carrier is a company, usually a telecommunications company, which provides the physical wires or microwave links over which data is transmitted between computers comprising the Internet. [12] The infrastructure that carriers provide is sometimes referred to as `backbone' [13] and ISPs generally lease backbone from carriers. [14]
[6] A content provider is the individual or company that provides the content of a web site. [15] ISPs often operate their own websites, either for the benefit of subscribers or for the public at large. In this capacity, ISPs are acting as content providers rather than service providers.
[7] In the discussion which ensues it is important to remember that carriers, service providers and content providers are descriptions of particular activities and it is possible for a single entity to occupy more than one of these roles at any one time. The focus of this article, however, will be on simple and value added access provided by ISPs, and not on ISPs acting as content providers.
2.1 The right of attribution
[8] The right of attribution of authorship is the right to be identified as the author of the work if any attributable acts are done in respect of the work. [16] For the purposes of a film, the author is the maker of the film, who in turn is defined as the director and producer of the film. [17] An infringement will occur if a person does an `attributable act' [18] in respect of the work or film without identifying the author [19] by a reasonable form of identification [20] , which is clear and reasonably prominent. [21]
[9] In determining an ISPs vulnerability to moral rights infringement, the first question is whether an ISP would be engaged in any of the `attributable acts' listed in s 193. The most likely attributable acts that an ISP will be engaged in are reproducing the work in material form or copying the film or transmitting the work or film. [22]
2.1.1 Reproduction or copy
[10] The moral rights provisions will be included as Part IX of the Act. Within that Part there is a definition section. [23] However, neither `reproduction in material form' or `copy' is defined in that section. In these circumstances, section 10 of the Act would apply to assist in defining these terms [24] and it would seem logical that the interpretations of these terms, developed for copyright law, would apply.
[11] `Reproduce' is not defined in the Act, although section 14(1)(b) emphasises that a `reproduction' includes a reproduction of a substantial [25] part of the work. The courts have been left to construe the notion of `reproduction' and this has resulted in two elements being introduced, namely, an objective similarity between the original work and its reproduction and the reproduction being produced by use of the copyright work. [26]
[12] There must be a `reproduction' in a `material form'. Section 10(1) defines `material form' in the following way:
`In relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced.'
[13] The significance of this definition is that the notion of `reproduction' is extended to include those instances where the alleged reproduction is in an entirely different form from the copyright work.
[14] `Copying' is not defined in the Act. [27] However, it seems that it will be assessed upon the same basis as `reproduction'. Section 14(1)(a) makes it clear that `copying' may involve copying a substantial part of the subject matter. Further, the case law refers to `reproduction' as meaning `copying' [28] and this interchange of concepts is supported by section 10(1) of the Act, which defines `infringing copy' in relation to works as meaning a `reproduction' of the work. Thus, `copying' will require objective similarity, of a substantial nature, with the copyright subject matter and derivation from that subject matter.
[15] The difference between `copying' and `reproduction' is that the former is a more restricted concept because `copying' must be in like form, rather than `material form' (as defined above). [29]
[16] The most obvious situation in which an ISP might reproduce a work or copy a film or sound recording is where an ISP provides value added access. Where an ISP hosts another person's website, the content of that website will be stored in digital code on the ISPs hard disk and will be accessed via the ISPs web server. Similarly, when operating a proxy server, the frequently accessed websites are stored in hard disk form and placed on a web server. In the case of a work, this hard disk storage has to represent `any form (whether visible or not) of storage from which the work.can be reproduced'. That hard disk storage will satisfy the requirement of `material form' is apparent from Australian case law. In Roland Corporation v Lorenzo & Son Pty Ltd [30] there was an issue whether the respondent had infringed copyright in the applicant's manuals, which were produced to instruct in the use of the applicant's musical synthesisers. The respondent argued that because the manuals were developed on a word processor, the original work was the digital version and no copyright existed in the printed text of the manuals. [31] Therefore, any copying from the printed text of the manuals was argued not to infringe the copyright in the (digital) manual. Pincus J in the Federal Court of Australia held that the copyright work was the digital or electronic manual and that copying a printout of the manual was an infringement of copyright. [32] A change in form from digital to alphabetic expression would constitute a reproduction of the copyright work. [33] Therefore, storage of copyright materials on an ISP's hard disk will be a material form that might potentially constitute a `reproduction'. [34]
[17] In the case of films or sound recordings, the `copying' must occur in a like form. The issue arises, will hard disk storage represent a like form? It appears that, based on the definitions of `copy' in relation to sound recordings and films, it will.
[18] A `copy of a sound recording' is defined in section 10(3)(c) to mean:
`a record embodying a sound recording or a substantial part of sound recording being a record derived directly or indirectly from a record produced upon the making of a sound recording.'
[19] A `record' is defined as `a disc, tape, paper or other device in which sounds are embodied'. [35] The definition of `record' is wide, such that it may cover digital storage in the form of digital audio tape, compact laser disc or digital hard disk storage. This means that the `like form' for a sound recording is quite a wide concept and would extend to copying in the form of hard disk storage.
[20] In the case of film, `copy' is defined in section 10(1) of the Act as:
`Any article or thing in which the visual images or sounds comprising the film are embodied.'
[21] The terms `article or thing' are wide enough to encompass a hard disk that embodies a film. [36]
[22] In addition to the requirement of `material form' or `like form', whether reproduction or copying has occurred will depend on the objective similarity between the copyright work and the material available from the website and proof that the alleged infringing material was created from the copyright work.
[23] In the situation of simple access provision, packets of information merely pass through the ISPs network connection and, it is arguable that any form of `storage' is too temporary or transient to constitute `reproduction' or `copying'. No explicit guidance is available from the Act. However, it is implicit in the Act that this factual situation would not fall within the notion of `reproduction' or `copying'. In the case of `reproduction' there must be a form of storage from which the work, or a substantial part, can be reproduced. It is difficult to characterise the fleeting moment at which information transmits through an ISPs network connection as `storage'. Further, even if it is `storage', it is hard to see how a work could be reproduced from such a transitory moment. For these reasons, the notion of `reproduction' probably does not cover simple access. In the case of `copying', it is crucial that there is embodiment in either an article or thing or record. Implicit in the notion of `embodiment', like `storage', is something longer than a fleeting moment of fixation, so it is questionable whether simple access would involve `copying'.
[24] It is interesting to note that one of the proposals in the Commonwealth Discussion Paper, `Copyright Reform and the Digital Agenda', July 1997 (`Discussion Paper') is to exclude `temporary and incidental reproductions made in the course of the technical process of electronic transmissions' from the scope of the reproduction right. [37] This proposal would suggest that this activity is presently within the scope of the reproduction and copying rights. On the other hand, it may just as easily indicate that the issue of whether the rights of reproduction and copying cover temporary reproduction or copying is confused, and is sought to be clarified by this proposed exception. [38]
2.1.2 Transmission
[25] Proposed section 189 defines `transmit' to mean:
`(a) broadcast; or
(b) cause to be transmitted to subscribers to a diffusion service.'
Broadcast
[26] In what circumstances will an ISP `broadcast' copyright material? Section 10 defines `broadcast' to mean:
`transmit by wireless telegraphy to the public.'
[27] The broadcast right was recently considered by the High Court in Telstra Corporation Ltd v Australasian Performing Right Association (Telstra). [39] This was a test case brought by APRA against Telstra concerning Telstra's copyright liability for providing music on hold. The court considered Telstra's copyright liability in the following three situations:
[28] The meaning of `transmit' was not explored by the High Court. However, it is important to note that where the caller used a mobile telephone, Telstra was held liable for infringing the broadcast right in all three situations. That is, where Telstra acted to actively provide the music and also where it acted physically only to transmit the music to callers on hold. This decision suggests that physical transmission alone, even where no control is exerted over the actual content being transmitted, will constitute a transmission. In the case of simple access, ISPs do not exercise control over the content that subscribers are uploading and downloading, but this type of service could nevertheless count as a `transmission'. The fact that the transmission must be by `wireless telegraphy' would restrict the instances of transmission of the broadcast kind to situations where the transfer of information across the Internet is conducted by digital wireless transmissions, such as digital broadcast satellite.
[29] In Telstra it was only the meaning of `to the public' that was in contention in respect of the broadcast right. Dawson and Gaudron JJ and Kirby J were the only members of the Court to deal with this issue and held that the words `to the public' incorporated the notion of the `copyright owner's public'. [40] The `copyright owner's public' refers to `the group which the copyright owner would otherwise contemplate as its public for the performance of its work'. [41] In turn, the `copyright owner's public' is indicated by the commercial context of the communication. [42] Thus, transmissions by an ISP are likely to have a commercial colour to them and be `to the public' where they are carried out for profit on the part of the ISP.
Diffusion service
[30] The meaning of `transmitted to subscribers to a diffusion service' is set out in section 26(1) of the Act, which provides that:
`A reference in this Act to the transmission of a work or other subject-matter to subscribers to a diffusion service shall be read as a reference to the transmission of the work or other subject matter in the course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service.'
[31] The first issue is whether an ISP conducts a `service of distributing broadcast or other matter', that is, a diffusion service. Some reference to the meaning of that phrase as interpreted in Telstra would be helpful. The majority in Telstra held that a `service' existed when there was `some system or organisation whereby those intended to be served received the service'. [43] Even if callers did not want to hear the music, the playing of music on hold to callers was a `service' and remained a `service'. [44] The majority also found Telstra to be `distributing' the music, even though the music was received by individuals through their individual telephone connections and might only be heard by one caller at any one time. This was because there was a common source from which the music was conveyed over wires to the various callers. [45] Finally, the meaning of `broadcast or other matter' was read broadly by the High Court, with the exception of McHugh J, to include the provision of music. [46]
[32] Both simple access and value added access involve a `system or organisation' that allows subscribers to use those facilities. Simple access entails a network connection, created by the appropriate configuration of hardware and software, and subscribers accessing the Internet (and uploading or downloading information) via that network connection. Hosting websites and operating proxy servers, which is value added access, involves storage of material on a file system, making available that material to the public via a web server and transmitting it upon request. Therefore, it would be fair to say that a `service' takes place in the instances of both simple and value added access. Both `services' involve `distributing', despite information being transmitted via individual telephone lines or ethernet connections, because the transmission will have originated from a common source of information contained on a web server. Finally, if, according to the majority in Telstra, music can count as `broadcast or other matter' there is no reason why text, images or video cannot also be characterised as such, other than if the majority's interpretation was erroneous. This is arguably so, however, the interpretation remains authoritative for the time being. [47] According to this broad interpretation, the scope of the diffusion right is greatly extended from re-transmitting `broadcast' material to transmitting any type of content. [48]
[33] The next issue is identifying the subscribers to the diffusion service, since it is to their premises that the diffusion service must be delivered. The meaning of `subscriber' was in contention in Telstra. The minority held the view that a person could only be a subscriber if there was an actual agreement between the person operating the diffusion service and the person receiving that service. [49] However, the majority held that pursuant to section 26(5) a person could be deemed a subscriber to a diffusion service where that diffusion service was incidental to a telephone service and they were subscribers to the telephone service. [50]
[34] The majority of ISPs are not common carriers, therefore it is unlikely they will fall within the terms of section 26(5) and their subscribers will not be deemed. The necessary agreement between them and their subscribers will have to be found. However, if a common carrier is also engaging in the activities of a service provider, then section 26(5) may well be invoked. This will depend on when a diffusion service is considered to be `incidental' to a telephone service. It is important that, in future cases, such instances are spelt out and the reasons for this conflation of subscription identified, otherwise any discrepancy in treatment between a person who solely acts as an ISP and a common carrier, who also acts in an ISP capacity, may well seem unfair. [51]
[35] Considering the position of those ISPs that do not also act in a common carrier capacity, a significant portion of both types of access is sold by commercial ISPs and the existence of an agreement creating a `subscriber' will be fairly clear in these circumstances. However, in other cases, ISPs (such as university ISPs) might offer either simple or value added access free of charge and the necessary agreement to create a subscriber may be less obvious or perhaps non-existent. Free access of either kind does not exclude the possibility of an agreement, provided there is some sort of consideration flowing from the user of the Internet. However, it is hard to see what might amount to consideration in those circumstances and it is worth bearing mind that a significant group of ISPs, because of the inability to identify an agreement with subscribers, might fall outside section 26.
[36] The purpose of identifying subscribers to the diffusion service is to identify whether the transmission has occurred over wire, or a path provided by another material substance, to their premises. In the case of simple access, showing that the transmission is to the premises of the subscriber will not prove difficult. In the case of operating a proxy server the transmission will also be to the premises of the person who subscribed to this service. However, where the ISP is hosting a website, it is most unlikely that a transmission to the subscriber's premises will occur. Any transmission will be to the general public, as opposed to the premises of the person who arranged with the ISP to have its website hosted. Therefore, in the case of one aspect of value added access, the provisions of section 26(1) would not seem to be satisfied.
[37] The final issue that remains is identifying who has caused the works to be transmitted to subscribers to the diffusion service. Again, section 26 is relevant to this issue. Section 26(2) states that:
`the person operating the service shall be deemed to be the person causing the work or other subject-matter to be so transmitted.'
[38] Section 26(4) explains that:
`the person operating a service of distributing broadcast or other matter shall be read as a reference to the person who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether he is the person who transmits the broadcast or other matter or not.'
[39] This question need only be determined in the contexts of simple access and value added access that involves operating a proxy server. An ISP, when it provides either of these services, is likely to be the person in the agreements with the subscribers which undertakes to provide them with the relevant service. Thus, an ISP in these instances would be a person operating the service pursuant to section 26(4) and consequently, according to section 26(2), would be the person causing the work or other subject matter to be so transmitted.
[40] In summary, ISPs are most likely to be engaged in transmitting works or films to subscribers to a diffusion service where they are, over a wire medium, providing simple access and are operating proxy servers. Hosting websites probably falls outside this right because any distribution is not to the subscriber's premises.
Discussion Paper 1997
[41] Two new rights are proposed in the Discussion Paper: the right of transmission to the public and the right of making available to the public. The paper also includes discussion and opinion about the liability of both communications carriers and ISPs.
[42] The right of transmission to the public is intended to be a broadly based, technology neutral right. A `transmission' would extend to all transmissions lawfully made [52] in Australia, but without being tied to a particular form of technological transmission. [53]
[43] This right is not supposed to apply to interactive transmissions. The Paper explains that it would apply to:
`transmissions to the public in the traditional non-interactive sense of `broadcasting', that is, the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission.' [54]
[44] The existing public performance rights in the Act would be separate from this new proposed transmission right and this would be ensured by requiring that the definition of `transmission' include use of reception equipment to perceive the material that is transmitted. [55] Finally, the right is restricted to digital transmissions and does not cover distribution of physical copies of copyright material. [56]
[45] The aim of the right of making available to the public is to cover interactive uses, by wired or wireless means, of copyright material. That is, when copyright material is made available to the public `in such a way that it could be accessed at a time and a place chosen by members of the public'. [57] Apparently, the requirement of individual choice is meant to exclude broadcasting from the scope of the new right. [58] The description `by wired or wireless means' is supposed to exclude physical distribution. [59]
[46] The Discussion Paper does not make it clear when it is that material will be `made available'. However, it is arguable that material is `made available' when it is placed on a server of some sort. This is because placing material on a server allows persons to access such material whenever and wherever they choose through an ISP.
[47] The phrase `to the public' is critical to how the proposed new rights will operate. The Paper does not recommend that this phrase is statutorily defined, rather, it is prepared to rely on case law interpretations that designate the relevant public as the `copyright owner's public'. [60]
[48] The Paper does indicate its view of whether certain transmissions or making available would be `to the public'. It considers that transmissions or making available via local area networks or wide area networks would be made `to the public'. [61] However, private telephone conversations and private facsimile transmissions would fail to be transmissions to the public. [62]
[49] The position of ISPs will not be spelt out in legislation. However, the intention is that ISPs will not be considered to have transmitted material or have made it available to the public, `to the extent that they do not determine the content of material accessed via their networks'. [63] This is because the maker of the transmission will be the person responsible for the content. [64] The Paper points out that ISPs will remain subject to liability for authorising any infringing acts. [65]
[50] The Paper identifies UNSW v Moorhouse [66] as representing the general law on authorisation of copyright infringement. The view canvassed in the Paper is that ISPs risk liability for authorising an act of copyright infringement where they `are aware of the likelihood of infringing acts occurring on services provided by them and fail to take reasonable measures to avoid such infringements'. [67] However, as already stated, there will be no legislative enunciation of this view. Rather, the Paper supports the continued application of the law on authorisation on a case by case basis since that is believed to be the best method of dealing with the galloping changes to technology. [68]
[51] There is a real issue as to how the proposed moral rights legislation will operate in light of the proposals in the Discussion Paper. At the simplest level, it would seem that, if the proposed rights in the Discussion Paper are to be implemented into Australian copyright law, the proposed moral rights legislation ought to be made consistent with that approach. This may well necessitate a slowing down of the introduction of moral rights legislation to a pace that permits a full appreciation of how moral rights will function in the context of rights of transmission and making available to the public.
[52] It is worth making some passing comments on how the proposed new rights might affect ISP liability for moral rights infringement. According to the Discussion Paper proposals, ISPs will be subject to liability for authorising infringing acts of transmission or making available, rather than for doing the actual infringing acts. The proposed moral rights provisions that are based on the act of transmitting material, however, do not countenance liability based on authorisation of this act. It is the transmission of material that does not identify the author or of derogated material that triggers liability for infringing the rights of attribution and integrity. This of course raises the question whether moral rights liability based on authorisation should occur. If it is determined that this should occur then a question emerges as to how the principles of authorisation will interface with the notion of `reasonableness', which determines whether moral rights infringement has occurred and which is discussed in detail below. If the law of authorisation does not apply to ISPs in a moral rights context then the instances of their liability will be reduced. This will not be to such a great extent as one might first expect since ISPs will remain directly liable for reproducing or copying copyright material in the course of providing their services.
[53] These first impressions of how the proposed new rights of transmission and making available to the public and moral rights might interface indicate that any interface will not be simple and support the view that the Commonwealth government should consider these proposed legislative changes together. The remainder of this article shall proceed upon the basis of the existing Australian copyright law.
2.1.3 Reasonableness of attribution
[54] It would seem that an ISP, because it is engaged in the `attributable acts' of either reproduction, copying or transmission, will have the responsibility to attribute authorship for all works and films held on websites that it hosts and transmits across its network connection. However, there is a possible relaxation of this responsibility through proposed section 195AQ, which introduces a notion of `reasonableness' for determining when infringement occurs. [69] Proposed section 195AQ(1) states that infringement will not occur if:
`it was reasonable in all the circumstances not to identify the author.'
[55] To determine whether it was reasonable in all the circumstances to not identify the author, proposed subsections 195AQ(2) and (3) list the following factors to be considered:
[56] Clearly, these factors must be considered and applied in light of the objectives of the legislation. At the second reading of the Bill in the House of Representatives, the basis for the introduction of a moral rights scheme was variously described as:
[57] However, the objects of the legislation in themselves do not provide clear guidance as to how the factors to be considered in determining `reasonableness' are to be balanced. Each of these purposes may affect the focus of the balancing exercise. If the regime is meant to satisfy Australia's international obligations, then statutory compliance with these obligations will be important. If the regime is intended to engender respect for the creative process, then the rationale is more community focused than focused on the personality rights of the individual author. If the basis of the regime is sustaining human rights, then the personality rights of authors will be considered more serious and less susceptible to compromise. The problem that emerges from identifying several purposes is that, where no one purpose dominates, an overall direction for the assessment of `reasonableness' of infringing acts is absent.
[58] The factors to be considered when gauging `reasonableness' bear some similarity with the factors to be taken into account when determining whether an alleged copyright infringement is a fair dealing. Sections 40(2) and 103C(2) of the Act, concerned with fair dealing for the purpose of research or study, include the factors of the purpose and character of the dealing and the nature of the work in question. This sort of similarity of factors raises the issue of how the fair dealing provisions and the `reasonableness' test for moral rights will interface. For instance, in the United Kingdom, some of the fair dealing provisions also apply as exceptions to moral rights infringement. [73] Will it be the case in Australia that a finding of fair dealing for the purposes of copyright infringement influences any assessment of `reasonableness' for moral rights purposes? Further, will interpretations of fair dealing factors be carried over into the moral rights sphere? These questions are beyond the scope of this article, but they stress the need for further consideration of the interaction between copyright and moral rights.
[59] How might the `reasonableness' factors be applied in the ISP context? The following discussion will refer only to works but is meant to include films also. The `nature' of the work may cover how `original' the work is. This is not to say, how new or inventive the work is, but rather to suggest what degree of labour, skill and effort was invested in the creation of the work. [74] The greater amount of time and skill invested in the creation, the worthier the author is of obtaining exercisable moral rights. If moral rights are directed towards protecting the author's personality as invested in his or her work, then the more labour, skill and effort that is invested, the greater also the degree of personality that is invested in the work. It is an interesting question whether this factor is meant to encompass the artistic quality of a work. Certainly, it was the intention of the Attorney-General's Department not to draw any distinctions between `pure art' and `commercial art' for the purpose of determining which creators were eligible to hold moral rights in their creations. [75] Instead of carving out exceptions to the moral rights provisions, the government preferred the reasonableness test at the infringement stage. [76] The government's compromise suggests that considerations of `pure art' versus `commercial art' might be relevant to the `nature' of the work. The issue is not how artistic the work is in terms of an aesthetic judgment but rather whether the work is applied primarily for an artistic or a commercial purpose. At this point, the potential overlap between the `nature' of a work and its `purpose' becomes apparent.
[60] The `purpose' for which the work is used would probably encompass whether the ISP is using the work for a commercial purpose and, if so, what degree of commercial use. Where an ISP is providing simple access, and transmits works to their subscribers as part of that service, that use of the work is a commercial one. However, it is not as though ISPs are making a profit out of intentionally transmitting infringing material because they are often not aware of the nature of the works being transmitted. This situation may be compared with when ISPs operate their own website (thereby acting as content providers) and use a copyright work on that site. In this instance, ISPs are making a conscious decision to exploit that work in a direct way and reap a more direct commercial benefit from that infringing activity. Another consideration within this factor might be that simple access or value added access is made available to educational or non-profit institutions. If an ISP transmitted or reproduced a copyright work in the process of fulfilling its obligations to such institutions, then its actions might be viewed as being for a laudable purpose. Certainly, the fair dealing provisions in the Act would appear to support this view.
[61] The `manner' in which the work is used would seem to relate to how it is used and no doubt there will be some overlap with the `purpose' factor. The `manner' of using a work may also encompass how many times an ISP reproduces the work or the size of the audience to which it is transmitted by the ISP. Given the sheer size of the Internet, one might expect that a work is reproduced frequently or transmitted to a large number of recipients.
[62] Another consideration is the `context' in which the work is used. This could include the fact that ISPs operate in a digital environment in the form of the Internet. The effect of operating in such an environment is that the potential public to which reproductions or transmissions could be made is huge. The larger the audience that receives the unattributed work, the more the moral right is eroded. On the other hand, the information must still be found on the Internet and, even with the use of web search engines, there is some inefficiency in the location and retrieval of information that would reduce the size of the anticipated huge audience. This factor might also include how the nature of an ISP inhibits their ability to protect and enforce moral rights. However, the next two factors explicitly deal with such considerations.
[63] Another factor to consider is any practice in the industry in which the work is used, that is relevant to the work or use of the work. The industry here would cover two aspects: providing simple access and value added access. In terms of simple access, it is essential, in order to connect users to the Internet, that transmissions of works are made. For value added access, it is fundamental to that service that information is stored on web servers and hard disks and this necessitates reproductions and copies of works being made. Further, the ISP must transmit the information from the web server to a requesting party. Therefore, the very nature of an ISP embroils it in potentially infringing actions and yet few people would dispute the benefits that ISPs provide.
[64] The factor of difficulty or expense in identifying the author should be discussed keeping in mind the nature of the ISP industry. In relation to simple access, it is unfeasible for ISPs to screen the packets of information that it transmits. [77] A huge volume of material will pass over an ISP's system and this amount is simply too vast to monitor effectively, without incurring enormous expense. [78] Even if an ISP does monitor the content passing over its system, it cannot always identify infringing material. [79] If a work does not have an author attributed, this does not automatically tell an ISP that the right of attribution has been infringed since the author may well have consented to this absence or waived his or her right. Therefore, an enquiry will have to be made to verify whether that is the case or not. If an author is attributed to the work, an ISP would still have to verify whether that person is in fact the author. The difficulty of these enquiries may be compounded if the author and the copyright owner are two separate persons. Such enquiries would no doubt involve much time and expense.
[65] In relation to the activity of hosting websites and operating a proxy server, the practical difficulties that may arise will depend on the number of websites hosted and the size of the proxy server. A large ISP is likely to host numerous websites and operate a large proxy server. In this situation, while there is the technical ability to monitor this information, it will involve exorbitant cost to constantly and vigilantly monitor. On the other hand, a large ISP may well have a deeper pocket from which to pay for this expense, although, it is still unlikely to be deep enough to cover the cost of the necessary amount of monitoring. A smaller ISP, however, may have fewer websites to monitor and operate a smaller proxy server, therefore, the task of monitoring may be feasible. In both scenarios, there remains the difficulty of identifying when an infringement of moral rights has occurred.
[66] The difficulty or expense of monitoring for moral rights infringement may well be affected by the arrangements that ISPs end up making with regard to minimising their vulnerability to copyright infringement. If exposure to copyright liability forces ISPs to monitor content then it may be feasible for them to monitor moral rights infringements at the same time. This could lead to a reduction in implementation costs of monitoring, which makes the option a reasonable one. This observation emphasises the point that copyright and moral rights liability should not be assessed in isolation of one another and that ISPs should be looking to integrate strategies to limit liability as much as possible.
[67] Another situation ought to be reflected upon in relation to this factor. This is where the ISP has been given notice that material on a website that it hosts infringes moral rights or that an Internet subscriber has been uploading infringing material onto the Internet. The argument that the cost of monitoring information is too prohibitive cannot stand up in this context since someone else has already undertaken the task of identifying infringing (or potentially infringing) material. However, if notice of infringing material is going to work as a factor affecting `reasonableness' then a clearer sense of what constitutes `notice' will have to be developed. The issue of effective notice is discussed in more detail in relation to the right against false attribution.
2.2 The right against false attribution
[68] The author of a work has a right not to have authorship of the work falsely attributed. [80] The proposed scheme details the acts of false attribution. These acts may be separated into basically three kinds: implying falsely that a person is an author of the work or adaptation thereof; dealing with the work in some way when one knows that the person attributed as author is in fact not the author of the work and dealing with an altered work as though it was the unaltered work of the author.
2.2.1 Falsely implying a person is an author
[69] In relation to a literary, dramatic or musical work, it is an act of false attribution:
`to insert or affix a person's name in or on the work, or in or on a reproduction of the work, in such a way as:(a) to imply falsely that the person is the author or an author of the work; or
(b) to imply falsely that the work is an adaptation of a work of the person.' [81]
[70] In relation to an artistic work, it is an act of false attribution:
`to insert or affix a person's name in or on the work, or a reproduction of the work, or to use a person's name in connection with the work, or a reproduction of the work, in such a way as to imply falsely that the person is an author of the work.' [82]
[71] In the case of a cinematograph film, it is an act of false attribution in relation to the director (or producer) of the film:
`to insert or affix a person's name on the film or a copy of the film in such a way as to imply falsely that the person is the director (or producer) of the film.' [83]
[72] The essence of this type of false attribution is that a person's name (who is not the author or director or producer) is inserted or affixed to a work or film (or reproduction or copy thereof) to imply falsely that the person is the author (or director or producer) of the work (or film). In their capacity as simple access providers, it is hard to see how ISPs would be guilty of this behaviour. This is because there is no opportunity in this context to tamper with the information being transmitted. In their capacity as hosts of websites, it is also difficult to see how ISPs would fall foul of this provision since they would be exercising no control over the content of the website.
2.2.2 Knowingly dealing with falsely attributed works
[73] Infringement occurs when actions are done in relation to the work or film when the attributor [84] (a person) knows that the person whose name is inserted or affixed is not the author of the work or film. Specifically, in the case of literary, musical or dramatic works, it is an act of false attribution:
[74] It is an act of false attribution in relation to artistic works:
[75] Finally, in relation to a cinematograph film it is an act of false attribution:
[76] The key to all of the above instances of attributable acts is that the person dealing with or transmitting the work or film or performing the work, knows that the person attributed as the author of the work (or director or producer of the film) is inaccurate. Certainly, the ISP must also be engaged in one of the acts of dealing, transmission or performance. It would seem that the most likely act for it to be engaged in is transmission, which has already been discussed in relation to the right of attribution.
[77] It is important to consider when an ISP will be held to `know' that false attribution has occurred. Does it suffice that the author (or director or producer) or his or her representative puts the ISP on notice? In what form must that notice be given? What degree of verification must exist? The proposed legislation says nothing about this. Some assistance may be gleaned from United States copyright law. In Religious Technology Center v NETCOM [88] the plaintiffs in that case held copyright in some literary works. One of the defendants, Erlich, had allegedly posted some of these works onto a Usenet newsgroup. Erlich had gained access to the Internet through another defendant's bulletin board service, and this service gained its connection through the facilities of Netcom. The plaintiffs contacted Klemesrud and Netcom to request that they refuse access to Erlich, but both declined to do so. Klemesrud refused to deny access because the plaintiffs did not prove that they owned the copyrights to the works posted to him. Netcom also refused to deny access on the basis that it would be impossible to prescreen Erlich's postings. Whyte J considered the defendants liability for contributory infringement. His honour held that:
`Where a BBS operator cannot reasonably verify a claim of infringement, either because of a possible fair use defense, the lack of copyright notices on the copies, or the copyright holder's failure to provide the necessary documentation to show that there is a likely infringement, the operator's lack of knowledge will be found reasonable and there will be no liability for contributory infringement for allowing the continued distribution of the works on its system.' [89]
[78] Loughan supports this policy and argues:
`If the service provider cannot determine by all reasonable means if a work is subject to copyright, then a court ought not to imply the requisite knowledge for contributory infringement.' [90]
[79] Should a similar sort of policy suggested by Whyte J and Loughan be applicable to ISPs in the situation of moral rights infringement? It seems fair to apply some notion of reasonable verification before deeming an ISP to have knowledge that a work is falsely attributed. Naturally, what is reasonable verification will depend on the facts of the case. However, in the context of ISPs it is worth bearing in mind that digital watermarking [91] might be relevant to reasonable verification because digital watermarks may be used to establish authorship, ownership and distribution details. Although, the reliability of such watermarking techniques is far from being entirely sound. [92]
2.2.3 Dealing with an altered work as if unaltered
[80] There are also infringement provisions relating to circumstances where a work or film has been altered and is dealt with as though it was unaltered. If the work or film has been altered, by a person other than the author, director or producer, it is an act of false attribution to deal with that altered work or film (or a reproduction or copy thereof) as though it was the unaltered work of the author or the unaltered film of the director or producer, if to the knowledge of the attributor, it is not the unaltered work of the author or unaltered film of the director or producer. [93]
[81] The term `deal' is defined in proposed section 189 as:
`sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute and, in Division 3, includes publish.' [94]
[82] An ISP, in its capacity as simple access provider, would most likely carry out the act of `distributing'. The meaning of `distribute' was explored in Telstra and the majority found that Telstra was `distributing' the music, even though the music was received by individuals through their individual telephone connections and might only be heard by one caller at any one time. This was because there was a common source from which the music was conveyed over wires to the various callers. [95] Information on a website is a common source and this common source is available to be accessed by individual users, who receive the information through their individual telephone connections or ethernet connections. ISPs distribute this information because they transfer it from a common source to the individual user. The primary means of distributing is by allowing packets of information to pass through its network connection. Another means of distributing is sending information from an ISPs web server or proxy server to Internet users. Even where an ISP has no control over the common source of content, based on Telstra, it is still possible for them to be 'distributing' works or films.
[83] To infringe in this instance, the ISP would have to distribute the altered work or film as though it was the unaltered work of the author. Significantly, there is also the requirement that the attributor must know that the work is not the unaltered work of the author. The `attributor' would be the person doing the act of false attribution, which in this context is the person responsible for distributing, that is, the ISP. Thus, the ISP must know that work or film is not the original unaltered version. Again, the proposed legislation offers no guidance as to how knowledge will be determined and so the test of reasonable verification discussed above should probably used as a starting point.
2.3 Right of integrity
[84] An author will have the right of integrity, which is the right not to have the work subjected to derogatory treatment. [96] The essence of derogatory treatment is the doing, in relation to the work or film, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work or film that is prejudicial to the author's (or maker's) honour or reputation. [97] If a person subjects a work to derogatory treatment, that person infringes an author's right of integrity. [98] Thus, if an ISP distorts, alters, mutilates or does anything else in relation to a work or film resulting in prejudice to the author's or maker's honour or reputation, the ISP will have infringed the author's right of integrity. This is most likely to occur where the ISP is acting as a content provider, rather than when it provides simple or value added access. Only when the ISP is in control of the content will it have the opportunity to change the content in a potentially derogatory way. There is also a reasonableness provision in respect of infringement of this kind. An ISP will not infringe the right of integrity if it was reasonable in the particular circumstances to subject the work or film to derogatory treatment. Factors, identical to the factors to be considered in relation to the right of attribution, are to be considered in the overall balance of reasonableness. [99]
[85] There is, however, a further occasion which may amount to infringement of the right of integrity and which is more likely to apply to the activities of ISPs. Where a work or film has been subjected to derogatory treatment, amounting to infringement of the right of integrity, it is also an infringement of the author's right of integrity to do a number of acts in relation to the derogated work. [100] These acts include reproducing the work or copying the film or transmitting the work or film. [101] The likelihood of ISPs engaging in the acts of reproduction or transmission has already been discussed in relation to the right of attribution. The conclusion reached in that section is applicable to the right of integrity. Thus, it is fair to say that ISPs may, prima facie, be found to have infringed an author's right of integrity where they merely transfer over their network a work or film that has been subjected to derogatory treatment by someone else. ISPs may only be prima facie liable because a reasonableness provision also applies to determine whether infringement has occurred. [102] A person will not be held liable for infringement if the person establishes that it was reasonable in all the circumstances to do that act. [103] In the case of ISPs, the consideration will be whether it was reasonable in all the circumstances to transmit or reproduce the derogated work or film. In assessing this question, there is no list of factors that must be considered. This is not to say that some or all of those factors might not fall within this assessment of reasonableness.
[86] There is no need to reiterate how the reasonableness factors might be balanced in an ISP context, except to make a few brief comments that are specific to the right of integrity. The monitoring for infringement of the right of integrity is practically and economically arduous for an ISP. The volume of information flowing over the Internet is a basic problem. However, more difficult is the task of assessing whether there is in fact a change to the work and whether that change is prejudicial to the author's honour or reputation. Digital watermarking techniques may assist in highlighting when works or films have been altered, although this requires that they be sufficiently reliable. Assessments of what counts as `prejudicial' will be inherently difficult judgments for ISPs to make.
[87] A feature of the Internet relevant to assessing the reasonableness of upholding moral rights is the ease with which works can be altered (because they are in digital form) and how this encourages manipulation. It is almost expected that, in this interactive environment, works will be altered or manipulated and indeed the malleability of digital data is held out as a positive quality. Perhaps the expectations of interactivity and manipulation will influence the reasonableness equation so that a greater degree of change to works is countenanced as `reasonable'.
2.4 Consent and waiver
[88] There are provisions in the moral rights scheme to allow an author to consent in writing to an act or omission being done in respect of his or her work. [104] There are also waiver provisions that operate to the exclusion of the consent provisions. [105] A person may by writing waive all or any of his or her moral rights. [106] The waiver may be for the benefit of a particular person or class of persons or persons at large and the waiver can be conditional or unconditional. [107] The waiver may relate solely to specific works or, where there is a course of employment, to future works. [108]
[89] The consent and waiver provisions will not benefit ISPs directly in these situations since it would be financially and physically impossible to obtain such consents and waivers from authors of all relevant works passing over its network connection or contained on websites that it hosts. Rather, if the person operating websites has acted to obtain consents or waivers, then such consents or waivers will possibly encompass the ISPs acts of transmitting or reproducing the works. Such persons may have incentive to attempt to obtain consents or waivers if ISPs insist on an indemnification for moral rights liability from their subscribers. This indemnification should be pursued in any event and it makes sense for ISPs to combine it with an indemnification for copyright infringement.
2.5 Remedies
[90] The author of a work [109] or the author's legal representative may bring an action in respect of the alleged moral rights infringement. [110] The relief that a court may grant in an action for infringement includes:
[91] In determining the appropriate relief to be granted, the court may take into account any of the following:
[92] It is interesting to note that the factors to be taken into account in determining the appropriate relief to be granted mirror some of those factors to be considered in the `reasonableness' evaluation. Thus, certain factual scenarios may impact upon both the issue of liability and the extent of that liability. This is heartening from the ISPs point of view since even if they are found liable, the extent of that liability may be limited in situations where they face practical and economic difficulties in upholding moral rights.
3. Conclusion
[93] ISPs will be exposed to moral rights liability if Schedule 1 of the Copyright Amendment Bill 1997 is passed into law. The degree of exposure will vary depending on the type of activity the ISP is engaged in, namely, simple access or value added access. The pattern that has emerged is that ISPs will be most vulnerable to moral rights infringement where they are administering content than when they are simply providing the mechanisms for connecting to the Internet. However, much depends, at least where the rights of attribution and integrity are concerned, on the reasonableness of ISPs not upholding the moral rights of authors. While this formula has the advantage of flexibility, the downside is that uncertainty exists that thwarts an ISPs ability to make strategic decisions in respect of this issue. This uncertainty is compounded by the failure to identify a central rationale underpinning the introduction of moral rights legislation.
[94] Another significant factor impacting on liability for all three moral rights is if an ISP is put on notice of infringement. What constitutes effective `notice' is not spelled out in the proposed legislation. Case law from the United States suggests that claims of infringement must be capable of `reasonable verification' before they form notice of infringement. Such a test would seem helpful in the Australian moral rights context. The consequence for ISPs is that they will have a responsibility to reasonably verify the legitimacy of a claim of infringement and to act decisively to prevent infringement where that claim is valid.
[95] The above excursion into the realm of moral rights liability has highlighted that it should be considered in tandem with copyright liability. The importance of so doing is brought home by the realisation that implementation of the proposals in the Discussion Paper will significantly alter, as well as confuse, the extent of moral rights liability for ISPs. The similarity between the `reasonableness' equation for moral rights infringement and the fair dealing provisions is another example of overlap. Exploration of this overlap may provide insight into understanding how the `reasonableness' equation will operate. Finally, a broader appreciation of an ISPs liability will benefit their ability to create and implement liability reducing strategies, including monitoring of content, indemnification from subscribers and insurance measures.
Postscript
[96] Since the time of writing this article, the Bill has been passed by both Houses of Parliament and is awaiting Royal Assent. However, the Government withdrew the moral rights provisions, included in schedule 1 of the Bill, and this amendment was passed by Parliament. The reason for this withdrawal was a lack of consensus between the Government and interest groups on the issue of waiver. Apparently, the Government is committed to introducing a moral rights regime, and is hoping to resubmit the legislation, reflecting suitable changes to the waiver provisions, in the short term. [113] This delay offers the Government an opportunity to extend its re-evaluation of the moral rights regime beyond the scope of waiver, to include some of the issues raised in this article. As mentioned above, one such issue is the interface with the proposals in the Discussion Paper. Presently, the Government is working on draft legislation arising out of the Discussion Paper, which will introduce the single new right of communication to the public, covering the same ground as the proposed two new rights that were canvassed in the Paper, but without the previously proposed bifurcation. [114] One hope is that uniformity in the exclusive rights provisions in both pieces of draft legislation will be achieved.
2 Schedule 1 of the Copyright Amendment Bill 1997 (`the Bill') contains a moral rights scheme. The Bill is currently at the second reading stage in the Senate. The following report must be considered by the House of Representatives before the Bill returns to the Senate: Aust Parliament. Senate. Standing Committee on Legal and Constitutional Affairs Copyright Amendment Bill 1997: Final Report (E Abetz, Chairperson) (Canberra: The Senate, 1997) (`Senate Committee Report'). Back to Text.
3 Specifically, Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works 1886. Back to Text.
4 Especially following Telstra Corporation Ltd v Australasian Performing Right Association [1997] HCA 41; (1997) 146 ALR 649. Back to Text.
5 However, it was recommended in the Senate Committee Report at 13 that `screenwriter' be included in the definition of `author' and `maker' of a cinematograph film in Schedule 1 of the Bill. Back to Text.
6 Proposed ss 195AZL and 238(2). However, note that according to proposed s 238(1) the provisions on false attribution (proposed s 195AC(b) and (c) and s 195AD(2)(b) and (c)) apply to acts occurring before the commencement of the legislation because similar provisions currently exist under the Act. It may seem odd that for the remainder of the moral rights they are created retrospectively, but infringed prospectively. Normally both creation and infringement of rights are either wholly retrospective or prospective. Certainly, the administration of the new moral rights regime would be made much simpler and easier if it only applied to future works and films. Note that it was recommended in the Senate Committee Report at 28 that Schedule 1 of the Bill not apply to films made before the introduction of legislation or to works created by authors who died before the introduction of moral rights. This would ameliorate difficulties in applying the new legislation but not entirely so. Back to Text.
7 Patient, S, `The Nuts and Bolts of the Net', .net: the internet magazine, Dec 1996, Issue 26, . Back to Text.
9 `Choosing an Internet service provider', .net: the internet magazine, May 1997, 42-43 at 42. Back to Text.
11 `Power Browsing', .net: the internet magazine: May 1997, issue 32 [Internet] URL: http://www.futurenet.com/netweb/netmag/. Back to Text.
15 Whalley, S, `The Internet: a Threat to Copyright?' (1997) 76 Copyright World 29 at 30. Back to Text.
16 Proposed s 192(2). Back to Text.
17 Proposed s 189. Back to Text.
18 As defined in proposed s 193. Back to Text.
19 Proposed s 195AN. Back to Text.
20 Proposed s 194(1). Back to Text.
21 Proposed s 195. Back to Text.
22 The remaining `attributable acts' are publishing the work, performing the work, making an adaptation of a work (proposed s 193(1)); exhibiting an artistic work (proposed s 193(2)); and exhibiting a film (proposed s193(2)). Back to Text.
23 Proposed s 189. Back to Text.
24 Section 10 would apply because it is an interpretation section that applies unless the contrary intention appears (s 10(1)). Back to Text.
25 `Substantiality' is to be judged according to qualitative, as opposed to quantitative, aspects: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 per Lord Reid; S.W. Hart & Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59; (1985) 159 CLR 466 at 482 per Wilson J. Back to Text.
26 S.W. Hart & Co. at 472 per Gibbs CJ; Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19; (1986) 161 CLR 171 at 186 per Gibbs CJ. Back to Text.
27 The noun `copy' is defined in s 10 of the Act, however, this is not particularly helpful in deciphering the meaning of the verb `to copy'. Back to Text.
28 Ladbroke at 276 per Lord Reid. Back to Text.
29 CBS Records Australia Ltd v Telmak Teleproducts (Australia) Pty Ltd (1987) 9 IPR 440; Zeccola v Universal City Studios Inc (1982) 46 ALR 189. See also McKeough, J & Stewart, A, Intellectual Property in Australia, 2nd ed (Sydney: Butterworths, 1997), para 8.14. Back to Text.
30 (1991) 105 ALR 623. Back to Text.
31 Roland at 630. Back to Text.
32 Roland at 631, 632. Back to Text.
33 `The intention of the definition [of `material form'] appears to be to focus attention upon the content of that which is copyright, rather than the particular form in which it is embodied. A mere change in form (for example, from digital to alphabetic expression) without any change in content gives a reproduction, not an original work.' Roland at 631. Back to Text.
34 Autodesk v Dyason [1992] HCA 2; (1992) 173 CLR 330 also supports this view. The approach of the High Court to the question of `reproduction in material form' was that it includes duplication in digital or non-sensate forms of storage (ie object code) and that, in order to assess objective similarity, works in digital form must be notionally reduced to similar material forms. See p 336, `In these circumstances, the 127-bit series embedded in the EPROM in the Auto Key lock constituted a reproduction in a material form of a substantial part of any actual or theoretical `expression' in binary `notation' of the `set of instructions' constituting Widget C. It follows that the 127 bit series embedded in the EPROM in the Auto Key lock infringed the appellant's copyright in the computer program, Widget C.' Cf the view at para 6.54 of Copyright Law Review Committee Report on Computer Software Protection (Canberra: AGPS, 1995) that `reproduction' in the Act does not clearly cover digital (or invisible) versions of non-digital (or visible) works. Back to Text.
35 s 10(1) of the Act. Back to Text.
36 Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 145 ALR 21 indirectly supports this view. The issue in this case was whether a computer video game satisfied the requirement of embodiment in `an article or thing' (that is, the computer program) such that it could fall within the definition of `cinematograph film' in s 10(1) of the Act. The Full Federal Court held that a computer video game could be characterised as a cinematograph film. Back to Text.
37 Discussion Paper at para 4.55. Back to Text.
38 This is so particularly given the history to this proposed exception, which is a lack of agreement at the WIPO Diplomatic Conference in December 1996 on the nature of the reproduction right in the Berne Convention: see Discussion Paper at paras 3.35 to 3.42. Back to Text.
39 [1997] HCA 41; (1997) 146 ALR 649. Back to Text.
40 657 per Dawson and Gaudron JJ and 694 per Kirby J. Back to Text.
41 692 per Kirby J. See Aplin, T, `The copyright dangers of music on hold: Telstra Corporation Ltd v Australasian Performing Right Association Ltd' (1997) 4:3 E Law- Murdoch University Electronic Journal of Law [Internet] URL:http://www.murdoch.edu.au/elaw/issues/v4n3/apli43.html at paras 35-37 for criticism of this reasoning. Back to Text.
42 658 per Dawson and Gaudron JJ and 692 per Kirby J. Back to Text.
43 654 per Dawson and Gaudron JJ. Back to Text.
44 653 per Dawson and Gaudron JJ and 682 per Kirby J. Back to Text.
45 654 per Dawson and Gaudron JJ and 683 per Kirby J. Back to Text.
46 McHugh's J view was that the reference to broadcast in s 26(1) referred to the definition of `broadcast' in s 10 (664). His honour concluded that the music sent over the telephone wires was not broadcast because it had not first been transmitted to the public by wireless telegraphy (665). The phrase `other matter' was also unable to encompass the music played on hold because its meaning was limited by the word `broadcast' to mean transmission by a means similar to wireless telegraphy (668). Back to Text.
47 See Aplin, paras 47, 48. See also Macmillan and Blakeney, `Internet & Communications Carriers' Copyright Liability' (1998) EIPR 52 at 57, who explain that both sides of this difference of opinion have merit and argue that if the relationship between the provisions of the Act and the Berne Convention were clearer, internationally accepted interpretations could be utilised to avoid confusion. Back to Text.
48 See Macmillan and Blakeney at 57. Back to Text.
49 660 per Toohey J. Back to Text.
50 655 per Dawson and Gaudron JJ and 688 per Kirby J. Back to Text.
51 It is also important from the point of view of ensuring common carriers are not held responsible for a diffusion service where all they do is act as common carriers. This is indeed what occurred in Telstra when Telstra was held liable in the situation where other persons played music on hold to callers and Telstra merely provided the telecommunications infrastructure. Back to Text.
52 It is unclear when a transmission will be considered lawfully `made' in Australia. Some assistance may be drawn from the situation in respect to `broadcast' on the basis of the assertion in the Discussion Paper that the right of transmission is meant to operate in a `broadcasting' sense. However, the subsections cited below relate to issues of subsistence of `broadcast' and so it might not be strictly appropriate to translate them to a transmission, which will only exist as an exclusive right (and not a copyright work in itself). Section 22(5) of the Act provides that, for the purposes of subsistence of copyright, a broadcast,
`shall.be deemed to have been made by the person by whom, at the time when, and from the place from which, the visual images or sounds constituting the broadcast, or both, as the case may be, were broadcast.'If the analogy between `broadcast' and `transmission' is appropriate, then it can be argued that a transmission is `made' when and where the material constituting the transmission was transmitted and that this would have to occur within Australia. Back to Text.
53 Discussion Paper at para 4.9. Back to Text.
54 Ibid at para 4.11. Back to Text.
55 Ibid at para 4.12. Back to Text.
56 Ibid at para 4.13. Back to Text.
57 Ibid at para 4.14. Back to Text.
58 Ibid at para 4.15. Back to Text.
59 Ibid at para 4.15. Back to Text.
60 Ibid at para 4.41. Back to Text.
61 Ibid at para 4.40. Back to Text.
62 Ibid at para 4.44. Back to Text.
63 Ibid at para 4.72. Back to Text.
64 Ibid at para 4.71. For some reason, there is no explanation of who is the person making material available to the public. However, it seems consistent to apply a similar standard of the person responsible for the content. Back to Text.
65 Ibid at paras 4.72, 4.73. Back to Text.
66 [1975] HCA 26; (1975) 133 CLR 1. Back to Text.
67 Discussion Paper at para 4.80. Back to Text.
68 Ibid at paras 4.81, 4.82. Back to Text.
69 This may be compared with the approach to moral rights in the Copyright, Designs and Patents Act 1988 (UK) (`CDPA'), which is to create exceptions to infringement (see for example ss 79 and 81 CDPA). Back to Text.
70 Australia House of Representatives Parliamentary Debates (Hansard) No 10, 1997, 5548 (18 June 1997). Back to Text.
71 Ibid at 5549. Back to Text.
72 Australia House of Representatives Parliamentary Debates (Hansard) No 11, 1997, 6313 (25 June 1997). Back to Text.
73 See ss 79(4)(a) and 81(3) of CDPA. Back to Text.
74 This is following the notion of `originality' in Australian copyright law. Back to Text.
75 Senate Committee Report at 23. Back to Text.
77 Loughan, S, `Service Provider Liability for User Copyright Infringement on the Internet' [1997] Vol 8 AIPJ 18 at 23. Back to Text.
78 United States. Information Infrastructure Taskforce. Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Bruce A. Lehman, Chairperson) (United States: 1995) (`IITF Report') at 115-6; Loughan at 23. Back to Text.
79 IITF Report at 116; Loughan at 23. Back to Text.
80 Proposed s 195AB. Back to Text.
81 Proposed s 195AC(a). Back to Text.
82 Proposed s 195AD(2)(a). Back to Text.
83 Proposed s 195AE(2)(a) and (3)(a). Back to Text.
84 Proposed s 189 states that `attributor' has the meaning given by proposed s 195AB(2). That subsection states that `the author's right is the right to not have a person (the attributor) do, in respect of the work, any of the acts (the acts of false attribution) mentioned in the following provisions of this Division.' As can be seen, the subsection really does no more than say that the attributor is a person. Back to Text.
85 Proposed s 195AC(b), (c), (d). Back to Text.
86 Proposed s 195AD(2) (b), (c), (d). Back to Text.
87 Proposed s 195AE(2)(b), (c) and (3)(b), (c). Back to Text.
88 907 F. Supp. 1361 (N.D. Cal. 1995). Back to Text.
90 Loughan at 25. Back to Text.
91 Digital watermarking refers to data embedding algorithms that embed text, binary streams, audio, image or video in a host audio, image or video signal. See Swanson, M, Kobayashi, M and Tewfik, A, `Multimedia Data Embedding and Watermarking Technologies' unpublished paper (1997) (a copy of which is on file with the author) for a detailed exegesis of the state of this technology and its applications. Back to Text.
92 Swanson, et al. Back to Text.
93 Proposed ss 195AF, 195AG. Back to Text.
94 Proposed Division 3 includes the provisions on false attribution so the extended meaning of `deal' would apply. Back to Text.
95 654 per Dawson and Gaudron JJ and 683 per Kirby J. Back to Text.
96 Proposed s 195AH. Back to Text.
97 See proposed s 195AI for literary, dramatic and musical works; proposed s 195AJ for artistic works; and proposed s 195AK for cinematograph films. In the case of artistic works, derogatory treatment also includes the destruction of the work that is prejudicial to the author's honour or reputation (proposed s 195AJ). Back to Text.
98 Proposed s 195AP. Back to Text.
99 Proposed s 195AR(1), (2) & (3) Back to Text.
100 Proposed s 195AP(3), (4) & (5). Back to Text.
102 Proposed s 195AR(4). Back to Text.
104 Proposed s 195AV. Back to Text.
105 Proposed s 195AZG. Back to Text.
106 Proposed s 195AZG(1). Back to Text.
107 Proposed s 195AZG(1) & (4). Back to Text.
108 Proposed s 195AZG(2) & (3). Back to Text.
109 Proposed s 189 defines author in relation to a cinematograph film to mean the maker of the film and defines `maker' as the director of the film and the producer of the film. Proposed s 189 also defines `work' as including literary, dramatic, musical and artistic works and cinematograph films. Back to Text.
110 Proposed s 195AY. Back to Text.
111 Proposed s 195AZ(1). Back to Text.
112 Proposed s 195AZ(2). Back to Text.
113 See AGD E-news on Copyright, No. 2, July 1998 at [Internet] URL: http://law.gov.au/publications/copyright_enews/frameset.html. Back to Text.
114 See The Honourable Darryl Williams, "Copyright and the Internet: New Government Reforms", Speech delivered 30 April 1998, Murdoch University [Internet] URL: http://wwwlaw.murdoch.edu.au/apipli/events/Agseminar-April98.html and Blakeney and Macmillan. 1998, `Bringing Australian Copyright Law into the Global Age', in E Law-Murdoch University Electronic Journal of Law, vol. 5, no. 1, at [Internet] URL:http://www.murdoch.edu.au/elaw/issues/v5n1/blake51.html. Back to Text.